Monday, June 26, 2006

More on Johnson in Colorado & Blakely Retroactivity

As I mentioned in this post, on June 14th the Colorado Supreme Court held oral argument in Johnson, the case in which the Colorado Court of Appeals held that Blakely shall be applied retroactively to Apprendi in Colorado.

The argument is up--it took a couple of days--and can be heard via this link with Windows Media Player--or anything else that plays WMA files. It lasts half an hour. It provides a (distinctly minor league) preview of Burton, the Blakely retroactivity case the Supreme Court has decided to hear.

The thing I found most interesting about the argument was the State's and a justice or two's heavy reliance on holdings that Crawford is not retroactive. Given that SCOTUS has taken a Crawford retroactivity case, that seemed a risky strategy.

It will be interesting to see if the Colorado Supreme Court waits until after Burton to decide Johnson. And if they don't, what happens with Johnson will be worth watching because, as discussed in this post, I don't believe that state courts are bound in their retroactivity analysis by SCOTUS decisions. And this is true even if, as Colorado and Indiana, state retroactivity analysis mirrors Teague and its progeny in almost all relevant detail.

The Johnson argument might make a nice, brief distraction before the opinions begin to rain down this week from all quarters as many courts end their terms. I'm putting out my rain barrels.

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