All Roads Lead to Blakely?

There were, almost mercifully, no Blakely related cases from the Indiana Courts today. The Seventh Circuit did affirm the denial of habeas relief for Marvin Bieghler (here), who was sentenced to death, and whom most of the appellate lawyers in Indiana know from the Indiana Supreme Court’s decision affirming the denial of post-conviction relief. State v. Bieghler, 690 N.E.2d 188 (Ind. 1997). The appellate lawyers know the case because that is where, following a law review article, the Supreme Court divided up appellate ineffective assistance claims into three types: IAC for blowing an appeal altogether; IAC for waiver of an issue; and IAC for raising an issue badly. In Indiana appellate jargon, they’ve become known as Bieghler I, II, or III claims. Justice Rucker wrote an opinion relatively recently on the subject of Bieghler claims in Saylor v. State, 765 N.E.2d 535 (Ind. 2002), reh’g granted on other grounds, 808 N.E.2d 646 (Ind. 2004). (For some reason, the hyperlink to the original opinion in the Supreme Court permanent web archive produces an empty document. Sorry. Not my fault.)

But all roads seem to lead to Blakely. What happened in and with Saylor may provide some insight into the current situation in Indiana. The original opinion in Saylor was issued on March 20, 2002. Saylor raised an Apprendi challenge to Indiana’s death penalty statute. The Indiana Supreme Court was having none of it, relying on Walton v. Arizona:

In Walton v. Arizona, 497 U.S. 639 (1990), the United States Supreme Court addressed a sentencing scheme similar to Indiana's. In Arizona, after a jury finds a defendant guilty of first-degree murder, the trial court alone conducts a sentencing hearing to determine whether the sentence should be death or life imprisonment. Id. at 643. During the course of the hearing, the court determines the existence of any statutory aggravating or mitigating circumstances. Id. The court can impose a sentence of death only if it finds that one aggravating circumstance exists and that there are no mitigating circumstances sufficiently substantial to merit leniency. Id. at 644. Finding this capital sentencing scheme constitutional, the United States Supreme Court explained that it is well settled that the existence of an aggravating circumstance that renders a defendant eligible for the death penalty may be determined by a judge rather than a jury. Id. at 647-48. In Apprendi, the United States Supreme Court was careful not to overrule Walton. The Court explained:

Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647-49 (1990).

Apprendi, 530 U.S. at 496-97.

Criticizing the majority opinion, four justices in dissent insisted that Apprendi effectively overruled Walton, id. at 538; and one justice, in a separate concurring opinion, declared that Walton could be re-examined "another day," id. at 523. In any event, although Apprendi may raise doubt about the continued validity of Walton, until it is expressly overruled, Walton is still good law. n22

Footnote 22 listed cases that had treated Apprendi’s application to death penalty statutes in the same way. Included in the list was Ring v. Arizona, the Arizona Supreme Court’s decision, together with the notation that cert had been granted.

So the court knew that a decision from the United States Supreme Court in Ring was on the way within months. Not only that, the court knew that there were five justices inclined to overrule Walton. Nevertheless, the court ploughed ahead and, sure enough, Ring overruled Walton on June 24^, 2002, after Saylor’s petition for rehearing had been filed and was still pending.

The result of the Indiana Supreme Court’s (over)eagerness was supplemental briefing on rehearing, more oral argument, and an opinion issued May 21^st of this year, more than two years after the first opinion, reversing Saylor’s death sentence on grounds superficially, at least, unrelated to Ring. I say “superficially,” because one possible interpretation is that a majority of the court decided to jump Ring, as it were, in order to be able to decide the case as it did, perfectly reasonably, in a pre-Ring world. The court would have only had to wait about three months in a death penalty case to get a decision in Ring. In the end, it waited more than two years to reverse the death sentence on rehearing on unrelated state law grounds rather than address Ring, Apprendi, and either case’s retroactivity under state law.

One sort of gets the idea that a majority of the court wanted to talk about Apprendi and, later, Ring as little as possible. Which brings me back, yet again, to Ritchie and Barker from this year. Yet again, the court avoided addressing Ring’s application to Indiana’s new death penalty statute with an eighth amendment dodge that is so (brilliantly?) murky that it would probably be hard to frame a cert petition around the decision. (That’s not entirely true, since the Ring avoidance, itself, would be easy to state in plain terms.)

So will the court wait until opinions are issued within weeks in Booker and Fanfan before deciding Heath and Smylie? Maybe. But maybe the pre-Booker/Fanfan world offers more opportunities for avoidance. That is harder to guess than what the result in Ring was likely to be. Recall that much of what caused the Federal Guidelines to fall in the Seventh and Ninth Circuits as a result of Blakely was from reading between the lines and even the dissents, especially Justice O’Connor’s. There’s no telling what two cases, nominally treating only the Federal Guidelines, might imply about state sentencing.

A final note: Tomorrow at the IU law school in Bloomington, there is going to be an event commemorating the U.S. Supreme Court decision in Hess v. Indiana, 414 U.S. 105 (1973) (per curiam). A number of the key participants is going to be there, including Gregg Hess, the petitioner who shouted, “We'll take the fucking street later (or again)” during an anti-war demonstration in Bloomington, and who was later convicted for Disorderly Conduct. I have known about the case for some years, of course, but I never knew, until I saw his picture this morning in the paper, that the guy was Gregg Hess, my travel agent for eons.

While doing research for a matter some weeks ago completely unrelated to anything BlakelyHess was the last time the Indiana Supreme Court was reversed in a criminal case by the Supremes in an opinion. (is there such a matter in criminal law?), it appeared to me that (I cannot speak for summary remands that may have occurred over the years.) And the last time the Indiana Supreme Court was reversed by the Supremes in any kind of case, excluding summary remands, was Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989).

Two things appear from this First, when the Indiana Supreme Court runs into trouble with the Supremes, it is almost always where criminal law and the First Amendment collide. (Fort Wayne Books involved state civil RICO actions following obscenity-related convictions.) But second, and more importantly, the court almost never runs into trouble.

Now that may be, recently at least, because the lower federal courts have been nipping death penalty cases in the bud with habeas relief at a rate that might be called alarming from any number of perspectives. But over the 30 years since Hess, maybe the Indiana Supreme Court has avoided trouble not by correctness, but by craft.