Wednesday, August 04, 2004

Blakely News and Information

Washington Legal Foundation

I've returned from the Washington Legal Foundation's Blakely conference. The conference was full of lawyers (especially DOJ), press and students, all eager to learn about Blakely.

I'll share a perspective that was offered during the conference that merits repeating. One of the panelists, I'm not sure which, made a comment regarding the Blakely standstill in the courts. The panelist suggested that many defendants want finality to their sentence. They want to do their time and be done with it. The Blakely "limbo" (which is further documented later in this post), he pointed out, frustrates many defendant's desires to move on with their lives.

A great deal of the Blakely discussion that goes on this blog and others like it, is very academic. I get many emails from prisoners and people facing jail time asking me for help with their case. Unfortunately, I can't help other than by running this blog, but it was good to hear about Blakely from a defendant's perspective today.


Chicken Soup for Your Sentencing Soul? The Washington Post has a story entitled, "Court Offers Guidance on Sentencing In Md., Va.." Consider this passage from the article which is in reference to the 4th Circuit's ruling in Hammoud:

"It's innovative," said Steven L. Chanenson, a Villanova University law professor and former federal prosecutor. "It's kind of like the chicken soup theory: I'm not sure how much it's going to help, but it can't hurt."

NPR has an audio piece on Blakely, featured are:

David Savage, Supreme Court reporter for the Los Angeles Times
James B. Comey, U.S. deputy attorney general
Douglas Berman, law professor at the Moritz College of Law at the Ohio State University

Update: The Tuscon Citizen is running a very good Associated Press article entitled,"Lawyers still struggling with Supreme Court ruling on prisoner sentencing."

Developments in the courts

Talk about bad timing. Imagine having your sentenced affirmed on June 23, 2004 and then a day later, Blakely is decided. You then petition for a rehearing, raising Blakey issues and the court says that because you didn't raise the issue on the 23rd, you're out of luck. It happened in the 11th Circuit in US v. Levy, 2004 U.S. App. LEXIS 15924 (11th Cir., 2004) (per curiam). Ouch! Is it me, or does it rub you the wrong way that none of the judges put their name on this opinion?

Several courts are holding tight for the moment. The 9th Circuit in US v. Lamere, 2004 U.S. App. LEXIS 15874 (9th Cir., 2004) and United States v. Minter, 2004 U.S. App. LEXIS 15878 (9th Cir., 2004) has put some sentencing appeals on hold until Blakely is a little clearer.

From Ohio - the Court of Appeals in Ohio for the Second Appellate district has hinted that Blakely does not require the jury to authorize consecutive sentences in State v. Sour, 2004 Ohio 4048, P6 (Ohio Ct. App., 2004). In Sour, the court rules that there is no Blakely problem because the court relied on facts admitted by the defendant and his prior convictions. So, that comes close but isn't on point.

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