Friday, August 06, 2004

A Blakely Blockbuster

Chief Judge Sven Erik Holmes has just issued an opinion in US v. O’Daniel, No. 02-CR-159-H (N.D. Okla. August 6, 2004), which if I had to guess, will generate a lot of discussion.

The court finds that the guidelines can be applied in a manner consistent with Blakely. The truly exciting part is how the court arrives at that conclusion. Chief Judge Holmes appears to have taken Justice Scalia’s point that, “This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment,” to heart.

Referencing a four point plan issued on July 8th, Judge Holmes appears to do exactly what many hope the Supreme Court will do in a few months: provide a blueprint for a constitutional determinate sentencing system. In Chief Judge Holmes’s words, “The various elements of the Plan, operating together, are intended to maintain the workability and fairness of the Guideline system, while fully protecting each defendant’s Sixth Amendment rights under Blakely.”

Wow. Get the opinion here (warning, this is a pretty big pdf, 972 kb).

Here’s the plan:

1. The Court will only accept a plea of guilty accompanied by a Sixth Amendment waiver of jury that expressly applies to both guilt or innocence and to sentencing. If a defendant does not desire to waive his or her jury rights in all respects, a jury trial on all relevant issues will ensue in accordance with the Sixth Amendment.

2. For those cases resolved by a plea pursuant to such a comprehensive waiver, judicial factfinding at sentencing will require that any contested enhancement or departure must be based on facts established beyond a reasonable doubt in accordance with the federal rules of evidence. The Court recognizes this may have significant consequences, particularly in areas such as relevant conduct, determining amounts (e.g. drug quantities and dollar amounts) and role in the offense. Nevertheless, the Court believes the language in Blakely equating judicial factfinding with jury factfinding as a matter of Sixth Amendment jurisprudence implicitly, if not explicitly, requires the application of such enhanced evidentiary standards.

3. For those cases that go to trial, facts necessary to support relevant sentencing enhancements and departures will be set forth on the verdict form for the jury to find beyond a reasonable doubt. A mechanism will be established whereby all parties have full notice of such potential enhancements prior to trial. The Court will give the jury such instructions as are necessary and appropriate to make these findings of fact.

4. The United States should include significantly more detail in its charging documents. For those cases that are resolved by entry of a plea, this will reduce the amount of judicial factfinding needed at sentencing. For those cases that go to trial, the jury will have a more complete understanding of the questions that will be presented on the verdict form as matters to be proved beyond a reasonable doubt. The Court anticipates that in some cases that go to trial involving certain sentencing enhancements, such as relevant conduct, particularly relevant conduct, evidence regarding such enhancements may not be admissible because it may be of limited probative value in proving the crime charged and highly prejudicial. Only in special cases, for good cause shown, will the Court utilize a bifurcated procedure whereby guilt or innocence will be considered in a first phase and sentencing evidence will be offered in a second phase. Specifically with respect to relevant conduct, since the United States hereafter must prove all relevant conduct beyond a reasonable doubt in any event, wherever possible the United States should consider simply including any such relevant conduct allegations as part of the crime or crimes being charged.

I'll be interested to see how they draft and explain a waiver that adequately avoids the prohibition against sculpting a process to encourage a sixth amendment waiver, and at the same time constitutes a knowing and intelligent waiver as required...its difficult to imagine how a waiver can avoid Blakely without being sculpted to do just that.
Here is the waiver of jury form used by the Northern District of Oklahoma:

COMES NOW the undersigned defendant, and having been fully apprised of my rights, do hereby WAIVE my SIXTH AMENDMENT RIGHTS to a jury IN ALL RESPECTS both as to guilt or innocence and as to sentencing.
Accordingly, I hereby CONSENT that all matters in the above styled and numbered criminal proceedings be determined by the Court in accordance with Rule 23, Rules of Criminal Procedure.
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