Wednesday, October 22, 2008

Oregon v. Ice (More): SCOTUSBlog's Take

After the oral argument in Oregon v. Ice, the case about whether Blakely is going to apply to consecutive sentences, SCOTUSBlog provided this summary of the argument.

Here is the intriguing paragraph for the fair folk of Indiana:
While the Court leaned noticeably toward the jury option, one potential question went unanswered in the argument Tuesday: would the jury have to have that role as a general constitutional proposition, or have it only in states that had laws requiring that multiple sentences for two or more crimes normally be served concurrently unless some added fact supported consecutive sentencing? Perhaps as many as 13 states have such laws, so if their existence was necessary for the jury to have the fact-finding task to make sentences consecutive, that would give such an expansion of Apprendi less impact. Oregon has that kind of law, but Justice Antonin Scalia suggested that it was “unusual.”
Nobody's ever claimed Indiana isn't "unusual." It's especially unusual in this context, because there is no statute requiring the finding of additional facts to impose consecutive sentences. That requirement came from the Indiana Supreme Court in the early 80's.

When is the Supreme Court going to take care of the other really big Blakely boot that has not yet dropped--retroactivity?

Related Links:
  1. Prior post about Ice
  2. Transcript of argument

New Blog on the Block: The Indiana Criminal Law Blog

Lorinda Youngcourt has started up a new blog dealing with Indiana criminal law: The Indiana Criminal Law Blog. It looks like it will contain case blurbs put together monthly by the Indiana Public Defender Council. Maybe it will have other goodies too.

Have a look. I'm sticking it into my feed reader and the blog roll.

Here's the link to the RSS feed.

Tuesday, October 14, 2008

Blakely & Consecutive Sentences: Oregon v. Ice

Oregon v. Ice was argued in the U.S. Supreme Court today. Does Blakely apply to consecutive sentences if the finding of additional facts are required to impose sentences consecutively?

The transcript of the argument is here (PDF). Doug Berman's take on the case is here. (Sentencing Law & Policy). Kent Scheidegger's take is on the argument is here. (crime & consequences).

I have not read the transcript yet. I am also agnostic on the subject.

Indiana still requires the finding of additional facts to impose consecutive sentences, even after the 2005 statutory amendments that did in Blakely's Indiana sojourn.

Smylie, of course, said that Blakely does not apply to consecutive sentences. So if Ice wins, what happens here? Probably almost nothing. That the Indiana Supreme Court will have gotten it wrong won't make much difference to almost all the Blakely claimants. Their cases are final. And as I am thinking about it now, I'm not sure how a Blakely claim regarding consecutive sentences can be revived either by post-conviction proceeding or by fed habeas. I'll have to think about that for a while more, though.

Of course, the game would change considerably if the Supremes got around to saying that Blakely was fully retroactive. In Indiana at least, it should be. Blakely raised the standard of proof for aggravating circumstances from practically nothing to beyond a reasonable doubt. That is, from my particular corn field, Blakely looks a lot like In re Winship for sentencing facts. That should get retroactivity for Blakely by even Indiana's version of Teague.

Sunday, October 05, 2008

The Sunday (SPAM) Pickle

Anyone else get one of these?  I think it's hilarious.

Robert J. Garrity, Jr Deputy Assistant Director,
Records Management Division FBI

Before the House of Represenatatives, Subcommittee on International Terrorism, Nonproliferation and Human Rights Los Angeles, California

Attn: Honourable Beneficiary.

We the Federal Bureau Of Investigation (FBI Honolulu) United States Of America have discovered through our intelligent monitoring network that you have a transaction going on as either inheritance payment,job offer,Lottery or contract payment in a tone of Millions of United States Dollars which have been approved but have not been settled.

This is to officially inform you that we have verified your contract / inheritance file after close monitoring and found out why you have not received your payment,both on your part and on the part of your debtors. Secondly we have been informed that you are still dealing with the non officials in the bank who are attempting to secure the release of your fund to you.

We wish to advise you that this is illegal and you should stop further communication with them forthwith because such an illegal act like this can lead to cancellation of your fund.

We have been having so many complains from people who have been scammed around the world hence,after concluding in a meeting with members of the International Monetary Fund (IMF),United Nations(UN) and all the presidents in africa and UK concerning these, we came to a conclusion that every payment will be made through the Citi finance Int'l Corporation,New York. We also concluded on the use of Swift cable Wire Transfer as the only direct means to pay all beneficiaries.

This is to inform you that we have just pass a NOTIFICATION to the United Nations to pay you an accumulated deposited funds of US$8,300,000.00.

By this method, from the financial houses there is no limit.So if you would like to receive your funds in this way please send your following information to the paying bank via the United Nations Representative.
1. Full Name
2. Full Address (P.O box not acceptable)
3. Phone and fax #
4. Your age, sex and current occupation .

We immediately instruct you to contact Dr JOhn Phillips with the email contact below.Below are the contact details of the United Nations Representative in the United Kingdom to whom you will send your information for the processing of the fund as soon as possible:

CONTACT: Dr.John Phillips
United Nations Association of the UK
3 Whitehall Court,
London SW1A 2EL.

The DEBT SETTLEMENT COMMISSION has been mandated to issue out your payments for this fiscal year 2008. Also for your information, you have to stop any further communication with any other person(s) or office(s) who claim that to be established agents using it to defraud innocent people worldwide.This is to avoid any hitches in receiving your payment.



MR .ROBERT S. Garrity, III
Los Angeles , California