Tuesday, September 27, 2005

Smylie: The AG has responded after all.

I have word that the Indiana Attorney General has, in fact, filed the requested response to Smylie's cert. petition. I hope to have it available here tomorrow. Apparently it is 10 pages, much of which is spent on procedural issues--waiver and mootness, in particular--which ought to be non-issues, since the Indiana Supreme Court didn't seem to care about them. (A mootness argument, because Smylie has already served his sentence, seems especially silly to me in light of the recurring problem exception to mootness taken together with the broader importance of Blakely's application vel non to discretionary consecutive sentencing.)

Also, I have consulted someone who has done a great deal of Supreme Court litigation. She says that the folks in Washington don't ask for responses except when it is very likely that cert. will be granted. I guess we'll see soon enough--and it certainly will be interesting if it is. For the reasons set out in the previous post, I can hardly imagine it. But I could not have imagined Gomez or Black or any of a number of decision either, so I am willing to confess to frequent failures of imagination.

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