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Wednesday, July 14, 2004

Law - More on Blakely

Cherry-picking through the now-voluminous online materials, here are three interesting/informative articles.

First, from Slate, an article that begins:

It was the cruelest of lawyer jokes: A man walks into a lawyer's office and says he's been indicted with partners on multiple counts of stock fraud. He sees the government's case as weak and wants to go to trial. The lawyer informs the stunned client that if he's convicted on only one count, the jury's not-guilty verdict on the other charges means little under the Federal Sentencing Guidelines. Why? A defendant may be punished for acquitted conduct if the judge merely believes he's guilty. The punch line: You can win at a trial only if there's a complete acquittal. If you're convicted of anything, you can be punished for everything.

It's not a very funny joke. Since the guidelines' advent, in the wake of the Sentencing Reform Act of 1984, only federal prosecutors have been laughing.

But late last month, the laughter stopped when the Supreme Court handed down its decision in Blakely v. Washington. * * *

Second, a 30-page 2nd draft of an article to be published in the Federal Sentencing Reporter later this month, by law professors Nancy J. King and Susan R. Klein, titled Beyond Blakely. From the intro:
Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely’s sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In Part III, we discuss Blakely challenges raised in cases on direct and collateral review. Finally, in Part IV, we collect some of the various options for reform open to Congress.
Finally, for now, I asked in an entry on July 8 (was it only last week?) "Will Blakely impact Martha Stewart sentencing?" Clearly it may. See this article from Newsday, which reports that:
Just a week before Martha Stewart is slated to be sentenced, her lawyers have asked a judge to toss out the federal sentencing guidelines when considering Stewart's fate, citing a recent Supreme Court ruling.

In motion papers filed with Manhattan U.S. District Court Judge Miriam Goldman Cedarbaum late Thursday, Stewart's lawyer, Robert Morvillo, asked her to declare the guidelines unconstitutional. If granted, Morvillo's motion could mean that Cedarbaum would have more discretion in deciding a prison sentence that is substantially less than the current estimated range of 10 to 16 months and instead impose a term of as little as probation.

And from the Slate article cited above:
Right now, judges, prosecutors, and defense lawyers are all over the map. Martha Stewart's lawyers are already seeking a Blakely ruling that the guidelines are wholly unconstitutional. They're asking the judge to sentence her, under discretionary pre-guidelines law, to probation rather than the prescribed guidelines range of 10 to 16 months. A federal judge in Utah also wrote a lengthy opinion concluding that where sentencing enhancements would offend Blakely, the guidelines should be scrapped altogether, and sentences passed under pre-guidelines law, although influenced by the guidelines. The Utah decision offers no support to Stewart, however, because Stewart's case does not involve Blakely-type enhancements, thus forcing her lawyers to argue that the entire federal sentencing act is unconstitutional.

Posted by Marcia Oddi on July 14, 2004 08:41 AM
Posted to General Law Related