INCourts

Ice is Here--and Chills the Spirit

2009-01-14T21:03:00.005-05:00

Oregon v. Ice was decided today. (Here at Cornell). 5-4 with a wacky split to say that juries do not need to find facts necessary to impose consecutive sentences. Roberts, Scalia, Souter, and Thomas were the four.

I haven't read the opinions. The result is certainly disappointing, especially when you consider how close--and weird--the vote was. I thought Ginsburg and Stevens were true Blakely believers. (We know after Booker that Justice Breyer is a traitor to the cause.) And maybe they are and just don't think the principle applies to consecutive sentences.

Although I don't blog about my own cases, I will say that I am going to have to abandon some pending post-conviction claims based on Blakely and consecutive sentences.

This leaves two Blakely shoes to drop--well, a boot and a slipper. The boot is retroactivity--full, to the beginning of time, or merely to Apprendi. ("As our precedents make clear . . ." Justice Scalia wrote in Blakely.)

The slipper is whether juvenile adjudications without jury trials are "prior convictions." Most courts seems to have said, "Yes." I do not think that can possibly be correct and that the majority of courts that take the position are dodging Blakely similarly to the way they dodged Apprendi for years--except Kansas.

More about Ice after I actually read the opinions.

Quote of the Day: On Mediocrity & the Supreme Court

2008-11-11T11:06:00.003-05:00

There are a lot of mediocre people in this country, and mediocrity should be represented on the Supreme Court.
-Senator Roman Hruska (R-Nebraska), in defense of Nixon's nomination of G. Harold Carswell

From Indiana Political Heroes by Geoff Paddock

Happy Halloween

2008-10-31T20:12:00.004-04:00

From Zombie Cat

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

2008-10-22T09:58:00.004-04:00

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:

New Blog on the Block: The Indiana Criminal Law Blog

2008-10-22T09:37:00.002-04:00

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.

Blakely & Consecutive Sentences: Oregon v. Ice

2008-10-14T21:41:00.007-04:00

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.

The Sunday (SPAM) Pickle

2008-10-05T23:02:00.004-04:00

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

FEDERAL BUREAU OF INVESTIGATION
ROOM 4-230, KALANIANAOLE FOB
300 ALA MOANA BOULEVARD HONOLULU , HAWAII 96850-0053
http://www.fbi.gov
Email:garrity.robertg.robert994@gmail.com
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
HEAD OF COMMUNICATION
DEBT SETTLEMENT COMMISSION
United Nations Association of the UK
3 Whitehall Court,
London SW1A 2EL.
EMAIL:jpjphillips27@gmail.com

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.

THANKS FOR LISTENING TO OUR ADVISE

Faithfully,

MR .ROBERT S. Garrity, III
FOR CORPORATE AFFAIRS
FEDERAL BUREAU OF INVESTIGATION (FBI Honolulu))
Los Angeles , California
UNITED STATES OF AMERICA

What I Learned Today: Strangulation as a Class D Felony

2008-09-11T12:13:00.003-04:00

I had no idea that there was a special crime of "Strangulation." But here it is--Indiana Code § 35-42-2-9(b):

A person who, in a rude, angry, or insolent manner, knowingly or intentionally:
(1) applies pressure to the throat or neck of another person; or
(2) obstructs the nose or mouth of the another person;
in a manner that impedes the normal breathing or the blood circulation of the other person commits strangulation, a Class D felony.

Subsection (a) exempts "medical procedures." So a doctor can strangle you in a rude, angry, or insolent manner as part of a medical procedure?

From Autuan M. Leanyear v. State, Court of Appeals No. 02A03-0806-CR-268 (Ind. Ct. App. 8/27/08) (NFP). (If you read the case, there might have been a pretty good claim that there was no evidence that the "strangulation" was rude, angry, or insolent.)

Why There Are Lawyers: "Custody" vs. "Confinement"

2008-09-04T17:40:00.002-04:00

More language fun, this time from the 7th Circuit.

It is fundamental that to be eligible for habeas relief, one must be "in custody." After all, a habeas petition is a request that one's jailer produce one's body (the corpus part) before the court (instead of the king now) and justify the detention. It is also fundamental that "custody" includes parole or probation.

For the purposes of Federal Rule of Evidence 609(b) and the 10-year limit (absent extreme justification) on the use of prior convictions to impeach, however, it works a little differently. The 10-year limit runs from "the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date . . . ."

The 7th says (in a circuit first-impression case) that once released on probation, one has been released from confinement for Rule 609(b) purposes. But while on probation, for habeas purposes, as I said above one is still "in custody."

I guess it's the difference between Tyson's chickens and the free-range variety.

United States v. Rogers, Case No. 06-6730 (7th Cir. 9/4/08)

Comment Bait: "Advertising Material" vs. "Legal Advertisement"

2008-09-04T17:08:00.003-04:00

Indiana Lawyers have to include the words "Advertising Material" in their ads. So a couple of lawyers screwed up and put "Legal Advertisement" in their ad instead of the magic words. And they sent a copy of the ad to the Disciplinary Commission to boot, as they were required to do. The lawyers even corrected the mistake four years ago.

The Indiana Supreme Court dings the lawyers in this case with a public reprimand for this in part, saying that "[u]se of the phrase Legal Advertisement' may create the impression that the Commission or some other body had reviewed it and found it to be 'legal.'"

Maybe under an ad for a chiropractor. The only possible double meaning I perceive under an ad for a lawyer would be that the ad is legally permitted. Some people might think lawyers are not permitted to advertise, since once upon a time, in many jurisdictions at least, they weren't. (Ahh, those were the days, right?)

It seems to me that only the Indiana Supreme Court and the lawyers in the Disciplinary Commision itself could think that "Legal Advertisement" might refer to the Commission or some such entity.

Anyone with a different take?

Quote of the Day: About Suicide Clauses in Insurance Contracts

2008-09-03T15:22:00.004-04:00

"[A]n insured is not 'performing' a life insurance contract by not committing suicide." Dean Officer v. Chase Ins., Case No. 07-2826 (7th Cir. 9/3/08) (Judge Tinder), slip op. at 12.

More about Woods : a Correction

2008-08-29T10:35:00.004-04:00

I was incorrect the day before yesterday in this post about Woods, the decision from the Indiana Supreme Court of a couple of days ago. Someone more knowledgeable has pointed out to me that post-conviction relief is available after probation revocation proceedings. Ind. Post-Conviction Rule § 1, 1(a)(5).

The same more knowledgeable person also had a peek into the Marion County online docket: Woods was represented by counsel at the revocation hearing.

Forgery: Strict Liability for Presenting a Forged Check? (WILTD)

2008-08-29T10:10:00.004-04:00

What I learned today:

Someone steals a blank check.
Sometime later, someone buys a couch from me (I say) using the stolen, now-forged check.
Three months after the check was stolen, I open a bank account using the forged check.
That I present the forged check for payment, without more, is enough to support a conviction for forgery.

Gina Williams v. State, Court of Appeals No. 49A02-0801-CR-44 (Ind. Ct. App. 8/27/08).

News to me. And Judge Najam's opinion cites a number of cases older than dirt for the proposition. Slip op. at 9-10. Maybe in this case, it was just that the stolen check was number 1050 and made out for $1050. (Jeesh.)

Maybe I need to create a new Dickensian category of post: "The Law is an Ass." And in this case, it seems to have been so for a long time.

ISC Oral Argument Tomorrow: John W. Miller v. State

2008-08-27T21:11:00.005-04:00

9:45 A.M, tomorrow, Thursday, August 28th. The live link (RealPlayer) will be up a few minutes earlier.

This is a shackling case involving a voluntary manslaughter conviction. John Pinnow is arguing it for Miller. John is great.

Joby Jerrels is the DAG on the case. I haven't seen any of his arguments.

Here's the court's blurb on the case:

The LaPorte Circuit Court ordered that Miller be placed in restraints during his trial and the Court of Appeals affirmed in an unpublished memorandum decision, Miller v. State, No. 46A04-0612-CR-696 (Ind. Ct. App. Apr. 15, 2008). Miller has petitioned the Supreme Court to accept jurisdiction over the appeal.

I would be willing to bet that the recent 7th Circuit opinion in Wrinkles v. Buss, No. 05-2747 (7th Cir. 8/12/08) plays a part in the argument. Wrinkles is a death case out of Indiana. Three to two, the 7th affirmed the denial of habeas relief on a shackling claim. Judge Rovner's dissent is compelling. And, in any event, the Indiana Supreme Court's shackling opinion from 2001 only just escaped, thanks to some fancy footwork by Judge Kanne that I find merely a tortured reading of Justice Rucker's opinion.

Brian Woods v. State (Ind. 8/27/08): Offer to Prove after the Judge Says No?

2008-08-27T20:38:00.007-04:00

Woods v. State, Supreme Court No. 49S04-0808-CR-469 (Ind. 8/27/08) is an odd little case. It is odd, if only because the Indiana Supreme Court took it up at all. It did not even rate oral argument.

Here's about what happened:

Woods is on probation.
Any violation will lead to 15 years of backup time.
The State files a notice saying he missed some urine screens.
Woods asks the trial court if he can explain.
The trial court says no, because any violation leads to the backup time.
The Indiana Supreme Court says that it's over, because Woods did not make an offer to prove.

This may be unobjectionable, if Woods was represented at the probation revocation hearing. Nothing in either the Supreme Court case or the original Court of Appeals opinion says that he was. It seems to me unreasonable to expect someone unrepresented to continue after a judge has said he may not explain--that is, that he may not produce evidence that he violated the terms of the probation.
[Update (8/29/08): Woods was represented. See this post.]

If Woods had good reasons for missing the urine screens, this is particularly ugly, because post-conviction relief is not available with respect to probation revocation proceedings. [Update (8/29/08): This is incorrect. See this post with the correction.]

I guess the Supreme Court took it up, because the Court of Appeals opinion was published and said some unnecessary things about "strict compliance" probation terms.

From a litigant's perspective, this is ugly too. Woods's petition to transfer was filed at the end of December 2007. By now, both Woods and his lawyer would have been reading tea leaves. None of the leaves would have suggested a grant of transfer with an affirmance--especially when the State did not file a transfer brief in opposition. Had I been Woods's lawyer today, I would have been shocked and dismayed, after being thrilled, to see the opinion appear out of nowhere with an affirmance.

But that's the way this business of criminal defense is. A court reporter in the Autonomous Republic of Lake (County) once referred to it as "grave-digger's work."

Habeas in Indiana: Not What You Might Think

2008-05-30T09:53:00.008-04:00

There's an article on SSRN by Professors Nancy King and Susan Sherry at Vanderilt about how habeas has been derailed from challenges to state court judgments to challenges of administrative prison decisions: Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences. (Thanks to Doug Berman at Sentencing Law & Policy.)

According to the article, 61% of Indiana habeas cases in 2003-04 "contested sentence-administration decisions, not criminal judgments. . . . Thus in Indiana, the primary function of federal habeas review is to examine the decisions of state corrections officials, not state courts . . . ." (P. 11). It is not crystal clear, but it would seem that this is 61% of non-capital cases.

Here's the beef: in one national study of habeas cases filed in 2003-04, "only about one third of 1% of non-capital habeas petitions filed (7 cases total) received any relief and none of the claims granted relief were sentence administration claims." (P. 12).

Because there is no judicial review of decisions by the Department of Correction in Indiana, one would have thought that sentencing administration claims, not subject to the AEDPA, might be more successful. Apparently not.

I have an active interest--meaning a client--with a real problem in this area. He was found guilty but mentally ill some time ago. In Indiana, "GBMI" gets you nothing: you're sentenced just like everyone else. A GBMI verdict is supposed to be a big mitigating circumstance. At least in my client's case, he was given the maximum sentence nonetheless.

There is an unnoticed problem with sentencing the mentally ill like everyone else: they are unlikely to be able to behave themselves in prison. As a result of the misbehavior, they lose their credit time, which is one day for each day actually served in most cases. So a mentally ill inmate is likely to serve twice as much time as a normal inmate.

I am working on a few ideas about how to do something about this. The key seems to me to be that there has to be an equal protection claim against a system in which a judge sentences against a known background employing credit time and, at the same time, is supposed to sentence the mentally ill without regard to the known background.

If anyone has other ideas, please comment.

The Sunday Pickle

2008-05-11T19:16:00.005-04:00

Words That Make My Stomach Plummet
by Mira McEwan
from Ecstatic. Allbook Books, 2007

Committee Meeting. Burden of Proof.
The Simple Truth. Trying To Be Nice.
Honestly. I Could Have Died. I Almost Cried.
It’s Only a Cold Sore.
It’s My Night. Trust Me. Dead Serious.
I Have Everything All Under Control.
I’m Famous For My Honesty.
I’m Simply Beside Myself. We’re On The Same Page.
Let’s Not Reinvent The Wheel.
For The Time Being. There Is That.
I’m Not Just Saying That.
I Just Couldn’t Help Myself. I Mean It.

Coming Post: The Indiana Blakely Lottery Continues: Steven Kendall v. State, Court of Appeals No. 49A05-0707-PC-391 (Ind. Ct. App. May 9, 2008).

The Sunday Pickle

2008-04-06T16:10:00.008-04:00

The Wheel

Through winter-time we call on spring,

And through the spring on summer call,

And when abounding hedges ring

Declare that winter's best of all;

And after that there's nothing good

Because the spring-time has not come ---

Nor know that what disturbs our blood

Is but our longing for the tomb.

- W.B. Yeats

Two Terrific Posts from Indiana Blogs

2008-04-04T14:34:00.004-04:00

Thomas Kemp at Kemplog has this great post titled "Public Records, Private Profits." Can you believe the U.S. Supreme Court turned down free access to its own historic records? Go read all about it.

And Doug Masson at Masson's Blog has this terrific post titled "I Remember." It's about the anniversary of Martin Luther King, Jr.'s assassination. The account of Bobby Kennedy calming a crowd in Indianapolis two months before his own assassination I find chilling.

