Since Holden, Stott, and McGinity each stand for a different method of assessing Blakely error, I thought I'd make the mistake of seeing who voted for what when. And it was something of a mistake.
It turns out that Judge Vaidik, who wrote today's McGinity opinion with its intermediate method of assessment, voted for Holden's Chapman harmless error analysis back in October.
It turns out that Judge Najam, who voted for McGinity's intermediate method today, voted for Stott's minimalist method of affirming upon the presence of a single valid aggravating circumstance back on January 5th.
Judge Najam also wrote Patrick back on December 23rd, in which transfer has been granted, and which states about four different methods of assessment. In the end, it looks like the method applied by Patrick is that of McGinity, if one is to judge by the sentence, "[W]e cannot say with confidence that the remaining permissible aggravators would have led to the same result," in conjunction with the reversal.
So Judge Najam has been on both sides of McGinity and Stott and then back again.
If someone believes I am incorrect or picking nits that are too fine in saying that these three cases stand for very different approaches to Blakely error, I certainly invite comments. Similarly, I invite comments if someone believes that the differences in the approaches don't make a difference. What an appellate judge does with an error once found, it seems to me, is even more of the essence of appellate judging than finding the error in the first instance. And the outcome of any given case may well depend on which of the the three methods a Court of Appeals panel chooses to employ.
For the moment, it would appear that any judge may choose any method in any case at will.
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