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June 26, 2006

SCOTUS says Blakely errors can be harmless and tie can go to death

Deciding the only Blakely case and the most intriguing death penalty case it faced this Term, the Supreme Court today handed victories to prosecutors in Washington v. Recuenco (background here) and Kansas v. Marsh (some background here and here and here).  Here is the early report from SCOTUSblog on these two decisions:

Dividing 5-4, the Court ruled that a state may constitutionally require the death penalty if mitigating and aggravating factors are in equal balance -- a decision that upheld Kansas' capital punishment scheme. Justice Clarence Thomas wrote the lead opinion.

In another ruling written by Justice Thomas, the Court ruled that failure to submit a sentencing factor to a jury is not a "structural" error and thus may be excused as "harmless error."

In addition, the Court also ruled on right to counsel.  According to SCOTUSblog, "the Court ruled that a conviction must be reversed if the accused was deprived, even if in error, of the defense lawyer of choice." 

I hope to read these decisions over lunch and then provide some detailed commentary this afternoon.  In the meantime, here is an early AP report on Marsh.

UPDATE:  The Supreme Court website now has opinions in Recuenco here, Marsh here and the counsel case here.  Happy reading.

June 26, 2006 at 10:30 AM | Permalink


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On a quick reading of Recuenco, one of the biggest surprises is that Justice Scalia -- without explaining why in a concurring opinion --joined the majority opinion in spite of his dissent in Neder (failure to submit element to jury is structural error) and the views he expressed in Apprendi, Ring, Blakely and Booker. The only rational explanation that coms to mind is that Justice Scalia has accepted the Neder majority's holding for stare decisis purposes, and so feels logically compelled to joing the Receunco majority's holding.

For us federalism buffs, one of the most important statements in the majority opinion comes in footnote 1 and states that "Respondent’s argument that, as a matter of state law, the Blakely v. Washington, 542 U. S. 296 (2004), error was not harmless remains open to him on remand." This means that the Washington Supreme Court remains free on remand to accept Recuenco's principal argument (i.e., that the State court's earlier remedial rulings preclude harmless-error analysis -- an argument I disagree with), or to do what the New Jersey Supreme Court did in State v. Franklin (i.e., conclude that Apprendi errors are structural as a matter of state remedial law. See Steven G. Sanders, New Jersey Goes Its Own Way, 182 N.J.L.J. 237, Oct. 24, 2005, at 29.)

Posted by: Steve | Jun 26, 2006 11:43:28 AM

This is also the point of Stevens' dissent. The state court can do this anyway so why do we have this case?

Posted by: Anon | Jun 26, 2006 12:24:46 PM

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