WAMU in Washington has a great show going on the assassination right now from Memphis moderated by Tavis Smiley. (Link to permanent archive on PRI.)

Sealed Cases & Oral Argument

2008-04-04T13:41:00.003-04:00

Marcia Oddi at the Indiana Law Blog has been posting about the cases that the Clerk has sealed and that have also disappeared from the docket. (Here, here, and here, for example.) One of my cases has suffered this fate.

I have been listening to oral arguments--especially those in the Indiana appellate courts. Back on March 25th, the Court of Appeals held argument in Allianz Insurance Company v. Guidant Corporation. (Direct link to argument; RealPlayer required).

It is very difficult to figure out what this case is all about. But the argument begins over whether the briefs were properly sealed and what information is so sensitive that it cannot be public. Chief Judge Baker seems pretty skeptical confronted with briefs, the only public portion of which seems to be the table of contents and proof of service.

It sounds like the parties agreed to keep it all hush-hush, because if the world knew how much other litigation there is involving the parties--and this information is in the briefs, presumably--then the businesses would suffer.

I had a case that I requested sealed once upon a time. But that was because of some allegations about someone not a party to the litigation that I didn't think needed to be aired. I simply filed the brief in a sealed envelope with a motion to have the case sealed pasted to the envelope. No green paper; no filet of brief.

The first 15 minutes or so of the argument about the secrecy is pretty interesting. I can't make much of the rest on the merits.

Time Stamps Bloat Court PDF Files

2008-04-04T12:20:00.005-04:00

The recent practice of the Clerk to include time stamps with the PDF files bothers me. The graphic bloats the files from 75-150 KB to 500 KB. Half a megabyte for information that interests me not at all.

The graphic slows down loading considerably; and it's just plain ugly.

What do you think? Does anybody care whether an opinion was filed at 8:48 a.m. on April 1st?

Supreme Court & Court of Appeals Judges Resign!??!

2008-04-01T21:38:00.003-04:00

After issuing a spate of opinions today, all of the Supreme Court Justices and Court of Appeals Judges resigned en masse without comment.

After making some calls, I have learned that part of the deal to get Tom Crean to leave Marquette for Indiana was jobs for his assistant coaches. The assistant coaches will fill all the spots available on the Court of Appeals. There are 15 of those, so some trainers will take up the additional empty slots.

Because some of the Marquette players want to follow Crean and will have to sit out a year to do so, they will be taking Supreme Court seats. If there are still openings on the Supreme Court to fill, some student managers have agreed to transfer to IU and serve on the Supreme Court as additional work-study.

There's a rumor that if Northwestern wants a new coach, the 7th Circuit is similarly willing make room.

The Sunday Pickle

2007-12-09T00:03:00.000-05:00

For the Spam We Are about to Receive . . .

Flop.

Sometimes better, sometimes worse.
Energy Department estimates show a mass-produced fuel-cell engine
Would cost about four.

From being a source of energy production and into
The realm of fuel for transportation.
When dealing with highly contested resources,
Distributing the locking is key.

These wall or desk calendars are functional and beautiful to display at home.
In Cat I created two separate types, but now I am rethinking that choice.

It will be sold in New.

A Muslim has been elected to serve in the U.
The rituals of Hajj are complex, the schedule very demanding.

Located inside the mosque is the Ka'aba, a cube-shaped building.
You can then create custom text templates that use models created
In your designer to generate source code and other files.

They also discuss the differences between use-cases,
User journeys, and features.

Free for personal use. The Hajj has been performed by Muslims.
But non-Muslims are not issued visas for.

Sometimes better, sometimes worse.
Unfortunately it's not that simple.
For low-activity sites, and those using shared hosting,
SmarterPing will keep sites running smoothly and quickly.

These fingerprints can be used to ensure that your file is uncorrupted.

It's been a long day.

One Arizona Justice Gets It: Blakely & Unenumerated Aggravators

2007-12-08T22:37:00.000-05:00

Long, long ago, when wishing still helped, and Blakely was new and full of promise (as well as threat), I picked up on the astonishing, but correct, observation by the Vera Institute in this September 2004 piece that Blakely should / could mean the end of using aggravating circumstances not specifically defined by a statute. (See this post on aggravating circumstances and common law crimes.) And I included this as one of the 12 questions that I thought Smylie should address. (It didn't.)

I don't believe I have seen the issue discussed in an opinion before.

Well, on December 3rd, the Arizona Supreme Court issued State v. Price, Case No. CR-06-0435-PR. The majority opinion reverses a sentence because of Sixth Amendment problems created by Blakely's application to Arizona's sentencing system.

Justice Hurwitz wrote a concurrence in Price that addresses precisely this issue:

Price raised only Sixth Amendment arguments on appeal and the Court’s opinion thus appropriately turns only on the denial of a right to jury trial. But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the “catch-all” is the only factor that makes a defendant eligible for a sentence beyond the presumptive term.

. . . .

A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the “aggravated crime,” of precisely what is proscribed under the critical “catch-all” element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus “anything else the court or the state may someday later find relevant.”

Slip op. at ¶¶26-29. (The Arizona Supreme Court numbers paragraphs, which has to be the future to accomodate web citation.) Because Price did not raise the 14th Amendment Due Process problem, Justice Hurwitz is "content to leave final resolution of this conundrum to another day."

Doug Berman calls the "conundrum" "another tough Blakely nut" in his post on Price. I don't think it is either a conundrum or a tough nut. It's just an issue that no one has raised. The focus has been entirely on Blakely's Sixth Amendment implications. Even Price didn't raise the issue in his appeal. And he obviously had at least one justice waiting to return serve.

With the April 2005 amendments to Indiana's sentencing statutes and their evisceration of Blakely in Indiana well behind now, one might think that this issue is of purely academic interest among Hoosiers. It's just possible, though, that the 14th amendment common law crime claims that were not raised in direct appeals would provide some fertile post-conviction ineffective assistance claims.

Thanks to Doug Berman's work and his Blakely in the States mashup on Sentencing Law & Policy for making it so easy to catch up and keep up.

Question Presented in Edwards

2007-12-07T16:46:00.000-05:00

Here's the question presented from the order granting cert. in Edwards:

May States adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial?

Cert. Granted in Indiana v. Edwards

2007-12-07T15:58:00.000-05:00

The U.S. Supreme Court granted the State's cert. petition in Indiana v. Edwards Case No. 07-208. (Link to SCOTUS docket here.)

The issue in the case is whether someone who is competent to stand trial is therefore competent to represent themselves. The Indiana Supreme Court said, "yes." Does anyone think that cert. was granted to affirm?

The decision of the Indiana Supreme Court from last May in Edwards v. State is here (written by Justice Boehm). The Court of Appeals decision (written by now-Chief Judge Baker), which the Indiana Supreme Court vacated is here. But this is a case in which the ISC granted transfer to make the holding its own. It did not disagree with Judge Baker.

In the category of "Be Careful What You Wish For," Justice Boehm wrote in Edwards:

The State responds that more recent authority casts doubt on the continued vitality of the authorities on which Edwards relies. We agree that this contention has some force, but we conclude that we are bound by United States Supreme Court precedent and that the State must address its contention to that Court.

Guess the Indiana AG's Appeals Division took him up on the dare.

The Indiana Supreme Court's assertion that is bound by SCOTUS precedent should be taken with a grain of salt. On at least two occasions, it has explicitly said that is not bound by Jackson v. Virginia. A federal district court has said that those decisions are "unfortunate." Well, yes.

I'll have to look into whether this is a first: a SCOTUS cert. grant in a criminal case on a petition by the State.

Bassett: Headphones for All Prosecutors

2007-12-07T01:14:00.000-05:00

For an eye-opener, go have a listen to yesterday's oral argument in Bassett v. State. (RealPlayer required).

Maybe I've drunk too much defense Kool Aid, but I was fairly shocked to see the Indiana Attorney General's Office argue with a straight face that it's just fine for a prosecutor to listen to nine pretrial jail tapes of telephone conversations between a lawyer and his client--and in an LWOP case--without disclosing the fact to the defense or the court . That he had done so just happened to pop out at a bench conference toward the end of the trial.

At about 34 minutes into the argument the deputy A.G. actually says it would be just fine for a prosecutor to listen to such calls with the intent of discovering the defense's strategy or other information that would be useful at trial. A defendant should have to show harm, according to the DAG.

That said, having sobered up from the Kool Aid a bit by taking a tour of a number of cases, I am shocked that the authority on whether one has to show prejudice in such circumstances is remarkably split. The leading U.S. Supreme Court case relied upon by Basset during the argument is Weatherford v. Bursey, 429 U.S. 545 (1977). That was a § 1983 case. It says that once there is an intentional invasion of the attorney-client relationship, a Sixth Amendment violation is established if there is a realistic possibility of benefit to the State or harm to the defendant. This has been watered down in many circuits in various ways.

The best description of the split comes from Justice White's dissenting opinion from the denial of cert. in Cutillo v. Cinelli, 485 U.S. 1037 (1988):

In Weatherford v. Bursey, 429 U.S. 545, 558 (1977), we held that establishing a violation of a defendant's Sixth Amendment right to counsel requires a showing of “at least a realistic possibility” of prejudice to the defendant or benefit to the prosecution. See also United States v. Morrison, 449 U.S. 361, 365-366 (1981). This case presents the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information. The First Circuit held that where confidential defense strategy information is transmitted to the prosecution and the defendant makes a prima facie showing of prejudice, the burden then shifts to the prosecution to prove that there was no prejudice to the defendant from the disclosure. Cinelli v. City of Revere, 820 F.2d 474, 478, 480 (1987); accord, United States v. Mastroianni, 749 F.2d 900, 907-908 (CA1 1984). This position conflicts with the approach of other Circuits of requiring the defendant to prove prejudice. United States v. Steele, 727 F.2d 580, 586-587 (CA6); United States v. Irwin, 612 F.2d 1182, 1186-1189 (CA9 1980). It also conflicts with a third position that once a defendant shows that the prosecution has improperly obtained confidential defense strategy information or has intentionally placed an informer in the defense camp then no showing of prejudice is required, for those acts constitute a per se violation of the Sixth Amendment. United States v. Costanzo, 740 F.2d 251, 254-255 (CA3 1984). Because of these conflicting approaches among the Circuits, I would grant certiorari.

I don't know what a "prima facie showing of prejudice" would look like in the circumstances of Bassett's case. During the argument, Justice Boehm made the point that to get into the question of prejudice, the privileged communications would have to be further revealed. I don't think that is much of a problem. Once the prosecutor had listened to the conversations, the privilege was blown--though maybe not.

More difficult would be trying to figure out what use was made of the information. You'd have to listen to the tapes, read the trial record, talk with the prosecutor, and then somehow figure it all out. If the phone conversations were just about the weather, then maybe the process would be easy. The actual usefulness to the State of any discussion between client and lawyer of trial strategy, witnesses, etc., would be extremely hard to parse out, I should think.

And all of this gets away from the exact words of Weatherford: "the realistic possibility of injury to Bursey or benefit to the State . . . ." Eavesdropping, albeit after the fact, though before trial, on nine phone conversations would seem to create quite a realistic possibility of benefit to the State without having to get into all the ugly details and assessments.

Given Weatherford's explicit language, even with the AEDPA, the case seems pretty well teed up for habeas.

I certainly hope the Indiana Supreme Court does not come up with the idea that phone calls to jails and prisons are not privileged, because everyone knows they may be recorded. The rule should be that they are privileged even though they may be recorded. Any other rule will make criminal defense practice almost impossible--as Joe Cleary pointed out today in the argument. I haven't looked up fed law on that subject. Maybe someone else knows what it is.

Comments?

Pleas Please Me--But Not the Indiana Courts of Late

2007-11-28T23:00:00.001-05:00

Doug Berman has this post over at Sentencing Law & Policy about the occasionally extreme penalties people pay for going to trial, especially in white-collar cases. I'm not going to re-post his post, but he says, "I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty . . . ." He concludes the post:

I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley). My anecdotal impression is that the trial penalty in some large corporate cases is now decades long. If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.

There is an ugly converse reality in Indiana. Pleading guilty is not worth much as a mitigating circumstance. There has been a deluge of cases in the last months, it has seemed to me, in which the Court of Appeals has said that the plea agreement itself contained whatever benefit a defendant should hope to reap from pleading guilty. There were two such cases in a day back on November 16th, both NFP: Chavez v. State (Judge Najam writing) and Sanders v. State (Judge Vaidik writing).

Here is what Judge Najam writes at the end of Chavez after a long quote from Justice Rucker's rehearing opinion in Anglemeyer (Ind. 10/30/07):

[T]he State agreed to dismiss the charge of attempted murder, as a Class A felony, in return for Chavez’s guilty plea to aggravated battery, a Class B felony. The State also agreed to cap the maximum sentence, reducing Chavez’s maximum possible sentence by four years. As such, Chavez received a substantial benefit by entering into the plea agreement. Thus, the trial court did not abuse its discretion when it did not identify his guilty plea as a significant mitigator.

Slip op. at 6. (The original opinion in Anglemeyer (Ind. 6/26/07) was the court's not entirely convincing effort to deal with one mess created by the 2005, post-Blakely, elimination of presumptive sentences in favor of "advisory" sentences--namely, what's an appellate court to do when a sentencing judge can do just about anything for any reason? Would have been nice if they could have pushed up the date of the opinion a couple of days to 6/24, Blakely's third birthday.)

Here's the language from Sanders:

[F]aced with two Class B felony convictions, Sanders was susceptible to a potential maximum sentence of forty years (consecutive twenty-year sentences for both counts). However, in exchange for his plea, Sanders’ maximum sentence was capped at eighteen years, twenty-two years below the maximum possible. This was a substantial benefit. See Anglemyer v. State, --- N.E.2d ---, 2007 WL 3151747 (Ind. Oct. 30, 2007) (“Anglemyer was exposed to a potential maximum sentence of twenty-eight years. In exchange for his plea, Anglemyer received the benefit of a twelve-year reduction in sentence. This alone was a substantial benefit.”).

