Friday, August 20, 2004

Morning News

Late last night I posted some notes sent to me by a fellow Columbian from the National Association of State Sentencing Commission’s annual conference in New Mexico. Be sure to look that post over if you're interested in state sentencing.

Now, today's developments...


The Hartford Courant is running an editorial entitled, "Sentencing Ruling Invites Chaos." The editorial comments that, "Blakely will not impact state courts here because Connecticut does not have guidelines that permit longer sentences based on findings outside a jury's purview."


There is a fascinating case out there today from the District Court of New Jersey. Judge Jerome B. Simandale has written an opinion in United States v. Harris, 2004 U.S. Dist. LEXIS 16239 ( No. 03-354 (JBS))(D.N.J., Aug. 18, 2004) in which he rules that sentencing factors need not be charged in an indictment because the defendant was afforded notice that the jury would be considering the enhancements if it returned a guilty verdict.

The case is interesting, if for no other reason that that timing of the Blakely decision and the proceedings in Harris created an opportunity for the judge to issue a unique ruling. On the same day that Blakely was decided, the government rested its case. This gave the judge and the lawyers the opportunity to discuss Blakely before the jury decided the issue of guilt or innocence. Judge Simandale's opinion oozes of pragmatism, stating explicitly in the opening sentence that the court's compromise to accommodate Blakely comes after " twelve months of pretrial proceedings, ten days of trial, and the testimony of twenty-seven witnesses" in the Harris matter. So, the court devised a plan to "manage the continuing trial before it and to protect the rights of the five defendants involved, in light of the new legal landscape (and indeed the uncertainties) created by the Blakely decision."

Under that plan, once the jury returned a guilty verdict, it would consider these six questions (which you'll notice are to be considered 1-5, and then six is considered separately):

1. That the conspiracy continued past November 1, 2001, and that each defendant remained a participant in it;
2. That the amount of loss attributable to each defendant was greater than ten-million dollars;
3. That the offense involved a scheme to defraud more than one victim;
4. That the offense involved more than minimal planning; and
5. That defendants Harris, Lundy, and Wooten played an aggravated role in the conspiracy.

Then, after returning its verdict on these first five factors, the jury would return to hear evidence, deliberate and determine the sixth sentencing factor:

6. That each defendant willfully obstructed the administration of justice during the course of the investigation or prosecution of this matter.

So, do we have a district court split with US v. Medas? Well, sort of but not really. In Medas, the court did not allow the prosecutor to submit a special verdict form listing sentence enhancements once the jury began its deliberations in the guilt phase. Here, after the government rested its case (the same day Blakely was decided), but before the final closing argument, the judge informed the defendant that if he was found guilty, he would submit the enhancements to the jury.

I'm sure you defense attorneys out there will disagree with Judge Simandale's compromise.

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