Thoughtful thoughts on Rita and reasonable doubt

Over at the Ninth Circuit Blog, Steve Sady has this interesting post about reasonable doubt and Rita.  Here is a taste:

One of the most interesting aspects of Rita was the seemingly conscious limitation of the reasoning to Booker’s Sixth Amendment holding.  This limitation leaves completely open the critical distinction between Sixth and Fifth Amendment jurisprudence: the reasonable doubt standard is simply more important than the identity of the finder of fact.  We know this from retroactivity doctrine, which requires retroactive application of new constitutional rules related to reasonable doubt but not to jury trial; from the sanctity of the form of the rights, which prevents dilution of the reasonable doubt standard, while permitting non-unanimous and fewer than twelve member juries; and the language used in characterizing the rights, which finds juries basic to Anglo-American jurisprudence, while the reasonable doubt is standard is of “transcending value.” The key throughout is our society’s dedication to a very high standard of reliability before a fact can justify additional punishment.