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April 17, 2006

Recuenco oral argument report

Thanks to a number of helpful attendees, I have heard a few reports concerning this morning's oral argument in Washington v. Recuenco (No. 05-83).  Based on these reports, I no longer think Recuenco is likely to turn out to be a big little Blakely case.  Apparently, the Justices spent a lot of time trying to sort through the particulars of Washington state law, and that fact alone might suggest that the Court could possibly decide to DIG the case.

Even if the case is not sent packing through a DIG, the peculiar case facts in Recuenco may entail a relatively narrow (and thus relatively unimportant?) ruling.  When not debating Washington law, the Justices were apparently concerned with indictment and notice issues; they did not cleanly focus on the big issue of whether clear Blakely sentencing errors ought to be subject to harmless error treatment.

Of course, these are second-hand reports of the argument, and I may have more tea leaves to read once I have a chance to review the official transcript in the days ahead.

April 17, 2006 at 12:26 PM | Permalink


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I was afraid of this; the respondent really muddied up the waters on what should have been a simple issue. The fact that Washington law contains no judge-made procedure for using juries to enhance a sentence for firearms possession says nothing about whether imposing the enhancement without using a jury (in violation of the 6th amendment) constitutes harmless error.

I think the impact of the case should be limited for a much different reason: Recuenco's jury probably determined that the weapon in question was a firearm when it determined he used a deadly weapon. Since the aggravating fact was implicit in the jury's verdict, there's no 6th Amendment violation at all....

Posted by: Steve Sanders | Apr 17, 2006 2:20:39 PM

Except that the state conceded a 6th amendment violation...

Posted by: John | Apr 17, 2006 3:38:11 PM

In response to John's quip, let me clarify by saying that any Sixth Amendment violation has to be harmless beyond a reasonable dount when the jury necessarily determined the fact on which the trial court failed to instruct it. Whether you view it as a harmless Sixth Amendment error, or no error at all, the result is the same.

Posted by: Steve | Apr 17, 2006 5:05:01 PM

What is DIG

Posted by: Welch | Apr 17, 2006 5:50:07 PM

"The Court’s decision to dismiss the writ of certiorari as improvidently granted" was a fear of mine early on and I would not be suprised, this is like "Cotton", on indictments and not the case to make the structural error argument. The question as presentened would force the Supreme Court to acknowledged there is a "verdict on enhancement", a verdict is a jury determination, unless the defendant has agreed to a bench trial. There is no more a verdict; as the constitution envisioned, at sentencing than there is a bargain in a plea, when the government manipulates the guidelines after getting the guilty plea.

Posted by: Barry Ward | Apr 17, 2006 6:06:10 PM

The line of cases from Apprendi (2000) to Blakely (2004) is arguably premised on a different fundamental understanding of the Sixth Amendment jury trial right than is Neder v US (1999), which is the foundation of harmless error analysis in this context. See Scalia's dissent in Neder, which reads like an early draft of Apprendi. That's conceivably where Recuenco could be going, Steve. And just to clarify, Welch (and other non-technicians), "DIG" stands for "Dismissed as Improvidently Granted," meaning that after reading the briefs and possibly even after hearing argument, the Supreme Court Justices realize that the case is not a suitable one for setting the important precedent they orginally had imagined it might be, and so they drop it from the calendar, leaving the lower court opinion in place but without a Supreme Court endorsement.

Posted by: Peter G | Apr 17, 2006 8:55:58 PM

Thanks Peter for the explanation. It's a shame that the real issue was never addressed.

Posted by: Welch | Apr 17, 2006 9:54:06 PM

Welsh, don't jump to conclusions based on the oral argument. The proof is in the pudding -- will there be a DIG order in a week or so, or will there be an opinion in May or June sometime? Only time will tell. No one can necessarily say, based on the oral argument; sometimes the justices tip their hands, and sometimes they just don't.

Posted by: Peter G | Apr 17, 2006 10:03:54 PM

As I've noted in an e-mail directly to Peter, there are actually two reasons why the Court might DIG the case:

1. Because the omitted sentence-enhancing fact of firearms possession was implicit in the jury's verdict. If the jury actually found the fact, then the SCOTUS cannot use this case to decide whethe Apprendi errors are structural. However, that would mean that the Washington Supreme Court improperly afforded Recuenco a remedy, and I think it would be important for the SCOTUS to say so (and, in the process, elaborate on Scalia's Neder dissent) rather than toss the case outright.

2. The Court might adopt Recuenco's suggestion that factors unique to Washington law make harmless-error analysis impossible, even if Apprendi errors aren't strucural. I've already written an article, which Doug was nice enought to post, explaining why I think that argument is wrong.

At all events, if the Court DIGs the case, it probably will not explain why, and we will all be left speculating as to the reason..... I can't wait until the argument transcript is posted!

Posted by: Steve | Apr 18, 2006 10:51:30 AM

as a long time NON practicing attorney, attending first ever argument, I did think the Justices got side tracked, because the particulars of WA state law are really too bizarre to get one's thought around. I, too, want to see the transcript, because I made a note that one presenter said that under WA state law a handgun is not a firearm. Either I heard wrong or "firearm" is some term of art up there. J. Ginsburg especially was confounded by the seeming contradictions in the plain meaning of the words. The error seemed to be in the form given to the jury. But, my impression was the court posed several hypos to try and draw out from counsel, exactly what they saw as the essence of this case. Sorry I had not the preparation from SCOTUS blog to even know what the case was about before hearing the arguments, because there sure was a lot of muddy water.

Posted by: Lee | Apr 18, 2006 7:00:54 PM

I am a student at Auburn University and I am writing a paper on this case for my COnstitutional Law class. I am supposed to entail how I believe all the justices would vote. I really have enjoyed reading your blog on this case. The information on the results of this case is turning out to be very limited I am having a problem figuring out Breyer and Kennedy. If anyone has any suggestions they would be greatly appreciated.

Posted by: Louisa Thompson | Apr 20, 2006 12:04:34 PM

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