Thursday, September 30, 2004

Judicial Conference Blakely Materials?

Thanks (Many Thanks!) to a correspondent with a judicial return address, I have come into possession of what appear to be the materials handed out during the Blakely talk at the Judicial Conference last week. (As I think I mentioned earlier, I understand that Judge Jane Magnus-Stinson of Marion Superior 6 gave the talk.) The documents arrived without note or comment.

Everything I received in the order I received it, minus one document, is here. There are bookmarks in the PDF file, so that if the file is opened with Acrobat, a list of the included documents appears.

The one document I have left out is the July 16, 2004, report of the National Center for State Courts: Blakely v. Washington, Implications for State Court Courts, which is available from the NCSC site here. This report was appended to the other documents. The specific comment in the report about Indiana is the following:
Indiana is apparently not affected by Blakely, according to a spokesperson for the state’s attorney general. However, many lawyers believe that Blakely does in fact affect the state, because the non-capital sentencing system is based on presumptive sentences that can be increased only by judicial finding of fact that an aggravator is present.
The report appears to have been amended since publication in July. The original version only contained the first sentence with the comment of the AG's "spokesperson." For those interested in such reports, the Vera Insitute has two excellent publications from August and September here and here. (The September report from Vera is really a must-read for the Blakely-addicted.)

In the materials is a wonderful collection of forms, substantive notes, and "Questions to Ponder." Indeed. I'll be pulling out specific documents for comment in the next days. (At last! The long-hunted Marion County Waiver form!) There is quite a lot to digest.

Some Big "IF's"

IF the materials are those from the Judicial Conference, and IF the Indiana Supreme Court, either through the Judicial Center, State Court Administration, or any other conduit, had anything to do with the substantive content of the materials, there hangs a question: Should the entire court recuse itself from consideration of Smylie and Heath, because each justice has now effectively expressed an opinion extrajudicially on the issues to be decided in those cases?

This question is especially important for Smylie, which is going to present the question of Blakely's application to consecutive sentences. The materials unambiguously say that Blakely does not apply to consecutive sentences as long as each sentence is the presumptive or less.

And what about the cases to come that will have been treated as the materials recommend? Can the Supreme Court impartially judge any resulting appeal when a trial court has merely done what an administrative arm of the Supreme Court's has told it to?

What does this arrangement, IF it is as I suspect, do to the development of the law in Indiana? One of the truly marvelous things about about the last several months has been the sheer variety, scholarship, thoughtfulness, ingenuity and even humor of the opinions issued by lower courts forced to rethink the world on their own. Those opinions are not just wonderful as spectacle. When the Supreme Court decides Booker and Fanfan, it will have the benefit of those opinions' insights.

Although the trial courts in this state do not issue published opinions or orders, surely helpful hints from above discourage independent thought and inventive, possibly correct, solutions to the many, many, serious challenges Blakely poses for criminal procedure in Indiana. (Of course the challenges aren't so serious, if the Supreme Court has already decided, without a case or argument before them, even the general contours of the post-Blakely regime in Indiana.)

To go back to the feds for a moment: the Second Circuit, literally dumbfounded by Blakely, took the very unusual step of certifying a series of Blakely questions to the Supreme Court. I don't think it ever occurred to any of the judges that they could get some helpful hints, i.e., a preview of Booker and Fanfan, from SCOTUS via a timely judicial coming-together. And the circuit courts of appeal have been issuing actual opinions in actual cases with guidance / mandates about how their respective district courts are to handle sentencing after Blakely.

Why should it be different here?

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