Slip op. at 3-4.

But the problem is not the Anglemeyer rehearing opinion. The practical elimination of guilty pleas as mitigating pre-dates October 30th. From some quick research, the root seems to be in a case written by Chief Justice Shepard in 1999, Sensback v. State, 720 N.E.2d 1160 (Ind. 1999). There he writes for the court, without citation to any preceding authority:

A guilty plea is not automatically a significant mitigating factor. . . .

. . . .

While Sensback now argues that the likelihood of being sentenced to life without parole was too remote a possibility to be adequate consideration for her plea, there was a time when she appeared to consider it worth avoiding. Sensback received benefits for her plea adequate to permit the trial court to conclude that her plea did not constitute a significant mitigating factor.

720 N.E.2d at 1165. (Footnote omitted).

Without going into the detail of the cross-talk among the cases after Sensback, which seems, after possibly hasty reading, to pit Justice Sullivan against the Chief Justice's view, it had always seemed that there were two 800-pound gorilla per se mitigators in Indiana sentencing: lack of criminal history and a guilty plea. (Mental illness is a possible candidate for a third gorilla.) In 1982, in Williams v. State, 430 N.E.2d 759, 764 (Ind. 1982), the Indiana Supreme Court said:

[A] defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return. Both this Court and the Federal Courts have recognized the state's legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining which is mutually beneficial to both a defendant and the state.

And to mention just one bit of the cross-talk since Sensback, Justice Sullivan's opinion in Francis v. State (Ind. 11/9/2004) goes so far as to say in footnote 2 that "a sentencing court is inherently aware of the fact that a guilty plea is a mitigating circumstance . . . ."

The old regime seems to have been that one got credit for pleading guilty, period. Maybe more, maybe less, but the more or less did not depend on what the State had done by way of dismissed charges or sentencing caps in a plea agreement. The courts did not go behind the fact of a plea agreement to see what kind of a deal it was. That's really what Williams says. The plea itself benefits the State, regardless of any agreement's terms.

That is, the State used to have an incentive to overcharge just to induce a guilty plea in exchange for dismissed or reduced charges. That has not changed. But now there is an additional incentive to overcharge: the more the State appears to give away in a plea agreement, the less the plea agreement will mean as a mitigator. And it would seem up to a defendant to argue that charges dismissed were either meritless or meaningless because of double jeopardy problems. In the cases I've skimmed, those arguments don't get very far.

I really am not a sentencing maven. Blakely's divinity for me derives (derived?) from its factless formalism that reshaped, for a while, every piece of criminal process it touched. Maybe someone out there who knows more about sentencing has a different take on what's going on with pleas as mitigators.

Comments?

Danforth v. Minnesota: Major Geek Time

2007-11-04T22:09:00.000-05:00

For Blakely in Indiana, the only game left in town is retroactivity. The argument in Danforth v. Minnesota last week has brought me out of lurking. The question, bluntly put, is whether the States are stuck with the U.S. Supreme Court's retroactivity analysis as stated in Teague v. Lane. For all the background, SCOTUSBlog has a wiki with summaries galore and the briefs. The oral argument link (directly to the PDF file) is here.

There has been a great deal of discussion of this case. SCOTUSBlog's post here, Sentencing Law & Policy here (among a number of posts), and Orin Kerr on the Volokh Conspiracy here. The SL&P post also points to Ann Althouse's post, in which she describes the case as "perhaps the most interesting case I've seen in 20 years."

I'm with Doug Berman: this is the case for the law geek. Maybe for the Ueber-Geek. And there is a lot of geeky goodness in the posts I've linked to above.

But if you read those posts, if you read the argument itself and see what the Nine Geeks were interested in, it looks a lot like a raw, "It is-It ain't" argument.

I want to suggest in what follows that all of the geeks are failing to think about this problem correctly. I don't think Teague has anything to do with "federal common law," or the supremacy of Supreme Court decisions. The solution to the problem is that there is no problem at all, because Teague does not speak to the state courts.

The short explanation is that because States do not have to offer collateral review at all, they can quite literally do whatever they like when they do offer collateral review. What they do or do not do has consequences, but those consequences are never a result of having failed to "apply" federal law.

To fellow geeks who think that solution is question-begging, I offer the following more formal presentation:

1. Teague is only about what rules decide whether a new rule of constitutional procedure applies to cases retroactively on collateral review.

2. The question in Danforth is whether those rules apply to state as well as federal court decisions.

2. The federal Constitution does not require that States offer collateral review of convictions or sentences at all.

3. Because States do not have to offer collateral review at all, they may do whatever they wish, subject to certain federal due process procedural limitations, if they do offer collateral review. That is, nothing prevents States from saying, for example, that Strickland v. Washington requires a post-conviction petitioner to show that his lawyer was wearing an off-putting tie during closing argument in order to obtain relief.

4. There are great benefits to the States, however: a) if they do offer collateral review; and especially b) if they correctly apply the two-prong analysis that Strickland actually announced.

5. The great benefits may be more like the avoidance of great penalties for failing to offer collateral review at all or for failing to follow Strickland as written. In either case, a prisoner may file a habeas petition in federal court and get de novo review of his claims, almost as if it were a direct appeal--though not quite, because of Brecht v. Abrahamson and its limitation on harmless-error analysis.

6. But again, nothing requires that state courts apply Strickland at all or even as written. So when state courts do "apply" federal law as written, they're really only saying that as a matter of state law, we're doing something that looks like what the feds do. They are not applying federal law directly.

7. It follows that Teague has nothing to say directly about collateral review in state courts. It's effect is entirely indirect. And that indirect effect can only seen in cases in which SCOTUS has held a case to be fully retroactive and in States that have no collateral review or don't at least offer relief where Teague would as well.

How about a metaphor? The state and federal courts have two completely distinct sandboxes. The state courts do not have to play at all in their sandbox; and if they do play, they can build whatever sort of castles they like. If the state court castles happen to look enough like the castles in the federal courts' sandbox, though, federal habeas review is a lot kinder to the state decisions.

(If you don't like sandboxes, consider that you probably didn't want to read a version of the discussion I had this afternoon on this subject in which I invoked isomorphisms, homomorphisms, and homology groups. That was ugly.)

Suppose, now, that SCOTUS were to declare Blakely fully retroactive to cases on collateral review. Again, nothing requires that the States honor this. A State that has no collateral review at all would certainly not be required to create it just to accomodate a SCOTUS Blakely retroactivity holding. What would happen is that prisoners in a State without collateral review at all would go across the street to federal court with their habeas petitions.

There is one hole, at least, to this highly (overly?) formal take on the Danforth case. If state courts do not actually apply federal law in post-conviction proceedings but are merely aping it, as it were, SCOTUS would have no jurisdiction to take cert. petitions from those proceedings. But we know that it does.

Maybe it shouldn't and should have to wait for cert. petitions in habeas cases. After all, because States do not have to consider federal claims as part of collateral review.

I also undertand that this is an unusual way to think about state post-conviction proceedings. Section 2254 does, after all, speak in terms of "unreasonable applications of federal law." But I won't be deterred from suggesting that even Congress has failed to think correctly about what state courts are really doing in post-conviction proceedings.

Indiana happens to do Teague, but not directly. The Indiana Supreme Court adopted it as its own. Of course, under my approach, the Indiana Supreme Court could only "do" Teague indirectly. State collateral proceedings are always a matter of state law.

I cannot recall in which argument it was, but in a death penalty case, I believe, Justice Sullivan asked the Deputy A.G. whether the court should follow, lock-step, as it develops, SCOTUS's Teague jurisprudence. The answer was a predictable, "Yes."

Correct thinking or the lack of it aside, I really do think the key to Danforth is the purely voluntary availablity of state collateral review: Teague is only about collateral review.

Comments would be great.

What a subject to return with and to.

Jones v. State: No Difference between the Substance of Cocaine and Heroin?

2007-03-28T10:28:00.000-04:00

From yesterday: Thomas Jones v. State, Court of Appeals No. 49A05-0604-CR-211 (Ind. Ct. App. March 27, 2007). What can one say? The State amends a narcotics charge a week before trial, changing the controlled substance from cocaine to heroin. Because the charge was still under the same statute and section; and because the class of felony was the same, the court says that the amendment was merely "a matter of form." And this even though the State knew the substance was heroin and not cocaine in July 2004. The State made the change on March 15, 2006, almost two years later, and the trial began on March 20, 2006.

This cannot be right after Fajardo v. State, which the Indiana Supreme Court decided in January. Or let me put it differently: we'll see if Fajardo is worth taking seriously, if the Supreme Court grants transfer. Fajardo was a signal case, finally taking seriously the statutory limitations on amendments to charging informations.

The deal is that the State may amend charging informations at will, if the amendment is a matter merely of form and not substance. If an amendment is one of substance, then the State has to amend substantially before trial. (If you want the gory details of the statute, it's set out in Fajardo, or you can get to it here: Ind. Code 35-34-1-5.)

Fajardo purported to put some teeth in the statute and to clean up the awful mess in the cases on the subject going way, way back. The new test to determine if an amendment is one of substance or form has not changed much. As set out in Fajardo, without citations, it's simply this:

[A]n amendment is one of form, not substance, if both

(a) a defense under the original information would be equally available after the amendment, and

(b) the accused's evidence would apply equally to the information in either form.

And an amendment is one of substance only if it is essential to making a valid charge of the crime.

This doesn't make a lot of sense to me, since the test does not seem to cover the entire universe of possibilities. But under either test, changing cocaine to heroin seems to me almost obviously a change of substance. In Indiana, you don't get to charge someone with possessing any old controlled substance and then let the cat out of the bag about what substance it was at trial. So if you charge cocaine, it is a complete defense to the charge that it was heroin. And Jones's evidence that the substance was, in fact, heroin and not cocaine, might apply "equally" in some sense under both a cocaine and heroin charge. But not "equally" in any sense that Jones would appreciate.

And if you go to the second part of the test, possessing cocaine and possessing heroin are two different crimes, unless you buy Judge Mathias's opinion that, in essence, says that crimes are the same so long as they are charged under the same statutory section. But to repeat, I don't think that can be correct if possession of heroin is a complete defense to possession of cocaine.

In fact, it seems to me that this multiplicity of tests is unnecessary. What about simply the following, which partially comes out of the law regarding variances: If the case had been tried on the charge as made before the amendment, would the evidence sought to be introduced by the State have been sufficient for conviction under the pre-amendment charge? If not, then the amendment is one of substance. In Jones, since proof that the narcotic was heroin could not support the original charge that it was cocaine, the switch from cocaine is one of substance.

There's a nice case on this involving resisting law enforcement: Bonner v. State, 789 N.E.2d 491 (Ind. Ct. App. 2003). Essentially, the State does not get to change during trial which law enforcement officer was resisted:

In this case, the names of the particular officers from whom Bonner fled were essential to the proper description of the State’s two separate resisting charges, and the State had to specifically identify the officer or officers whose arrest efforts Bonner allegedly resisted in each information. Given the number of officers involved in the police chase and the number of ways Bonner was alleged to have fled from the different officers, the separate Resisting charges would not have provided Bonner with sufficient information to anticipate the proof that would be adduced against him with regard to each charge if the officers pertinent to each separate offense had not been particularly identified.

I don't see how the switch from cocaine to heroin is any different.

But the variance approach doesn't quite cover matters either. And, as the current test has it, something has to be included about defenses. If someone has an alibi defense all ready to go, the State should not get to change the date, time, or place of an offense at the last minute.

I guess, as always, we'll see what happens. It would be ashame if transfer were not sought and granted. It's an ideal case for the Indiana Supreme Court to give a meaningful edge, either way, to the law of amendments.

Oral Argument about Blakely and Belated Appeals

2007-03-27T01:08:00.000-04:00

If you read the Indiana Law Blog--and who doesn't?-- then you probably saw this item about an oral argument in the Indiana Supreme Court about Blakely and belated appeals. Well, the argument did happen last week. And although I did not make it into the attorney list in the web description, I did do about 15 minutes of the argument.

The irony is that my 15 minutes of fame had nothing to do with Blakely, because my client's case (Moshenek in the Court of Appeals) had nothing to do with Blakely.

And here's how it happened. A friend of mine became a judge. I was "babysitting" the case on transfer. Suddenly I find myself going to the Little Big Top (SCOTUS has to be The Big Top) in a case not mine and about which I know almost nothing, on an issue I know almost nothing about (Post-Conviction Rule 2 and belated appeals), and I don't get to talk about Blakely--the other guy does. (And John Pinnow did a brilliant job of it too, I think.)

Christina Klineman had the unenviable job of doing rebuttal for three cases not her own in the four-case scrum. What a job she did.

Anyway, here's the direct link to the argument. (RealPlayer required and will open on clicking the link.) I think I spoke loudly enough for the court. The microphone is another matter. John Pinnow does the first 17 minutes or so about Blakely. I do the next 15 about Post-Conviction Rule 2. The State does its 40 minutes. Finally, Christina Klineman cleans up after the mess left by the State.

From total ignorance, I might have become the world expert at the moment on Indiana Post-Conviction Rule 2. And I hope the Indiana Supreme Court doesn't do anything to change that. If there was any point I tried to get across that was not specifically related to my client's case, it was the Post-Conviction Rule 2 is older than dirt--actually a 1970 codification of the common law--and that there is no reason Blakely should deform what has been the uniform analysis under the rule.

Also, as I said to the court, Post-Conviction Rule 2 is an odd sort of creature. There is a fundamental constitutional right to an appeal in a criminal case. It's right there in the Indiana Constitution. Post-Conviction Rule 2 puts the burden, the cases say, on defendants to prove that they did not waive their right to an appeal. The cases say that; the rule doesn't. And I cannot think of another context in which the law requires someone to prove that they did not waive a fundamental constitutional right. It (almost) always works the other way 'round.

