Tuesday, March 15, 2005

NJ Arguments: Some notes

The State began its argument (as the appellant) in Natale with a very interesting distinction between New Jersey and Indiana sentencing law, although the DAG did not mention that she was distinguishing Indiana until much, much later. In Indiana, if a judge imposes a presumptive sentence, he or she need not give any reasons. In New Jersey, a judge must give reasons for any sentence, including the presumptive. I thought this gave a great deal more plausibility, at first blush, at least, to the State's claim that Blakely does not apply to New Jersey's sentencing scheme. (Recall that Chief Justice Shepard characterized the State's defense of Indiana's sentencing scheme in Smylie as "plausible" That defense did not get a single vote, even from Justice Dickson, whose dissent was directed entirely at the remedy and not Blakely's applicability.)

The State went on, though, to suggest the test to apply to see if Blakely is applicable is whether the finding of an aggravating circumstance requires a greater sentence. The Chief Justice properly, I think, hopped on this by saying that a judge may not go above the presumptive without finding aggravating circumstances--which Justice Rivera-Soto characterized as the "quintessential elephant in the roorm."

Justice Albin, I think it was, got right to what I refer to as the Dilts test. He asked the State if there had been an enhanced sentence in a second degree felony case that had been affirmed without the finding of some aggravating circumstance. The State could not come up with such a case.

A bit later, Justice Albin also used Booker to ask the State how New Jersey's presumptive sentence is different from the federal base offense level. At least in my notes, the State moved hastily on to its preferred remedy, which was frankly, plainly, and openly, to Booker-ize New Jersey's statutes.

Justice Albin said that the court had to decide how the legislature would want to fix this and then simply proposed the judicial creation of a system where judges would begin at the maximum for each degree of crime, 10 years for a second degree felony, and then work down.

Although Justice Zazzali mentioned that uniformity had probably been more important to the legislature than judicial discretion in adopting New Jersey's current sentencing scheme, no judge seemed to push imposing a jury requirement.

Natale's lawyer pushed back a bit on the effect of Booker-izing the statutes, adopting the position of Scalia's dissent in Booker that "reasonableness," if it is just going to be a proxy for the presumptive without aggravating circumstances, leaves the situation unchanged.

He also made the point that he did not think Natale could be sent before a sentencing jury, because Blakely aggravators are the functional equivalent of elements.

On the question of the jury remedy, Justice Albin asked when would a bifurcated trial be unnecessary. New Jersey has a sentencing factor, "the need to deter," that would probably have to be tried in every case, he suggested. I recalled Chief Justice Shepard's astute comment in the Smylie and Heath arguments that there's nothing in Blakely or Apprendi that requires bifurcated trials. This is the double-edged sword of the aggravators-as-elements argument; and I was a little surprised to see it pass as a foregone conclusion that bifurcated trials would be necessary.

Steve Sanders, who has been feeding Doug Berman and me with all the background and documents in theses cases, raised the third option, after Booker-ization and the invention of sentencing juries, namely limiting sentences to the presumptive until the legislature fixes things. He said that this option had not gotten much play in the lower appellate decision. The Chief Justice asked him if he was surprised, which question produced the only laughter of the morning.

I think Steve made the important point that what the court does now is merely an interim solution until the New Jersey Legislature gets busy. Justice Albin proposed again creating a system in which sentences begin at the top and judges then work down, balancing aggravating and mitigating circumstances. Steve conceded that, as a theoretical matter, sentences should end up in the same place as under the current system. I'm not sure that is so. If there are not aggravating circumstances and no mitigating circumstances, what would cause a judge to move down to the current presumptive sentence? Maybe I misunderstand the way New Jersey sentencing works.

In any event, whether it is to read "shall" as "may" or to start at the top of the sentencing ranges, it was clear to me that after Booker, this court thinks it can pretty much do what it will to avoid the unconsitutional applications of its sentencing statutes, which are not unconstitutional on their face.

Abdullah raised the question of whether New Jersey's parole disqualification provisions are or are not like the mandatory minimums in Harris and McMillan. It also raised Blakely's applicability to consecutive sentences. No justice seemed to pursue the possibility, even.

The court did give Abdullah's lawyer a very hard time over the absence of a presumptive in the murder statute. It appears to be a unique sentencing provision, sharing the lack of a presumptive sentence with only the car-jacking statute. And one of the justices suggested that the Appellate Division had read a presumptive sentence into the car-jacking statute, because its absence there had been a scrivener's error. Not so, apparently, with the murder statute.

I thought it was just about the end of that particular matter when one of the justices suggested that the murder statute was just like the hypothetical 10-40 year burglary statute mentioned by Scalia in Blakely. Hard to disagree.

There was an extended argument in Abdullah about the statutory aggravating factor of "the extent and seriousness" of criminal history. If this is not the same as "the fact of a prior conviction," one justice asked, what would jury instructions on these issues look like? Good question. There was a pretty good answer too: we instruct juries on elements of crimes and on how to put people to death, so we ought to be able to come up with instructions to cover this. (Going back to Natale, it seemed to me that if a jury would have to consider "the need to deter" in almost every case as suggested by Justice Albin, an assessment of the extent and seriousness of criminal history would almost necessarily be part of that undertaking.)

In a way, Franklin was the most interesting case of the day for me. Whichever of several ways the court could go in it, it would make a great case to test the limits of the Blakely Five's formalism. Franklin was convicted of "passion provocation manslaughter." He shot a woman three times. There were five, I believe, firearms charges, and the jury acquitted Franklin for all five. Then there is the Graves Act, which adds years for the "use or possession" of a firearm while committing, among other things, passion provocation manslaughter.

At trial, Franklin testified and did not, apparently, recall if he had used a gun, but he guessed he had.

So Justice Albin hammered at the question of whether Blakley permits the use of trial testimony as an "admission." And the interesting question arose as to whether a trial admission should be considered as reliable as an admission during a plea colloquy. Someone made the fine point that Justice Souter in Shepard, specifically speaks of the danger of having to get into trial transcripts.

A couple of other justices hammered at the Graves Act not requiring a mens rea, but just use of a gun--so any error has to be harmless, because everybod knows Franklin used a gun. This gets Blakely up close and personal to Shepard: what does it mean to know these things, and what ways does the Constitution permit us to know them. In both Abdullah and Franklin, actually, Shepard, though not precisely applicable, kept popping up on important issues.

So, what to do with the acquittals and the fact that nothing in the manslaughter verdict necessarily finds the use of a gun? The State tried to argue--and I think some members of the court were sympathetic to the argument--that the use of a gun was "implicit in the verdict." Well, only if read together with a bunch of other things. And then there are those pesky acquittals. So the "realists," as opposed to the "formalists" want to say Franklin used a gun without possessing it?

This could be a great case for the U.S. Supreme Court to teach us, at a minimum, about Blakely admissions and what may be said to be "implicit" in a verdict. It's Shepard dressed up in its Blakely best.

Doug Berman found the archive site here. (I guess I did not look hard enough.) Unlike the arguments on the Indiana site, which reside in the ether indefinitely, it appears the New Jersey arguments are taken down after about a month.

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