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April 18, 2006

If a Blakely case is argued in the woods...

and no one reports on it, does it make precedent?

Sorry for the silly metaphysical question, but I am a bit stunned that I cannot find a single press account or any other kind of coverage of the Supreme Court oral argument yesterday in Washington v. Recuenco (No. 05-83).  Even the folks at SCOTUSblog did not even bother to provide a preview of the case (as seems to be their custom for all SCOTUS cases) the time to mention Recuenco.

Because the issues in Recuenco concerning the nature of Blakely errors are opaque and perhaps of limited significance, I did not expect the Recuenco oral argument to get a lot of attention.  But now I am thinking Recuenco might set some sort of record for least-discussed Supreme Court case.

Recent related Recuenco coverage:

April 18, 2006 at 07:29 AM | Permalink


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Tracked on Apr 18, 2006 11:56:21 AM


Apparently we have to wait for the transcript to find out what really happened at argument. It would be nice if the Court would make the audio tapes available routinely, not just in high profile cases.

Posted by: Kent Scheidegger | Apr 18, 2006 10:43:57 AM

From my first-hand account (via a box seat nonetheless--had to throw that in), there was substantial debate over the intricacies of Washington law. There was also a good deal of discussion regarding the nature of the firearm-deadly weapon distinction in terms of the weapon's operability or functionality, as well as the specifics of the definitional framework of firearms and the like under Washington law.

Counsel for both sides spent a large portion of their arguments either analogizing or distinguishing the Neder case, which was partially a function of the Court's persistent focus on posing hypothetical after hypothetical (with Justice Kennedy leading the charge) that implicated the Neder precedent. In the end, counsel for Recuenco seemed to have a difficult time distinguishing this case from Neder

Finally, there wasn't much mention of the Apprendi/Blakely context in which this case seemed to reside. The only time the words were uttered was during counsels' openings (I don't think the Justices ever mentioned either case).

Overall, I got the feeling--the perception of which is of course very limited in an oral argument setting--that the Court didn't seem all that concerned with any Apprendi/Blakely implications. The sense was that the reasoning of the Washington Court of Appeals, as opposed to the Washington Supreme Court, resonated more with the Justices. The mandate of Apprendi/Blakely wasn't felt because I believe this case was a poor vehicle for determining the line between harmless error, which doesn't offend, and structural error, which might fail the Apprendi line.

The bottom line seemed to be that the only mistake was giving an incorrect form. The jury convicted Recuenco with a deadly weapon enhancement because they weren't given the opportunity for the firearm enhancement. But there was only one weapon at question in this case, a firearm. Therefore, because the jury found that Recuenco was armed with a deadly weapon, it was clearly the firearm to which they were referring so a firearm enhancement seems warranted, as the trial judge determined at sentencing.

Posted by: Shawn Davisson (student) | Apr 18, 2006 3:31:56 PM

Shawn's last paragraph gives rise to the following big question: if the jury actually found use of a firearm, does that mean the SCOTUS will DIG the case (because it can avoid deciding whether Apprendi errors are structural), or will it reverse the Washington Supreme Court's judgment on the much more limited ground that there's no problem affirming an enhanced sentence where, as here, the jury implicitly found the omitted sentence-enhancing fact?

Posted by: Steve | Apr 18, 2006 3:51:43 PM

My response to Steve's inquiry is that I didn't get the sense from the questions asked by the Justices that the Court was questioning the "providence" of cert in this case, at least not to the extent that a DIG may result. My very inexperienced opinion is that the Court may have realized in hindsight that a summary reversal of the Washington Supreme Court was warranted because they incorrectly applied the Apprendi/Blakely line to a truly harmless error with no such 6th amendment implications. Accordingly, I perhaps see a per curiam in the future, or a significant majority, holding that (as Steve indicated) the jury implicitly found a firearm enhancment when they concluded beyond a reasonable doubt that the crime was committed while armed with a deadly weapon, where the only weapon at issue was indeed a firearm. Again, this case seems a hopelessly poor vehicle to define the harmless error/Blakely structural error line because the only viable (broadly defined) argument for Recuenco could be that jury nullification would have occured if the correct form would have been provided to the jury. This seems highly unlikely given the fact that a deadly weapon enhancement was found BARD. If this isn't a harmless error--even in a post-Blakely landscape (unlike Neder)--I am not sure what is.

Posted by: Shawn Davisson (student) | Apr 18, 2006 5:03:11 PM

Shawn wrote: " If this isn't a harmless error--even in a post-Blakely landscape (unlike Neder)--I am not sure what is."

Well, that's the $64,000 question; if the jury implicitly found the omitted fact (and if the appellate court can so conclude beyond a reasonable doubt), then it really raises the question whether there was a 6th Amendment error at all. Sure -- the judge didn't instruct the jury on the issue, but the jury's factfinding encompassed that issue. I'd be much more comfortable concluding that there's been no error at all (as opposed to a harmless one) in this limited circumstance.

Posted by: Steve | Apr 18, 2006 5:21:54 PM

Steve makes a very good point and frames very well what may--in my opinion--become the ultimate question for the Court behind closed doors: Is this actually a harmless error case, where the error would indeed seem harmless, or is this an "error-less" case, where the 6th amendment is not even implicated (which may raise the possibility of a DIG). Perhaps the latter may seem more comfortable, but the former may be more appropriate given the overt error that took place--form over function?

Posted by: Shawn Davisson (student) | Apr 18, 2006 5:32:47 PM


How to define the "error" surely presents the Supreme Court with an issue to decide. After all, the Washington Supreme Court acted in the name of the federal Constitution when it afforded Recuenco a remedy. And while the Supreme Court is not a court of error-correction, I think it would be a shame if the Court did not take the step of adopting the reasoning from Scalia's Neder dissent (i.e., appellate court may affirm where omitted fact is implicit in the verdict) to reverse the Washington Supreme Court's judgment.

I know Jeff Fisher is cursing me for saying this publicly (and questioning my bona fides as a criminal defense attorney to boot), but that's my honest opinion as a dispassionate appellate litigator.

Posted by: steve | Apr 18, 2006 5:56:03 PM

Fear not. The standards for making a case precedential are relatively low these days. Even "My Cousin Vinny" is worthy as persausive authority in a U.S. Supreme Court case.

Posted by: ohwilleke | Apr 19, 2006 11:36:30 AM

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