Here are the links to the Court of Appeals opinions in the other cases: Gutermuth, Boyle, and Medina. The Supreme Court has granted tranfer in Gutermuth already. Transfer is pending in the others. Medina was NFP.

For some background, here are links to my previous posts about what I called Blakely "pop-up" appeals:

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite (10/19/06)

Baysinger: Another Blakely Pop-Up Belated Appeal (10/13/06)

Gutermuth: The Blakely WayBack Machine (6/8/06)

And a final note. When you start into the history of the law, all kinds of things pop up--not just Blakely appeals. Possibly the best bit of irrelevance I stumbled upon was Sanders v. State, 85 Ind. 318 (1882). Turns out that Mr. Sanders confessed to the murder of his wife on the advice of his lawyer. The alternative was a lynch mob. Pretty good advice that lawyer gave. Here's a snippet from the facts:

The facts stated and proved are these: In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county-seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county-seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: "As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved."

The Indiana Supreme Court stepped up to the plate and reversed Mr. Sanders conviction, even though procedurally there was no real way to do it:

It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance.

The court found itself in a pickle, because it could not grant a new trial where there had been no trial. An appeal would have been useless with the confession in the record. So, if I read the case correctly, the Sanders court pulls a writ of error coram nobis out of the English common law hat--with some modifications--and saves the day. And from Sander on, that was post-conviction relief in Indiana until the Post-Conviction Rules.

Before the Hour of Sunrise . . .

2007-03-26T16:28:00.000-04:00

There is an execution on the horizon: May 4th. In this order, the Indiana Supreme Court today denied David Leon Woods' request to file a successive post-conviction petition. The online docket sheet shows the order setting the execution date.

Because the issue is access to successive post-conviction relief, I very much doubt a federal court is going to interfere.

Oliver: An NFP Reversal for the Denial of Counsel

2007-03-23T22:20:00.000-04:00

There was an interesting NFP reversal today: Oliver v. State, Court of Appeals No. 16A01-0609-CR-413 (Ind. Ct. App. March 23, 2007) (Bailey, Vaidik, Barnes). The court unanimously reversed a marijuana misdemeanor conviction, because the trial court forced Ms. Oliver to go to trial without a lawyer. Or at least the trial court did not make sufficient inquiry into the matter.

Another NFP reversal. A misdemeanor conviction that the Indiana Supreme Court is unlikely, I would guess, to by much interested in. Especially if it's NFP.

So the question is: do judges on the Court of Appeals actually try to hide their cases among the NFP's? I don't have the statistics to say one way or the other. And the Supreme Court certainly grants transfer in a fair number of NFP's in which the Court of Appeals has granted a criminal appellant relief.

I will say that were I the Deputy Attorney General on this case, I'd ask the court to publish the opinion. And I'm a little surprised the court didn't publish on its own. There aren't that many Indiana cases around on forcing defendants to trial without a lawyer.

Just warming up on the NFP's.

Washington State: Blakely applies to consecutive sentencing

2006-12-01T16:43:00.000-05:00

Sentencing Law & Policy has this post about the Washington Supreme Court's decision yesterday in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006). The short of it: because there is a statutory presumption in Washington that sentences are to be served concurrently, any factual finding used to justify consecutive sentences is subject to Blakely.

Doug Berman says that the case "may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court." I'd say more than "dovetail." In the Burton oral argument, Jeff Fisher spent a great deal of his time answering questions about consecutive sentencing in Washington. He fends off Justices Souter, Breyer, and Stevens on this issue in pages 4-9 of the transcript. And then he has to deal with Chief Justice Roberts' question beginning on page 9:

CHIEF JUSTICE ROBERTS: I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?

MR. FISHER: Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.

CHIEF JUSTICE ROBERTS: So you'd have --

MR. FISHER: Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.

CHIEF JUSTICE ROBERTS: And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?

MR. FISHER: That's right.

CHIEF JUSTICE ROBERTS: So under this system if you had a regime where if you're convicted of murder
and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.

MR. FISHER: If the judge needs to make an extra finding beyond the elements of either of those two
crimes to run them consecutively, then it would violate Blakely.

THE COURT: But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?

MR. FISHER: You haven't had a case in the Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crime for conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered.

At page 35, the State argues:

MR. COLLINS: So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact.

Whatever other problems Burton may have--and there are a number--Van Delft directly resolves this particular dispute. (Fisher was correct; and there really should not have been much of a dispute about this. It is a pity that so much argument time was spent on it.)

Of course, the Indiana Supreme Court in Smylie already has held that Blakely does not apply to Indiana's pre-fix consecutive sentencing provisions. Because there was a judicially imposed requirement that consecutive sentences be supported by an aggravating circumstance, I was not sure why. I am even less sure now.

I still think that Burton, despite its problems, is going to be a blockbuster. Why else grant cert in an unpublished 9th Circuit case that affirms the denial of habeas relief? And whatever the result, you have to love Fisher's strategy: Blakely was compelled by Apprendi--indeed, it was no different. You don't like that? O.K., Blakely was so new and fundamental that it should be applied retroactively, not just back to Apprendi, but to the beginning of time.

Baysinger: Another Blakely Pop-Up Belated Appeal

2006-10-13T19:46:00.000-04:00

The Court of Appeals has decided another Blakely belated appeal: Baysinger v. State, Court of Appeals No. 01A02-0512-CR-1178 (Ind. Ct. App. October 13, 2006). Judge Vaidik wrote an opinion concurring in the judgment. It sets out the problem of Blakely and belated appeals very nicely. I disaree with the result she would reach, but there's something to disagree about.

I call it a "Blakely pop-up" appeal, because Baysinger's conviction and sentence were "final" in 2001, after Baysinger failed to file a direct appeal. Then in March 2005, Baysinger requested permission to file a belated appeal. So, When Blakely was decided in June 2004, Baysinger's case was, arguably, both final and not pending on direct review.

The majority opinion in Baysinger goes through some (now-familiar) tortured analysis of provisions in the post-conviction rules to conclude that Baysinger's case was not final when Blakely was handed down. That's because he had not exhausted the possibility of requesting a belated appeal.

That doesn't seem right to me. On that theory, almost no case that was not appealed originally would ever be final. It would be simpler and, more correct, I think, simply to say that a direct appeal is a direct appeal. And we apply the law as it exists at the time we decide a direct appeal.

I have read Griffith v. Kentucky again. Several times, actually. And it is pretty clear from the opinion and from Justice Rehnquist's dissent, that Griffith just does not quite cover the case. Griffith had in mind the situation when a case is literally either pending on direct review or not final at the time a new case is announced.

Additionally, the post-conviction rules really don't cover a belated appeals of sentences. Post-Conviction Rule 2, § 1, provides for "a petition for permission to file a belated notice of appeal for appeal of the conviction." And it's well-established that there are no belated appeals from the denial of post-conviction relief, because they are not appeals "of the conviction." Compare what these two cases say in light of the language in the rule:

Gutermuth v. State (Ind. 11/9/04):

We hold that the proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under P-C. R. 2.

Davis v. State (Ind. 7/19/02):

We have held more than once that P-C.R. 2(1) is a “vehicle for belated direct appeals alone.” See, e.g., Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997) (quoting Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)). It provides petitioners with a method to seek permission for belated consideration of appeals addressing conviction, but does not permit belated consideration of appeals of other post-judgment petitions. Howard, 653 N.E.2d at 1390.

Of course, the Indiana Supreme Court had to do something about the many cases in which trial courts had misinformed people that by pleading guilty, they were waiving their right to appeal anything. (See this post about the "Blakely Wayback Machine" from last June when Gutermuth and Collins came down.) It's just interesting what vehicle the court chose: a rule, the language of which specifically forbids the remedy the court provides.

Would it not have been easier simply to say that the Indiana Constitution provides a right to an appeal in all criminal cases? Then, when a trial court misinforms someone that they are waiving they're right to appeal, there has been no voluntary, knowing, or intelligent waiver of the right to appeal a sentence. Therefore, where that has happened, a person is entitled to post-conviction relief under the normal post-conviction procedures. The remedy is an appeal, much as the remedy when appellate counsel has been ineffective is a new appeal--even if there is no mechanism that I am aware of by which an Indiana post-conviction court can order a new appeal.

Of course, I think Blakely should get full retroactivity either universally under Teague, or in Indiana, for reasons peculiar to Indiana sentencing before the regime change in April 2005. So what's going on with all these belated appeals and Griffith retroactivity is merely the entree, as it were.

That's the procedural stuff. The substantive analysis in Baysinger I find both familiarly and freshly bewildering. Setting aside the four aggravators offensive to Blakely, the opinion concludes that the single remaining aggravating circumstance, Baysinger's criminal history, saves the enhancement to 65 years. This is how they do it:

[A] Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger’s prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003) (“Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.”) (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)).

So much for Chapman harmless-error analysis for constitutional errors. As Justice Kennedy said during the Cunningham oral argument in a different context: "Well, it is the same old record we've been playing."

I forgot to mention: Baysinger's criminal history consisted of a single misdemeanor conviction for possession of marijuana. Harmless error aside, the Court of Appeals justifies the maximum sentence based on this misdemeanor conviction because: 1) it occurred only six months before the murder; and 2) the murder occurred during a drug-related dispute.

So the Court of Appeals can say with confidence that the trial court would have imposed the same maximum murder sentence had it considered only this single aggravating circumstance together with the two mitigating circumstances it found? Maybe.

But one of the mitigating circumstances was that Baysinger had only one prior conviction. The same one, it turns out, that justifies the maximum sentence for murder.

Note: I, like the rest of the world, am trying out posting from the new Google Docs. I guess we'll see if there's a lot of editing after posting. Apologies ahead of time to anyone who gets the posts by RSS, if you get the feed, and it looks awful. So here goes . . .

Salazaar v. State: A Feat of Memory Leads to a Wrinkle on Belated Appeals.

2006-10-11T16:14:00.000-04:00

There has been a spate of belated appeals cases in the published and unpublished decisions over the last few weeks. Eight published decisions by my count since July 25th.

One came down yesterday with an interesting practice pointer in it for those who labor in the land of Indiana's Post-Conviction Rules, which govern belated appeals. At least it contains a tidbit that I did not know about. The case was Salazaar v. State, Court of Appeals No. 79A02-0502-PC-130 (Ind. Ct. App. October 10, 2006).

For some reason, requests for permission to file a belated appeal are run by Post-Conviction Rule 2. (I guess the reason is that the Indiana Supreme Court has set it up that way.) Normally, in post-conviction proceedings under Post-Conviction Rule 1, one has to enter the trial record as evidence. According to Salazaar, "Due to the very nature of a Post-Conviction Rule 2 hearing, and unlike a petition for post-conviction relief under Post-Conviction Rule 1, the entire record of the original trial is automatically before the trial court in a Post-Conviction Rule 2 proceeding. Henry v. State, 170 Ind.App. 463, 466, 353 N.E.2d 482, 484 n.2 (1976)." Slip op. at 9.

There's no reasoning about this to speak of--just the citation to a footnote in Henry. I've looked at Henry. Just the footnote with the proposition. No reasoning. And, with a half-hearted search, I have not been able to find the proposition anywhere else. (Please comment, if you know of other cases.)

But guess what. Judge Sullivan wrote Salazaar; and Judge Sullivan was on the panel that decided Henry. It looks a bit as though Judge Sullivan has had that Henry footnote tucked away for 30 years--and from an opinion he did not even write.

Amazing.

United States v. Resendiz-Ponce: Trial on a Bus?

2006-10-10T21:07:00.000-04:00

Thanks SCOTUSBlog for putting up the link to the oral argument transcript in United States v. Resendiz-Ponce.

Only Justices Scalia and Souter seemed to get it. In Justice Souter's words, "When is an indictment not an indictment?" When it leaves out an element of the offense, perhaps?

This case involves attempt to re-enter the U.S. case. But the federal indictment did not allege what the substantial step was that constituted the attempt. (The Ninth Circuit seems to have discussed the matter in terms of "overt acts," which is conspiracy, and not attempt, language. Was it driving to the border? Was it presenting false identification? Was it having breakfast?

The government's position was pretty simple: the guy was convicted by a petit jury, properly instructed about all the elements. Any deficiency in the indictment was harmless and ought to be treated as such. This, even though Resendiz-Ponce objected to and moved to quash the indictment, which motion the district court denied.

If federal law requires that an indictment allege an attempt's substantial step with specificity--and Justice Breyer said he had read up on the subject and was not sure--then no substantial step in the indictment, it seems to me, means no indictment. If there's no indictment, how can that absence be subject to harmless error analysis in light of the Fifth Amendment's indictment requirement?

The government argued that there are 70-80,000 indictments a year; prosecutors do get indictments wrong; we should count on district court judges to get it right; and even when they don't, it doesn't matter so long as a conviction results. The government's position--which I would find laughable, if a number of justices had not seemed to take it seriously--is that later conviction by a properly instructed petit jury will always make the omission of an element in an indictment harmless.

But let's just say that there are six possible acts that could have been proved the substantial step in this case. Is it too much to ask that the goverment go get a superceding indictment that alleges at least one, and maybe all six, of the acts? It could have done it in this case, before a trial. If later, at trial, the government proves a seventh act instead of one of the six, at least harmlessness can by analyzed in terms of prejudice caused by the degree of variance from the indictment.

If the government wins this one, the Fifth Amendment's indictment requirement will have been relegated doctrinally to irrelevance, it seems to me. I'm not saying that it's not almost irrelevant, practically speaking, now.

Maybe the Supreme Court will punt this one. See SCOTUSBlog's procedural analysis of the argument here, which I read as suggesting a deep drop and a kick.

On the third hand, if the government loses on the merits, the decision could, arguably, have a big Blakely effect. Aggravating circumstances are now elements. The reason a loss on the merits by Uncle Sam might not have much Blakely bang at all is that the decision would be grounded in the Fifth Amendment's indictment requirement.

