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April 10, 2006

Why Recuenco is a big little Blakely case

After granting cert way back in October, next Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis or instead are so-called structural errors.  The intersection of Blakely issues and appellate review issues makes Recuenco hard to unpack easily, but I hope to provide in the week ahead  some detailed coverage of what to expect in Recuenco.  In this first post, I wanted to note some reasons why a seemingly little Blakely issue still makes for a big (and messy?) case in Recuenco:

1.  Justice Scalia, as detailed here, has long been a vocal advocate against harmless-error review in the context of Sixth Amendment jury trial violations.  It will be interesting to see not only if Justice Scalia sticks to his guns in Recuenco, but also if he might brings new Justices Alito and Roberts along for the ride.

2.  Recuenco, though a state case, could in various ways impact a range of Booker and post-Booker appellate review issues in the federal courts.  (In a future post, I will cover more fully the very complicated intersection of harmless/structural error doctrines and plain error doctrines.) 

3.  Especially with the prior conviction and mandatory minimum exceptions to Blakely on seemingly shaky ground, a ruling in Recuenco could greatly impact the ripple effect of any future expansions of Blakely.

4.  As hinted in point 1, Recuenco is the first opportunity for Chief Justice Roberts and Justice Alito to weigh in (or not weigh in) on the Supreme Court's Apprendi-Blakely-Booker Sixth Amendment jurisprudence.  Especially with many other Blakely-Booker issues on the Court's horizon, Recuenco should provides some valuable tea leaves for reading about the new justices' take on the Sixth Amendment.

Most of my Recuenco posts are assembled in this archive, and here are highlights of the basics:

April 10, 2006 at 06:45 PM | Permalink


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