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February 10, 2006

Sorting through Blakely error and Recuenco

I have be wailing for a long time about the many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention (which in part accounts for my kvetching again and again about SCOTUS taking so many death penalty cases).  Thus, you'd think I'd be happy that SCOTUS, as detailed in a series of posts from last October (here and here and here), granted cert in Washington v. Recuenco to explore whether Blakely errors can be subject to harmless-error analysis.  However, because of the nature of the Recuenco issue and its procedural posture, it seems that SCOTUS has selected a case (from a cert pool filled with many pressing Blakely/Booker issues) that could engender more confusion than clarity.

Recuenco could make the post-Blakely world even messier because the defendant's brief (available here) argues that harmless-error review "is impossible here because of an unusual circumstance under state law."  In other words, the defendant (who prevailed below) seems to be contending that the Supreme Court ought to just dismiss Recuenco as improvidently granted.  And, because the defendant has uber-SCOTUS-litigant Jeff Fisher on his team, one can expect the Court will give careful consideration to the idea that it ought to just make the case go away.

"But not so fast," says Steven Sanders in a forthcoming article in the New Jersey Lawyer, which carries the terrific title "Is Washington v. Recuenco a Big Fat Dud?".  Steve argues in this article that any argument suggesting that SCOTUS "should decline to resolve a question of immense importance to prosecutors and defense attorneys alike ... is fundamentally misguided."  Available for download below, Steve's short article provides a useful primer on Recuenco and leads me to the conclusion that, no matter what SCOTUS does, the case could well engender even more post-Blakely confusion.

UPDATE:  Steve has produced a slightly revised version of his article (as of Feb. 17, 2006), which is available below:

Download sanders_recuenco_article_revised_00023455.pdf

February 10, 2006 at 12:51 PM | Permalink


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The Supreme Court in Recueco must decide whether the error, no matter what adjective, plain, harmless or structural, is used; affected the verdict. The verdict is a jury determination, not an “extra-verdict” finding, not a judge found fact at sentencing, a verdict is a verdict by a jury and nothing else. Booker type errors occur post sentencing when “other verdicts” are determined without any of the structure of a fair trial. The judge has sent the jury home. The rules of evidence are in the judge’s chambers and the rules of procedure are taken from a civil proceeding where a preponderance of the evidence is the standard. The “Structural Error”, Non-harmless, Plain Error occurs when the post tribunal process starts without the constitutional guarantees thought so important it was written in the Constitution and reiterated in the Bill of Rights. When the founding fathers repeat themselves, it should reverberate throughout the courtrooms. Post-verdict verdicts deprive defendants of all fair trial rights, that ought to be the end of the matter.

Posted by: Barry Ward | Feb 10, 2006 2:20:02 PM

Doug, I'll go out on a limb and predict a
unanimous decision in favor of Recuenco,
holding that Blakely error can never be
harmless, with the opinion written by either J
Justice Scalia or Justice Thomas. bruce

Posted by: bruce cunningham | Feb 10, 2006 2:28:52 PM

Sometimes it’s a blessing not to be a lawyer. Maybe Martians make decisions based solely on the fact that someone committed a crime, but that is not the way human beings behave. At least that is what cognitive scientists tell us. So, someone committed a crime. What difference does it make? What counts for sentencing purposes is what a decision maker, acting for the State, (1) believes about that person having committed a crime, (2) believes about that person having committed a criminal offense, and (3) believes about that person being a criminal offender. Human beings cannot make rational decisions without first formulating beliefs about the situation in question. First the problem must be framed and proven. Then decision makers respond, starting with one or more beliefs about each way the problem was framed. We can think of these beliefs as sentencing allegations such as “the subject disregarded the States warning not to act in a particular way” or “the subject has a 95 percent probability of committing another robbery unless he is incapacitated.” These beliefs must also be substantiated by evidence. Then the decision maker is in a position to complete the sentencing process.

Two kinds of evidence are needed. It must be proven beyond a reasonable doubt that the subject committed a crime. If this allegation is proven then it is self-evident that the person in question committed a criminal offense and is a criminal offender. Then all of the decision maker’s beliefs about the situation (sentencing allegations) must be substantiated by a preponderance of the evidence or by clear and convincing evidence. Beliefs cannot be proven beyond a reasonable doubt because they always have an open texture.

Posted by: Tom McGee | Feb 10, 2006 8:00:13 PM

I would respectfully suggest that Steven Sanders' article misperceives the fundamental
principles underlying Blakely and therefore muddies the waters on what the harmless error issue in Recuenco is all about.

Steven takes the position that the harmless error question is whether "a state appellate court, applying Chapman, may ask whether the same sentence would have been imposed had the
defendant received a jury trial.." p.4

In my view, Apprendi/Blakely is not about sentencing. Rather, they are about who convicts
someone of a crime--a judge or a jury. By definition, juries have no constitutional role to play in criminal sentencing. The Sixth Amendment, upon which Blakely is solely based, talks about a right to a jury trial only in "criminal prosecutions".

There is an "M.C.Escheresque" quality to asking the question of whether the absence of a jury affected the jury's verdict. I believe that is the harmless error question that the Supreme Court will address in Recuenco. And the answer will be a resounding reaffirmation of the fundamental Blakely holding that juries cannot be "circuitbreakers in the machinery of justice" if their decision is merely a preliminary to a verdict by a judge- a "lone employee of the state"-- finding a defendant guilty of the "crime the state actually seeks to punish."

The reason I am predicting a unanimous decision in Recuenco's favor is because the Blakely five will hang together and Roberts, Kennedy, Breyer and Alito will concede that , while they don't like Apprendi and Blakely, it is the law and to rule otherwise would defy the logical force behind the Blakely holding.


Posted by: Bruce Cunningham | Feb 10, 2006 11:14:48 PM


I hate to burst your bubble, but I have NOT taken any sides (in my article) on the question whether Blakely errors are or should be structural. (For what it's worth, I personally believe that Blakely errors are, and should be, deemed structural.) I have phrased the Chapman question the way you describe it ONLY to show that, contrary to the respondent's main argument, Recuenco actually presents the Supreme Court with a substantial federal question to resolve.

Frankly, I find it amazing how many people have skipped over the central point of the article -- i.e., that the Supreme Court should not dismiss the writ as improvidently granted -- to take issue with a conclusion on the merits that appears nowhere in the article. It goes to show that passion for the merits of the issue often obscures any inquiry into whether the Supreme Court ought to reach the issue in the first place.

To sum up, the Supreme Court will have to frame the Chapman question (in a way you and I find anathema) only if it deems Blakely errors non-structural. My only point is to show that the Supreme Court's resoluton of the structural-error question in Washington's favor would have a material impact on Recuenco's judgment, which is all that's necessary to allow the Supreme Court to reach the merits.

Posted by: Steve Sanders | Feb 11, 2006 11:05:01 AM

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