Indiana does not have an indictment requirement. The law is clear, though, that a charging information has to allege the specific substantial step that was taken in an attempt. This is really no different from the requirement that a burglary charge allege the specific felony the burglar had the intent to commit when breaking in, e.g., theft.

But Indiana has it's own areas of movement toward trial on a bus. There's Lee v. State, which I have included in the sidebar as a Blatant Indecency. In Lee, the Indiana Supreme Court said that one cannot complain of a plainly illegal sentence, if one benefitted in a plea bargain of which the illegal sentence was a part. It is very hard to square that with the legion cases that say judges only have the power to impose sentences authorized by statute and that illegal sentences constitute fundamental error that may be raised for the first time on appeal. And Lee, a 1994 case, continues to have legs. An illegal sentence was affirmed on the strength of Lee just the other day in Borders v. State, Court of Appeals No. 79A02-0603-CR-180 (Ind. Ct. App. September 29, 2006).

And then there is a much older case, Floyd v. State, 650 N.E.2d 28 (Ind. 1994), which is really seven cases rolled into one. The upshot of Floyd is that anyone is a judge, so long as everyone agrees that she is. (Hard to square Floyd's upshot with its opening shot: "The Indiana Constitution requires that judicial acts be performed only by judges. Ind. Const. art. 7, § 1. Thus, only a duly elected or appointed judge of the court or a duly appointed judge pro tempore or special judge may enter an appealable final judgment, including a criminal sentence. When a court official who is not a duly elected or appointed judge of the court purports to make a final order or judgment, that decision is a nullity.")

Trials on a bus cost the administrative state very little; and the administrators are winning. I guess we'll see if they win Resendiz-Ponce.

Cunningham coming up.

From the Land of the NFP: Sanders v. State

2006-10-06T19:49:00.000-04:00

The flood of NFP decisions now available for public viewing has provided some very interesting stuff. There are many cases that when I look at them, I wonder why they are NFP. But in this post, I want to take on a case that is definitely small potatoes and deservedly NFP. It's an astonishing collection of spuds nonetheless.

The case is Sanders v. State, Court of Appeals No. 10A01-0512-CR-585 (Ind. Ct. App. October 4, 2006) (mem.). Sanders was not very well-behaved at various points during his trial, so the trial court excluded him from closing arguments and from the habitual substance offender phase. Sanders claimed on appeal that he had been denied his Sixth Amendment right to be present at all critical stages as well as his similar right under Article 1, § 13(a), of the Indiana Constitution.

Sanders forfeited / waived his right to be present at those times, the opinion says, by his behavior. Fine. End of issue.

Except, unnecessarily, the opinion goes on:

Moreover, even if we were to agree with Sanders, a denial of the right to be present during all critical stages of the proceedings under the Sixth Amendment is a constitutional right that is subject to a harmless error analysis. Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002), reh’g denied. Further, under the Due Process Clause, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001). Lastly, a violation of Article I, Section 13 of the Indiana Constitution is subject to a harmless error analysis. Debro v. State, 821 N.E.2d 367, 375 (Ind. 2005). Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure. Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure).

Slip op. at 5. This apparently unobjectionable paragraph of superfluous legal analysis is, in fact, practically a perfect storm of errors. First, the opening proposition supposedly ripped from Hernandez is not complete. What Hernandez actually says is: "[T]he United States Supreme Court has held that denial of this constitutional right is 'subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless.' Rushen v. Spain, 464 U.S. 114, 117-18 n.2 (1983) [(per curiam)] (citations omitted)." (Emphasis added).

So, contrary to the Sanders opinion and according to the case it cites, a critical-stage error is subject to harmless error analysis--except when it's not. And there is no explanation in Sanders about why exclusion during closing arguments and the subsequent habitual substance offender phase does not qualify for the alternative treatment as structural error.

But why is Hernandez being cited at all? Hernandez was a right-to-counsel case, not a right-to-be-present case. The two are related, but not the same. As in Hernandez, the right-to-counsel cases usually talk about the need for a lawyer when confronted with legal intricacies. And Sanders's lawyer was always present. The right-to-be-present cases are vaguer . . . see the next paragraph.

The next proposition is similarly incomplete. The citation to Hubbell is correct--Hubbell actually says what Sanders says it does. ("In sum, 'a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.' Kentucky v. Stincer, 482 U.S. 730, 745 (1987).".) But here is part of Hubbell that Sanders leaves out: "Although Hubbell has the right to be present at significant stages of the criminal proceedings, he has not established that any hearings he missed, including the one on July 14, 1999, were of critical importance to implicate the Confrontation Clause."

It is not hard to guess why Sanders leaves that out: it is hard to imagine how exclusion from the habitual substance offender phase did not "implicate the Confrontation Clause," in the words of Hubbell. And it's similarly not hard to guess why Stephenson v. State, a 2001 Indiana Supreme Court case, wasn't the citation of choice here in Sanders, even though Stephenson is really the case on point:

First, Defendant claims his Sixth Amendment right to be present in the courtroom at every stage of his trial was violated. This right is rooted in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v. Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when witnesses or hearsay evidence are presented in the defendant’s absence that affect the defendant’s opportunity for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987).

With respect to the proposition regarding Article 1, §13 of the Indiana Constituion and harmless error, the citation to Debro is stunning for a couple of reasons. First, to the extent that Debro involved Article 1, § 13(a), at all, it involved the state Confrontation Clause, which is quite different from the Sixth Amendment's, providing for the right "to meet the witnesses face to face." It did not involve the provision of Article 1, § 13(a), that provides for the right of a defendant "to be heard by himself and by counsel." Debro was about hearsay testimony admitted over objection while both Debro and his lawyer were present.

Second, Justice Rucker's Debro opinion makes no mention at all of Article 1, § 13, and harmless error analysis in any context. The opinion specifically declines to decide anything under Article 1, § 13: "We need not determine today whether our state constitution affords a defendant a right of confrontation in a sentencing hearing." (In fact, citing Chapman, Debro decided that the federal Confrontation Clause violation found was harmless because there was "sufficient other evidence.of probative value." Now there's Chapman harmless error analysis for you.)

Back to the final bits of the Sanders paragraph: "Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure." The first half of this has Chapman harmless error analysis backwards, as did Hernandez. If there was federal constitutional error in Sanders being excluded then, at best, from the State's perspective, the State had to show beyond a reasonable doubt that Sanders's absence did not contribute to the outcome of the habitual substance offender phase. And my guess is that complete exclusion, if error, is structural error. I have not done the research on that, though.

That Sanders failed to show "how his presence would have contributed to the fairness of the procedure" does not indicate that the error in excluding him was harmless. It indicates that there was no error because the moment was not a critical stage.

And lastly: "Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure)." This is the same problem. The parenthetical proposition from Ridley says nothing about harmlessness. Indeed Ridley, in the passage cited for the reasons mentioned, concluded that Ridley's absence had not occurred during a critical stage.

O.K. There is a reason that some cases are NFP. But so much of this stuff ought to be boilerplate. It ought to be correct boilerplate. And really--NFP or not--how much can go awry in a single, unnecessary, paragraph?

Burton: How Are They Even Going to Get to Blakely's Retroactivity?

2006-10-04T20:56:00.000-04:00

Wow. I don't want to turn this into the Burton blog, but there's so much to read and say. To give credit to the blog chain: Sentencing Law & Policy led me to Crime & Consequences. From there I landed at the Burton brief collection here, courtesy of the Criminal Justice Legal Foundation. That's what blogs are about: movement like an orangutan through the tops of trees in the rain forest.

I almost took Doug Berman's post at SL&P as a personal invitation:

But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

(And what about the application of Blakely to consecutive sentences, which is also presented by Burton?)

I have not thoroughly digested the State's (Respondent's) brief; but it does begin with the threshhold question of whether Burton's habeas petition was successive and therefore barred without express permission from the Ninth Circuit to file it. Here's what Crime & Consequences has to say about the question:

There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide.

But I think I have stumbled upon a solution to the problem that someone cleverer than I in Washington figured out at cert. time. The solution was suggested to me by the State's brief and its reliance on Slack v. McDaniel. Which sent me to 28 U.S.C. 2844(b) and eventually landed me in a fascinating death-penalty habeas case out of Indiana: Lambert v. Davis. Judge Ripple dissented from the conclusion that Lambert's petition was "successive." And I think that SCOTUS is going to repeat, in essence, Judge Ripple's Lambert dissent.

The gist of that dissent arises out of Slack, which points out that "second or successive petition" in 2244(b) is a term of art about which Congress knew in passing the AEDPA. It does not mean what it literally says, but incorporates the Court's prior "abuse of the writ" jurisprudence. Burton did not file repetitive habeas petitions; he merely split the baby between convictions and sentencing, because that's how his case fell out in the state courts. So, I expect SCOTUS is going to say at least that the district court had the discretion not to treat the petition challenging Burton's sentence as a "second or successive petition."

The discretion part has to be there because of language in the plurality opinion in Rose v. Lundy, which says that a petitioner who has filed a mixed petition with exhausted and unexhausted claims, and who decides to proceed with the unexhausted claims only, "risks" having dismissed as a successive petition a later petition that includes the formerly-unexhausted claims. (The site I occasionally use to test the readability of posts is going to go nuts with that sentence.) Rose, a 1982 case, was pre-AEDPA. But that is of no matter if the AEDPA language "second or successive petition" in 2244(b) merely incoporporated pre-AEDPA case law.

I personally find this whole approach hard to square with 2244(b)'s unambiguous language. But the language is only unambiguous, I guess, if you don't consider "second or successive petition" a term of art--which Slack says it is.

Which leads to an interesting twist. In Slack, Justices Scalia and Thomas dissented. Justice Scalia's dissenting opinion would lead one to think that neither Justice Thomas nor he would be sympathetic to Burton's having attacked first his conviction and then his sentence in successive petitions. At the same time, if Burton is going to receive any Blakely relief, one would have to suppose that both Justices Scalia and Thomas will be among those voting for that relief. How does that work?

I don't know if Burton is a horrible vehicle to decide the Blakely questions involved. It certainly presents a number of labyrinthine complications. But that's habeas: both divine and hellish.

Rehearing en banc in Lambert was denied in August. Maybe my sense of timing is off, but my guess is that Lambert's inevitable cert. petition is going to result in a GVR in light of Burton. Or nothing, if it turns out that Burton's a dud. (But how could that happen?)

Oy, my brain hurts. Time to watch baseball.

The Sunday Pickle

2006-10-01T20:20:00.000-04:00

The Rules of Evidence

What you want to say most
is inadmissible.
Say it anyway.
Say it again.
What they tell you is irrelevant
can't be denied and will
eventually be heard.
Every question
is a leading question.
Ask it anyway, then expect
what you won't get.
There is no such thing
as the original
so you'll have to make do
with a reasonable facsimile.

The history of the world
is hearsay. Hear it.
The whole truth
is unspeakable
and nothing but the truth
is a lie.
I swear this.
My oath is a kiss.
I swear
by everything
incredible.

-Lee Robinson

From the Writer's Almanac for Saturday, Septmber 25, 2006.

Chestnut v. State (NFP): More on the Argument Not Made

2006-09-28T17:08:00.000-04:00

I have mentioned in a few places now that the there is an argument going unmade in Indiana's Blakely cases. Another case with the argument apparently unmade appears among today's NFP's: Chestnut v. State, Court of Appeals No. 14A05-0510-CR-587 (Ind. Ct. App. September 28, 2006) (mem.)

It's a child molesting case in which Chestnut pled guilty to molesting his granddaughter. The trial court improperly used the new "advisory" sentencing scheme, which is not subject to Blakely, but the Court of Appeals said that it did not matter. The only aggravator found by the trial court was that Chestnut's victim had been his granddaughter. But at the sentencing hearing, Chestnut admitted that the girl was his granddaughter; and that took care of any Blakely problem.

Well, not any Blakely problem, I think. That the victim was the defendant's granddaughter was not a statutory aggravator under the old sentencing regime. Aggravators are, after Apprendi, Blakely, and Recuenco, to be treated as traditional elements. So to use a non-statutory aggravator to enhance a sentence amounts to the creation of a common law crime. Common law crimes have been abolished in Indiana by statute. And a long time ago. {See these prior posts on this subject: here, here, here, and here.)

The argument, had it been made, would probably would not have affected this case. Chestnut received the "advisory" sentence, which is the same as the old "presumptive" sentence. And it would seem that the trend is to assume that presumptive sentences are immune to Blakely challenges. Just the day before yesterday, the Indiana Supreme Court reduced to the presumptive a sentence apparently offensive to Blakely. Hunter v. State, Supreme Court No. 52S02-0604-CR-153 (Ind. September 26, 2006).

Although I more than questioned this assumption in this post from the early Blakely wars, I have become a believer. I have become a believer chiefly because under the old sentencing regime, a judge did not have to give any reasons for imposing a presumptive sentence. So ex ante, one knows that one can receive the presumptive sentence for no reason at all. That would seem to take care of Blakely's 14th Amendment notice aspect.

As I read those prior posts on the use of non-statutory aggravators after Blakely, I was struck by something I said in the post about Heath back in May 2005: Sooner or later the court is going to have to address whether use of non-statutory aggravators under the now-defunct sentencing regime amounts to the creation of common law crimes." But as I mentioned in this post about Johnson from Colorado a couple of weeks ago, the only breath about non-statutory aggravators in any court that I am aware of was exhaled during a brief question by Justice Sullivan during the Smylie oral argument. (See beginning at 23:30 into the argument.)

Two Supreme Court Oral Arguments Tomorrow Morning

2006-09-18T13:50:00.000-04:00

The Indiana Supreme Court has two oral arguments scheduled for tomorrow morning (September 19th).

At 9:00, there's Snow v. England. Here is the summary provided by the court:

During a divorce proceeding, a child's guardian agreed to a financial obligation with respect to the child. After that party later resigned as the child's guardian, the Bartholomew Superior Court modified the divorce decree to eliminate this financial obligation. The Court of Appeals affirmed. Snow v. England, 03A05-0602-CV-56 (Ind. Ct. App. June 21, 2006) (unpublished), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the decision of the Court of Appeals, and has assumed jurisdiction over the appeal.

The unpublished Court of Appeals opinion is unavailable online--it was issued in June, before the NFP's began appearing for the world to see (easily).

At 9:45, the court is hearing a direct appeal in an LWOP case: Rohr v. State. Here's the court's summary:

Rohr was convicted of the Battery Resulting in the Death of a Minor in the death of S.M., a five-year-old child. A jury sentenced Rohr to life imprisonment without the possibility of parole. Rohr appeals his conviction and sentence to the Indiana Supreme Court pursuant to Indiana Appellate Rule 4(A)(1)(a).

(I think it would be helpful if the court would put at least some summary of the issues presented in their summaries. Perhaps it sometimes does.)

The links, once they become live, will be on this page.

The Sunday Pickle

2006-09-17T21:50:00.000-04:00

The Spirit of Pigcinnati

From along my travels.

Tech Saturday a Little Early: Media Player Classic (NOT MS)

2006-09-14T09:55:00.000-04:00

I'm going to be gone for the next few days. Back to the east to celebrate my grandmother's 99th birthday. I should be back in time for a Sunday Pickle, though.

In the meantime, I recently came across a completely portable little player that works as a great substitute for the bloated RealPlayer "required" to watch Indiana appellate oral arguments: Media Player Classic. It's a single executable file, no installation required, and it doesn't write home to mother. Just pop it into Program Files or wherever and run it. (I have it on my USB stick.) You can download it here at SourceForge. The file is about 5 megabytes.

To watch the oral arguments--or anything else--simply drag the link to the argument onto the player's screen. It will open in a trice. (Another little Windows trick I picked up recently was how to drag links to applications: just drag anything to the target application location on the taskbar and in a second the application will pop up on the screen permitting you to then dump the link into it. No messing or fussing with trying to keep a screen on top or visible. Maybe the world has always known about this trick, but it was amazing news to me.)

MediaPlayer Classic also has a primitive, but effective favorites list--and when saving a favorite, such as an oral argument, you can also save to a particular place so that the broadcast will open to that spot.

The SourceForge blurb says that RealPlayer has to be installed for Media Player Classic to be able to play RealPlayer files. I haven't uninstalled RealPlayer yet, so I don't know about that.

Here's the link to the page with the most recent Indiana oral arguments with active links. Pick an argument and try it out.

Otis Freshwater v. State: Clean-up Time for the Indiana Supreme Court

2006-09-13T19:26:00.000-04:00

Every so often the Indiana Supreme Court cleans up a mess. There are many such messes and golly-gosh I wish they would do this more often. I think they got around to it in this case, because it involves an habitual offender enhancement and is therefore a more serious case in at least that one sense. One would think that the fact of a mess would be serious enough to take whatever comes along.

My candidate for the No. 1 mess that needs cleaning up is the outrageous practice by both the Supreme Court and the Court of Appeals of reversing convictions and then ordering the entry of lesser included offenses that were not charged and for which neither party requested an instruction.

What the Supreme Court cleaned up in Freshwater v. State, Supreme Court No. 27S02-0606-CR-240 (Ind. September 13, 2006) is a corner of the law of burglary. There is not much disagreement that to commit burglary, one must break in with the intent to commit a specific felony, e.g., theft. But there are a number of cases from the Court of Appeals that say one can infer the intent to commit a felony actually from the manner of breaking in itself or from other, otherwise negligble circumstances.

Justice Sullivan's Freshwater opinion today does those cases in:

There is language in several opinions of the Court of Appeals to the effect that a lesser quantum of evidence than that demanded by Justice and Gebhart will satisfy the intent to commit a felony element in a burglary case. For example, in Gray v. State, the Court of Appeals said that "[t]he intent to commit a felony can be inferred from the time, force, and manner of entry if there is no evidence that the entry was made with some lawful intent." 797 N.E.2d 333, 336 (Ind. Ct. App. 2003). Gentry v. State has similar language. 835 N.E.2d 569, 573 (Ind. Ct. App. 2005). As should be clear from the foregoing discussion, this is not a correct statement of the law. Justice and Gebhart dictate that in order to sustain a burglary charge, the State must prove a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.

Slip op. at 5. (Footnote omitted). The Supreme Court doesn't often get much harsher with the Court of Appeals than "this is not a correct statement of the law."

So we know that Gray's and Gentry's convictions were affirmed based on misstatements of the law. (Gentry was an habitual offender case as well--Gentry got an extra 20 years for the HO enhancement of his now-suspect burglary conviction.) How many others are there, I wonder. And can Gray, Gentry, and any others use Freshwater as the basis for post-conviction or habeas relief?

In one respect, this case is not very different from Wright v. State, 658 N.E.2d 563 (Ind. 1995) (no link; too old), which cleaned up the truly awful mess that had developed over the years with respect to when instructions on lesser included offenses should be given. As in Wright, the Supreme Court is merely saying what the law has always been, killing the cats, as it were, that have gotten away. So I'd say Gray, Gentry, and any others have a pretty good post-conviction beef.

In another respect, Freshwater is different from Wright: Freshwater does not come close to Wright in the number of cases explicitly overruled or disapproved. Wright still holds the record, I believe: the court overruled 16 of its own cases and disapproved 6 Court of Appeals opinions. Wright also might be the most-cited case since 1995 at 75 Indiana cases. Lesser included offense instructions come up all the time.

I do have a small question: Had it occurred to no one that to say the intent to commit a felony may be inferred from the absence of evidence that a lawful intent accompanied the breaking-in is a facial Sandstrom error--shifting the burden of proof to defendants with respect to an element?

But bully for the Indiana Supreme Court. Chapeau. More, please.

_________________________________

Since writing the above, I have discovered that the offensive language in Gray and Gentry, "no evidence that the entry was made with some lawful intent" appears in 14 cases going back to Perdue v. State, 398 N.E.2d 1290, 1293 (Ind. Ct. App. 1979). Five are Indiana Supreme Court cases.

So Freshwater is not so far behind Wright, if you count the cases Freshwater impliedly overrules or disapproves. (Of course, I have no clue whether Wright impliedly did in another batch of cases unmentioned in the opinion.)

Perdue from the Court of Appeals, by the way, is not the original offender. Perdue relies on a 1975 Supreme Court case, Lisenko v. State, 355 N.E.2d 841 (Ind. 1976). Lisenko, interestingly, overruled Crawford v. State, 241 N.E.2d 795 (Ind. 1968), which reversed a burglary conviction for just about the same reason as Freshwater. So with Freshwater, the circle has come back around to Crawford.

I was, then, certainly wrong above about the other difference between Wright and Freshwater. It is apparently not the case that Freshwater merely presents a restatement of what the law has always been.

I may also be wrong about the number of cases Freshwater does in. One would have to track down the cases--and their progeny--in the Lisenko tree. That could be a whole lot of cases.

Also, it would seem that the Supreme Court should not have scolded the Court of Appeals. The offensive analysis comes originally from Supreme Court cases. It's not something that the Court of Appeals simply invented, although it is also true that the Supreme Court has not used the analysis in 20 years now.

A final comment about the circle's having come 'round: Justice DeBruler concurred in the result in Crawford, saying: "I believe that it is sufficient to state that as a matter of law, this Court determines that the mere unauthorized entry of a person into a building containing articles which could be easily carried away is insufficient to prove intent to steal those articles." 241 N.E.2d at 798 (DeBruler J., concurring in the judgment.) There were two dissents in Crawford, so Justice DeBruler's vote and statement, in what must have been one of his first cases, controlled the outcome and the holding. He dissented in Lisenko, a 3-2 decision. I don't think that Freshwater says any more or less than what Justice DeBruler's Crawford concurrence said almost 40 years ago.

The more things change . . .

Frivolous Sentencing Appeals in the 7th: Maybe It Just Depends on the Panel

2006-09-12T00:19:00.000-04:00

Sentencing Law & Policy's own Doug B. is getting a little aggravated with our very own 7th Circuit. See this post from Doug about Judge Posner's complaint that reasonableness review of sentences within the Guidelines are frivolous. The complaints--both Judge Posner's and Doug's--caught my interest, because of United States v. Wasz, a 7th Circuit sentencing case from June about a mother and son theft ring.

It's a great story, set out in fine detail. But the mother got a sentence at the low end of the Guidelines; the son got a below-Guideline sentence despite his greater criminal history. And they were up there arguing about two levels plus or minus, depending on how the loss was calculated. And their method of calculating the loss makes no sense: cost to the victims, who were large retail chains like Home Depot. (The Waszes later sold the stuff on eBay.)

Now perhaps the discussion of how to value the loss was instructive. But I thought this a legitimate candidate for a frivolous appeal. I guess if Judge Posner had been on the Wasz panel, the appeal might not have been a mere candidate.

"Wasz," by the way, in Polish (and in Russian) means "your" (plural). The "Yours" might more appropriately have been named the "Ours." Just a switch of a letter: "Nasz."

Blakely & Retroactivity: Johnson from the Colorado Supreme Court

2006-09-11T19:17:00.000-04:00

As linked on Sentencing Law & Policy here, the Colorado Supreme Court has come out with an opinion in People v. Johnson, its preview of Burton, the U.S. Supreme Court case that will deal with Blakely retroactivity. (Link to the Burton opening merits brief also via SLP here.)

I don't know what the law is / was in Colorado, but there is one part of the Colorado Supreme Court's analysis that simply ought / would not fly in Indiana. Recall that there is an initial cut between substantive and procedural rules. New substantive consitutional rules get full retroactive application, including cases on collateral review. If a new rule is procedural, then Teague rears its ugly head. Here's the snippet from Johnson that gets the court past Blakely as announcing a new substantive rule:

In Summerlin, the United States Supreme Court described the difference between substantive and procedural rules. Substantive rules, the Court explained, “alter[] the range of conduct or the class of persons that the law punishes." Summerlin, 542 U.S. at 353. Procedural rules “regulate only the manner of determining the defendant’s culpability." Id. (emphasis in original). Summerlin addressed the retroactivity of Ring v. Arizona, 536 U.S. 584 (2002), which applied Apprendi in holding that a jury, and not a judge, must find the existence of aggravating circumstances that warrant the death penalty. Observing that Ring "did not alter the range of conduct Arizona law subjected to the death penalty" but rather “altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death," the Summerlin Court held that rules like the one announced in Ring "are prototypical procedural rules." Summerlin, 542 U.S. at 353.

Summerlin compels the conclusion that Blakely announced a procedural rule. Like Ring, Blakely did not alter the range of conduct that may be punished, but instead regulated the manner in which such conduct was to be proved. See Summerlin, 542 U.S. at 353.

Slip op. at 8-9.

But if Blakely announced something new at all--and I hold with Mike Limrick that Blakely changed nothing, except perhaps the unwillingness of judges outside of Kansas to recognize Apprendi's clear import--it certainly did alter the range of conduct punishable by Indiana. And it did so drastically. Because "sentencing factors" are to be treated as traditional elements, the whole standard smorgasbord of non-statutory aggravating factors became off-limits in Indiana after Blakely. The use of non-statutory aggravators, when treated as elements, is nothing more than the prohibited judicial creation of common law crimes.

In the Blakely litigation in Indiana, this aspect of Blakely has arisen only once, as far as I know. It was in a brief interchange in the Smylie oral argument. Justice Sullivan asked if Blakely forbids the use of non-statutory aggravators at all. The answer was, "Yes." The issue and the argument then went walkabout--beyond Indiana apparently.

I have no idea why this aspect of Blakely never seems to have been raised in the cases. In case after case, the Court of Appeals finds some reason that the use of a non-statutory aggravator at sentencing was just fine. But it should not matter what a defendant admited or waived for Blakely purposes, if the admission or waiver was not related to a statutory aggravator.

Not quite a random example of what I mean comes in this less than edifying snippet from Frye v. State, about which I posted in a different context here:

The State filed notice of the aggravating factors they would be presenting for consideration by the trial court in sentencing Frye. The aggravating factors submitted by the State include Frye's criminal or delinquent activity, the nature and circumstances of the crime committed, Frye's character and a violation of a no contact order as well as the high risk that Frye will commit another crime, and that Frye was in need of correctional and rehabilitative treatment that can be best provided at a penal facility.

During sentencing the trial court referred to two aggravating factors not specifically mentioned in the State's notice. One was that there were two guns used by Frye, and that the place of occurance was, in fact, Royal's home.

Two reasons weigh heavily against Frye's argument on this issue. One is that he specifically waived a jury that would have considered his Blakely rights. The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the court's record, whether in the form of a written waiver or a colloquy in open court. Jones v. State, 810 N.E.2d 777, 779 (Ind. Ct. App. 2004). After an explanation by the trial judge, Frye expressly, on the record, waived a jury.

The other is that this court has observed that Blakely need not be read to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence. Huffman v. State, 825 N.E.2d 1274, 1276 (Ind. Ct. App. 2005).

(Footnote omitted).

The one thing that Frye seems to have gotten right is that Huffman merely made the observation: "we do not read Blakely to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence." This unsupported "observation," written by Judge Sullivan, who is usually quite careful, would seem to fly in the face of the now familiar language from Apprendi and Blakely--going all the way back to Jones, actually--laid out as a rule: "[a]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. And the Huffman observation seems quite hollow indeed in light of the following from Blakely:

This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).

(Footnote omitted).

But I digress. The bold portions in the excerpt from Frye above set out six non-statutory aggravators--and two of them were not charged--so the Huffman digression was not entirely digressive. The use of these non-statutory aggravating circumstances, regardless of waiver, is simply not permissible, because to use them is, after Apprendi, Blakely, and Recuenco, to create common law crimes with the bolded facts as judicially created elements.

The use as aggravators of these facts and others like them was permissible--and usual--before Blakely. After Blakely, and for crimes committed before April 25, 2005, when the General Assembly unanimously adopted Indiana's Blakely statutory fix, these sentencing factors / elements no longer could increase punishment.

And after Recuenco, there cannot be much doubt about this aspect of Blakely: sentencing factors are to be treated as traditional elements. From Recuenco:

Our decision in Apprendi makes clear that "[a]ny possible distinction between an 'element' of a felony offense and a 'sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding." 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

The only dodge I can think of is some distinction between treating elements and sentencing factors the same for Sixth, but not Fourteenth Amendment purposes. That would be an artful dodge indeed.

I do not know what it might portend for Burton, but it is very interesting to me that the snippet from Recuenco above relies entirely on Apprendi. That makes some sense, because the Court is saying that Recuenco's case is indistinguishable from Neder. But the implication would seem to be that Blakely changed nothing of the Apprendi analysis.

Given the uniformity with which all the courts have rejected retroactivity claims for Blakely, are we about to have another Blakely moment with Burton? That is, will the SCOTUS decision in Burton do what Blakely at least arguably did: explain the obvious to the nation's judges, who have all gotten it "wrong"? (And don't forget that Burton involves consecutive sentences too.)

And a final question: might Blakely retroactivity, to the extent it depends on Blakely having announced a new substantive rule, depend upon the law of the jurisdiction in which retroactivity is sought?

The Sunday Pickle

2006-09-10T00:25:00.000-04:00

The Cat Piano

The Proceedings of the Athanasius Kircher Society

Tech Saturday: 7th Circuit Oral Argument Feed

2006-09-10T00:04:00.000-04:00

Paste this link into your feed reader or podcast software and grab the 7th making the lawyers dance. (I actually had a nightmare before my one and only oral argument in the 7th: Judge Posner with a six-shooter leaning out over the bench and shooting at my feet. It turned out that Judge Posner was not on the panel; and the argument turned into a really interesting and enjoyable conversation almost exclusively with Judge Wood.)

And here's the 7th's oral argument page for seeking out a particular argument by party or case number.

It would be nice if the Indiana appellate court site had a feed--seems to have everything else, even if it is in PDF these days.

What a Week for Oral Arguments

2006-09-09T23:55:00.000-04:00

It has has been quite a week for oral arguments.

On the Blakely / Smiley front, there was the Indiana Supreme Court oral argument in Anglemyer. (Direct RealPlayer link.)
There was also the 7th Circuit oral argument in the Indiana legislative prayer case, Hinrichs v. Bosma, Case No. 05-4604. (Direct MP3 link.) And I just discovered this tonight: links to all the briefs and even the short appendix may be had by pasting this link into your feed reader. (I use Forumzilla in Thunderbird, so everything just sits there until I clean it out. The items don't disappear or get cleaned out just because they're "read." That is especially nice to keep a list of opinions delivered by RSS.)

That's more than an hour's worth of worthwhile listening.

Marcia Oddi covered the Anglemyer argument in these posts: here and here, with links to the briefs in the second of the two. And Doug Berman on Sentencing Law & Policy links to Marcia here. National attention for Anglemyer and Marcia. My own take on the argument will follow. (Needless to say, the Indiana Supreme Court is not happy about it and the Court of Appeals having become sentencing courts after Indiana's awful Blakely fix where just about anything goes in the trial courts.)

I have something like 100 items sitting in my Thunderbird blog folder. Lots to do. I really want to finish a post I started long ago on Shouse v. State, a Court of Appeals case that appears ordinary enough, but was an entrance into the fascinating world of the use and misuse of precedent by the Indiana appellate courts. There are 17 cases I have to go read first.

And then there's Armstrong, from the Indiana Supreme Court, in which it turns out that an "accident" is only anything "undesirable." More specifically, someone intentionally leaps out of your car and you've been involved in an "accident."

Or there's the opening merits brief (link to PDF file in this SLP post) in Burton, the Blakely retroactivity case in the U.S. Supreme Court. Fascinating two-pronged argument: Blakely either changed nothing after Apprendi, or it's so new it's a watershed rule deserving full retroactive application, not just back to Apprendi. How's that for backing SCOTUS up against a wall? And why not a word about the procedural successive habeas problem?

And then there are all the implications and fun to be had with the appearance of the Court of Appeals unpublished decisions. Besides the categories of "Why wasn't this published?" and "There's a reason this isn't published," this could turn out to be a feast for habeas mavens.

All this great stuff to work with.

Combs: Blakely Constrains Appellate Review?

2006-08-04T15:40:00.000-04:00

Keith Combs v. State (Ind. Ct. App. August 4, 2006), out today, offers an interesting Blakely wrinkle. Over a dissent by Judge Vaidik, Judges Mathias and Robb conclude that appellate review of sentences under Appellate Rule 7(B) is subject to Blakely. I think Judge Vaidik has the better of this particular argument; and if the State seeks transfer to the Indiana Supreme Court, my guess is it will get it.

There is no direct Blakely challenge apparent in the case. The appeal of the sentence appears to request pure appellate review / revision only.

The majority says something quite interesting going into its review of Combs' sentence:

We believe that as a matter of fundamental fairness and under the pertinent caselaw as it currently stands, even appellate review of sentences under Appellate Rule 7(B) is constrained by Blakely. See Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005) (“Or we could alterthe sentences ourselves within the bounds of Blakely using our review and revise power.”).

I do not believe anything in Williams says that Blakely acts as a restraint on independent appellate review of a sentence that is unobjectionable on statutory or constitutional grounds. The sentence imposed by the trial court in Williams did violate Blakely, and so the Supreme Court, in figuring out what sentence to impose itself, felt constrained by Blakely--so it imposed consecutive sentences, avoiding Blakely altogether, giving Williams a whole half year benefit for his appeal.

This is pretty much the point Judge Vaidik makes in footnote 14 of her dissent:

Had Combs’ sentence not been statutorily proper or had his sentence violated Blakely (such as if all of the aggravators were improper under Blakely), we also could have exercised our constitutional authority to revise his sentence rather than remand to the trial court. See Neff v. State,849 N.E.2d 556, 562 (Ind. 2006); Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005). In this instance only, the reviews would be co-extensive.

(Emphasis in the original.) (I think only one aggravator need violate Blakely before one is at least into harmless error analysis and,therefore, probably the option of appellate resentencing subject to Blakely.)

That this option exists was at least called into question by Justice Boehm's dissent almost 10 years ago now in a death penalty case, Lambert v. State, 675 N.E.2d 1060 (Ind. 1996). Justice Boehm raised the very interesting question whether the power to review and revise sentences extends to invalid sentences. Here is a snippet from his dissent:

In this case the trial court sentenced the defendant after procedural error that requires setting that sentence aside. . . . Article VII, § 4 of the Constitution of our State gives this Court "the power . . . to review and revise the sentence imposed" in any criminal appeal. This provision, in my view, doesnot suggest that we should initiate sentences. Rather it presupposes a validly imposed sentence that we may review and revise.

Id. at 1066-67 (Boehm, J., dissenting). Justice Boehm lost the debate in Lambert; and so today we have cases like Williams, where despite the Blakely errors found, the appellate courts just do theresentencing themselves.

But to get back to Combs. I do wonder what the Combs majority has in mind when it says that "fundamental fairness" requires the application of Blakely to independent appellate review of otherwise unobjectionable sentences. In sentencing Combs, the trial court did consider any number of aggravators offensive to Blakely. So maybe the court merely meant that it was giving Combs a Blakely appeal despite the failure to raise it in those terms.

It's an interesting idea that I wish the court had spun out so we wouldn't have to guess. It's especially unfortunate we don't have an explication in light of the meat of Judge Vaidik's dissent which, unassailably in my view, says:

Blakely is concerned with the enhancement of a defendant’s sentence based on facts not proven beyond a reasonable doubt. 542 U.S. 296, 303-04 (2004). Under Appellate Rule 7(B), Indiana appellate courts may not increase a defendant’s sentence. See Ind. Appellate Rule 7(A) (“A defendant in a Criminal Appeal may appeal the defendant’s sentence.”) (emphasis added). As such, Appellate Rule 7(B) does not implicate Blakely. Therefore, when analyzing the nature of the offense and the character of the offender under Appellate Rule 7(B), appellate courts may rely upon facts that were not proven beyond a reasonable doubt because there is simply no danger to the defendant that his sentence will be increased. Indeed, Appellate Rule 7(B) is used as a vehicle to reduce a defendant’s sentence.

Slip op. at 21 (Vaidik, J., dissenting).

Keep an eye on Marcia Oddi's transfer lists at the Indiana LawBlog. I'm going off to look at today's now.

Frye: Controlling Precedent:--Do We Care?

2006-08-03T10:09:00.000-04:00

Surely one meaning of "wrong" when speaking of appellate decisions has to be that a decision is contrary to controlling precedent. (And I still don't know how the Missouri Supreme Court had the chutzpah to buck the U.S. Supreme Court in Roper. And who'd have thought that SCOTUS would affirm?!!?)

Back on July 18th, the Court of Appeals came out with Frye v. State. It's a Crawford case decided a month after the U.S. Supreme Court, in Hammon v. Indiana--the companion case to Davis v. Washington--, reversed the Indiana Supreme Court's decision in Hammon v. State.

The Court of Appeals does something in Frye that I don't think I've ever seen before: it goes through the Indiana Supreme Court's Hammon analysis, using it for precisely the proposition that SCOTUS rejected and reversed on 29 days previously. And I do not know whether it makes it better or worse that the Court of Appeals drops a footnote saying that it is aware of the SCOTUS decision, but the testimony at issue, it thinks, is non-testimonial within the meaning of the SCOTUS decision.

You really have to see this to believe it:

Frye argues that the case of Crawford v. Washington, 541 U.S. 16 (2004), prevents the admission of certain hearsay evidence if it is testimonial because it violates the confrontation clause of the federal Constitution. A testimonial statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings. Wallace v. State, 836 N.E. 2d 985, 995 (Ind. Ct. App. 2005). In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement testimonial. Hammon, 829 N.E.2d at 456. The Indiana Supreme Court in Hammon, quotes from the Court of Appeals opinion of the same case, Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004):

[T]hat the common denominator underlying the Supreme Court’s [the Crawford opinion] discussion of what constitutes a testimonial statement is the official and formal quality of such a statement. Accordingly, the court reasoned that the Supreme Court limited its holding in Crawford to police interrogation, which carries with it a connotation of an at least slightly adversarial setting. The Court of Appeals held that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not testimonial. This conclusion has been cited for the proposition that preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation. Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police interrogation as that term is used in Crawford.

(Internal citations and quotation marks omitted.)

We are of the opinion that the foregoing quote is equally applicable to the fact situation in this appeal and that Chastain’s statement to Officer Harper was not testimonial.

Slip op. at 6-7.

Think of what the correct citation to the Indiana Supreme Court's Hammon should look like:

Hammon v. State . . . rev'd on same grounds by Hammon v. Indiana . . . .

The online docket for Frye provides, perhaps, some basis to infer an explanation. The briefing in Frye was completed in March. One might guess that the Court of Appeals knew that SCOTUS had granted cert. in Hammon, wrote an opinion anyway, and then sat on it until the SCOTUS decision. The path of least work then, after SCOTUS reversed, was simply to drop the footnote to say that the SCOTUS decision did not make any difference in the case.

Maybe it did and maybe it didn't. The facts are written to fit with the Indiana Supreme Court's (rejected) Hammon analysis, which practically equates an excited utterance with non-testimonial statements:

Officer Harper testified that a startling event occurred when an armed Frye invaded Royal’s residence, that Chastain was distraught, crying, and hysterical, and her statement related to the event, which was occurring or had occurred immediately beforehand.

Slip op. at 5. To apply the SCOTUS Hammon analysis, one would have to know what Chastain actually said. Was she asking for help or telling Officer Harper what happened? Or both?

How very strange.

Recuenco: The Bad News & The Good News

2006-06-26T12:58:00.000-04:00

Recuenco is here . . . here. The Court holds 7-2 that Blakely error is subject to Chapman harmless error analysis. That's the bad news that I have a hard time understanding for all the reasons set out in Justice Ginsburg's quite detailed and powerful dissent.

The really good news is the forcefulness with which Justice Thomas's opinion restates that sentencing factors, other than the fact of a prior conviction, are to be treated just like traditional elements. An issue that has yet to be litigated in Indiana, at least, as far as I know, is whether the use of sentencing factors not specifically enumerated by statute, amounts to the forbidden creation of common law crimes. I think Recuenco strongly suggests that it is--or was, under the old sentencing regime.

After reading theThomas and Ginsburg opinions, I wonder whether Recuenco raised the correct issue on appeal. Blakely's Sixth Amendment aspect may be subject to harmless error analysis--obviously, after Recuenco it is. Under the lens of a Sixth Amendment jury claim, the facts of Recuenco may indeed be indistinguishable from Neder, as Justice Thomas says.

But what about Blakely's Fifth / Fourteenth Amendment notice aspect? It is absolutely clear that Recuenco, unlike Neder, had no notice in any form, and certainly not in the charge, that he would be subject to the mandatory firearm enhancement. (Again, see Justice Ginsburg's amazingly complete and compelling rendition of the facts.) Would the result be different if someone in Recuenco's position claimed lack of notice in violation of the Due Process Clause? If sentencing factors are to be treated exactly the same as traditional elements, I think it would have to be.

I do have a question about Justice Ginsburg's dissent that maybe someone can answer. She says that Recuenco's enhanced sentence was obtained in violation of the Fifth and Sixth Amendments made applicable to the States by the Fourteenth Amendment. Which provision of the Fifth Amendment does she have in mind? The Fourteenth Amendment has its own Due Process Clause. Here's the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The indictment requirement does not apply to the States. Why does she need the Fifth Amendment at all? Is it because, in fact, there is a hidden double jeopardy claim here: that Recuenco, having been convicted of a lesser offense without the enhancement, was then "convicted" of a greater offense that included the enhancement?

More on Johnson in Colorado & Blakely Retroactivity

2006-06-26T01:42:00.000-04:00

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.

Companion Case Day at the Indiana Supreme Court--Including Big Sentencing News

2006-06-14T16:32:00.000-04:00

After what must have been a busy day yesterday working on the Toll Road case, the Indiana Supreme Court has handed down five opinions today, depending on how you count.

Three sentencing opinions by Justice Rucker are companion cases. The court finally does in the numerous decisions of the Court of Appeals blocking appeals of sentences where there was a plea agreement calling for anything but open sentencing. (Tumulty (Ind. 1996) rears its ugly head yet again--the case that (finally) decided that one may not appeal a conviction from a guilty plea--although, as we know from Collins, one must appeal a sentence and not wait for post-conviction proceedings.)

Two opinions by Justice Dickson are companion cases saying that that municipalities do not have immunity from being sued over accidents resulting from high-speed chases.

Here are the links:

Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso
45S03-0505-CV-223
45D01-0204-CT-101
06/14/06

City of Indianapolis and Indianapolis Police Department v. Richard Garman
49S00-0602-CV-55
49D10-0006-CT-852
06/14/06

Roger D. Childress v. State of Indiana and Gary L. Carroll v. State of Indiana
61S01-0510-CR-484 & 61S04-0510-CR-485
61C01-0402-FB-56, 61C01-0303-FB-55, 61C01-0204-FD-59 & 61C01-0306-FC-104
06/14/06

Jerry Reyes v. State of Indiana
49S04-0510-CR-475
49G04-0207-MR-193968
06/14/06

David Weiss v. State of Indiana
17S03-0510-CR-487
17D01-0309-FA-2
06/14/06

(Boy, that was pretty nifty. I never tried just pasting the links from the opinion site over here.)

From a quick read of Justice Rucker's sentencing cases, it is absolutely clear that one may ask the appellate courts to independently review a sentence imposed where a plea agreement left a judge any discretion. What is not clear--and I need to read the cases more carefully--is whether one may also raise claims of sentencing error. They're not the same thing.

Under the new sentencing regime, however, sentencing error hardly matters. See this post and Judge Barnes' opinion in Anglemyer.

The blog topics mount.

Oral Argument in Colorado: Johnson & Blakely Retroactivity

2006-06-14T10:17:00.000-04:00

At 10:00 a.m. MDT, the Colorado Supreme Court is going to hear oral argument in Johnson, the case in which the Colorado Court of Appeals decided that Blakely is retroactive to Apprendi.

The Colorado Supreme Court oral argument site is here. I do not know if they do live webcasts. The links for yesterday's oral arguments at the court are already up, so even if they don't, it appears the archive will be available quickly.

Toll Road Case Oral Argument (Updated)

2006-06-13T16:04:00.000-04:00

I missed a good bit of the argument. In what I did see, however, the justices did not seem very sympathetic to the folks challenging the sale of the Toll Road.

Here is a direct link to the argument. (RealPlayer required.) The archived version is not yet available. Sometimes it takes some days. I hope they will be quick about getting it up in this case.

[Update 5:15pm: The link above is live, and has been since 3:00 p.m., as Marcia Oddi at the Indiana Law Blog has written in a comment below. I guess I couldn't get on at 4:00 p.m., not because the archive wasn't there, but because I was in line behind the rest of the world.]

Toll Road Case: Supreme Court Oral Argument at 1:30pm EDT

2006-06-13T12:24:00.000-04:00

If money is measure of importance, then the Toll Road Case is the most important case to come before the Indiana courts in living memory. As Carl Sagan would have said, "Billions and billions."

Oral argument is set for 1:30pm--an hour from now. With RealPlayer, you should be able to watch the argument live via the link at this site. The case name is Steve Bonney v. Indiana Finance Authority. The link to the argument is grayed out at the moment. I am assuming it will become active shortly before the argument. (I have my autorefresh set for the page.)

For truly fabulous coverage of the last minute maneuvering in the case--Justice Dickson's recusal and the appellants' request in light of the recusal for a remand to the Court of Appeals--go see the Indiana Law Blog. The most recent post is here.

I was going to post again about Gutermuth. But there are much bigger fish to fry.

Gutermuth: The Blakely WayBack Machine

2006-06-08T04:18:00.000-04:00

After reading some Burton materials, I was going to offer a brief post on the variety of things the lawyering and judging crews mean when they say a case is "retroactive." And then Judges Crone, Friedlander, and May of the Indiana Court of Appeals throw out a timely case with a substantial wrinkle in the typology. The case is Gutermuth v. State (Ind. Ct. App. June 7, 2006). It's a 34-page opus. And an important one. It could be hugely important, actually.

Here's the question: Gutermuth was sentenced in 1997. He pled guilty to three counts of child molesting. That's three years before Apprendi and nine years before Blakely. Does he get the benefit of Blakely?

Here's the answer: Yes.

Here's the question: How?

Three Kinds of Retroactivity

1. There is Griffith v. Kentucky "retroactivity." When a new case is decided, any case pending on direct review at the time gets the analysis of the new case. In the case of criminal appeals, this is pretty much a one-way door. If the law has changed for the worse while their case is pending on direct appeal, a criminal appellant is, in most circumstances that I can thinks of, not going to be saddled with the new worse law. (Which is why it is, to this day, so scandalous that Teague was Teagued.) Gutermuth involves quite a twist on Griffith "retroactivity."

2. Then there is the kind of "retroactivity" that seems to be at issue in Burton. Burton's direct appeal became final between Apprendi and Blakely. Burton's main argument, if I am not mischaracterizing it, is that Blakely changed nothing, and therefore he should get the benefit of Apprendi. This second kind of "retroactivity" is not retroactivity at all, in fact. Call it "As our precedents make clear" "retroactivity."

Because Burton is a habeas appeal under the AEDPA, it could be hilarious, however gratifying, to see the Court say that any pre-Blakely application of Apprendi not in conformance with Blakely was unreasonable. Let's see. That would include everyone for about four years. Except Kansas, of course.

3. Then there is Teague retroactivity, which is the only kind, it seems to me, that deserves the name. Every case, however final, rises from the dead to live again in the light of the new case. Call it "Lazarus Retroactivity." I thought that Winship was the last case the Supreme Court gave full retroactivity to. But I believe I saw there was one in the 80's. I do not believe there has been one since Teague was decided in 1989.

Some Background on Indiana Bad Practices and Gutermuth

For years, until relatively recently, it was the practice of almost all Indiana trial courts to make a bollocks of guilty plea hearings. The courts would tell defendants that by pleading guilty they were waiving their right to appeal their convictions. The Indiana Supreme Court has said that you may not appeal a conviction from a guilty plea. So this advisement should not have been much of a problem. Any later attack on the conviction simply had to be by way of post-conviction relief.

Unfortunately, the Indiana Supreme Court said quite long ago that even from a guilty plea you may not wait for post-conviction proceedings to attack a sentence. If you want to attack a sentence, it has to be by direct appeal.

But the trial courts did not tell people this. I am not sure why the lawyers involved said nothing--defense or prosecution. It's not as if the law was unclear. But, in any event, there was a bunch of folks who were lead off from their guilty pleas believing there was nothing left to do, because they had not been advised of their right, indeed the necessity, of appealing their sentences.

Gutermuth I and Collins

Having pled guilty in 1997, in 2000, Gutermuth filed for post-conviction relief.

The Court of Appeals affirmed the denial of post-conviction relief in 2003. But the Court of Appeals rejected the State's argument that the sentencing claims had been forfeited because Gutermuth had not appealed them directly after his conviction.

Enter the Indiana Supreme Court in November 2004. The court vacated the Court of Appeals' Gutermuth decision and said that yes, the sentence had to have been appealed directly and could not be attacked in post-conviction proceedings. (The Supreme Court's Gutermuth decision is here . The companion case, Collins, with most of the discussion, is here.)

But that's not the end of the matter. The Supreme Court in both Collins and Gutermuth said that in light of the bad advisements, the two might well be able to pursue what's called here a "belated appeal." A belated appeal, if granted, is just like any other direct appeal.

Gutermuth Reloaded

So, in March of 2005, a little more than 8 months after Blakely, Gutermuth requested and received permission to file a belated appeal. In his appeal, Gutermuth attacked his sentence with Blakely. And yesterday the Court of Appeals said, sure enough, a belated appeal is like any other direct appeal, and Gutermuth got review of his Blakely claims.

To be sure, Judge Crone, writing for the panel, did not sound happy about the result:

At this point, it bears mentioning that those familiar with Indiana’s criminal justice system are aware that there are likely hundreds, if not thousands, of criminal defendants in a situation similar to Gutermuth’s: namely, those who pled guilty and were sentenced prior to both Collins and Blakely and were not advised of their right to challenge their sentence in a direct appeal. Pursuant to Smylie and Griffith, many of those defendants are now entitled to retroactive application of Blakely, and many of them have pursued (or will pursue) a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]” Powell v. State, 574 N.E.2d 331, 334 (Ind. Ct. App. 1991). To put it mildly, the retroactive application of Blakely is likely to “have a highly detrimental effect on the administration of justice.” Id.

Slip op. at 18-19. (Some citations, all footnotes omitted).

The conclusion that Gutermuth gets to raise Blakely claims seemed obvious to me. As I said, belated appeals are just like any old direct appeal.

I was shamed to read in the opinion, however, that two other panels of the Court of Appeals have come to an opposite conclusion in cases that completely escaped my notice. The first is / was Robbins v. State (Ind. Ct. App. 12/28/05). The relevant passage from Robbins appears at page 14 of Gutermuth:

As to whether Robbins’s case was “final” when Blakely was decided, we note that a timely notice of appeal is filed within thirty days after the entry of a final judgment. Ind. Appellate Rule 9(A)(1). While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case.

Interestingly, Judge Friedlander concurred in both Gutermuth and Robbins.

[Correction (6/9/06): Thanks to a reader more alert than I, apparently, it turns out that Judge Friedlander in fact dissented, adhering to his Robbins view and vote. I must have simply imagined seeing a unanimous vote line. This is especially bizarre, because Judge May also wrote an opinion labeled "concurring," but she only concurs in result. More about Gutermuth in the next post.]

The second case, Hull v. State (Ind. Ct. App. 12/30/05), says the same thing as Robbins. There's a long quote from it on page 15 of Gutermuth. Not suprisingly, Judge Baker wrote Robbins and concurred in Hull two days later.

I cannot believe I missed these two. Had I caught them myself, I'd have added them to the sidebar under Blatant Indecencies.

Transfer was not sought in either case, and I really do wonder why. (Both Robbins and Hull had private lawyers. Maybe the families had had enough.) I don't know if there are any similar cases from the nether world of the Court of Appeals unpublished decisions that might be on the Supreme Court's radar.

But really. To take so literally the language "pending on direct review" from Griffith, as well as some other language, and to exclude people who are granted belated appeals after Blakely was decided? The rule is: belated appeals, once granted, are like any other direct appeal. And courts simply don't carve out some days, months, or years of law in deciding direct appeals.

Where was Judge Baker when it was time to take the "prior conviction" exception literally with respect to criminal history? In fact, his rehearing opinion in Bledsoe, way back at the very, very beginning, started the "criminal history exception" to Blakely in Indiana.

Signifying . . .

In the end, Gutermuth got nothing from his Blakely claims. But as Judge Crone rightly pointed out, I think, there are lots of folks out there who weren't told of their right / duty to appeal their sentences.

One obvious dam against any eventual wave of belated appeal requests would be simple denials of permission to file belated appeals.

Anyway, bully for this panel. It disagreed--and properly so--with two other panels. (Thank heavens we don't have "Circuit Precedent.") And Judge Friedlander even publicly disagreed with himself. [Note (6/9/06): see the correction above. Judge Friedlander in fact agreed with himself in a dissent.]

A day of good law as well as considerable irony, if you think about Burton's struggle just to get to Blakely to reach back to Apprendi in 2000.

A Final Question

Is this the earliest sentence to which Blakely has so far been applied?

Burton: Retroactivity on the SCOTUS Menu . . . Yummm.

2006-06-06T02:26:00.000-04:00

The Supreme Court has gone and done it: it's granted cert. in a Blakely retroactivity case. Another one out of Washington, wouldn't you know?

The case is Burton v. Waddington out of the Ninth Circuit. (Sentencing Law & Policy has the cert. brief here. SCOTUSBlog has a brief blurb on the case here.

I have read the cert. petition and the petition in opposition quickly. There is more going on in this case than is almost possible to imagine. First, it is a habeas case. So put on your habeas beanies and put in some fresh batteries to make the propeller go whizzzz.

Second, from what I can tell from the briefs--the cert. petition in particular--the Blakely violation, if any, arises out of the imposition of three consecutive sentences, not out of any single sentence being "exceptional" under Washington law. I could be wrong about that, and maybe someone from Washington will check in with superior knowledge. (There is a reason folks are licensed one state at a time. It's not entirely protectionism of the guild variety.)

So is SCOTUS going to giving us a double whammy: retroactivity and the application of Blakely to consecutive sentences?

Or is it not going to be a retroactivity case at all, as Burton argues: just plain old Apprendi applied "as our precedents make clear"? If so, then Justice O'Connor's worry in Blakely wil have be prescient.

I am not sure I understand what all the fuss about retroactivity is in the case or all the other federal cases to have considered the matter. Am I mistaken, or is it not the rule that a SCOTUS case is not retroactive until the Court says it is? I'll have to look that up . . . for the third or fourth time now.

Because this is a habeas case, the relationship of any decision to state collateral proceedings will require careful analysis. And maybe one result will be, several and even maybe many years from now, a clearer understanding for all of the relationship between state post-conviction proceedings and federal habeas review.

Let me not leave it at vague generalities. Here is a very specific problem that could arise in Indiana. (Golly Gosh, as Justice Sullivan remarked at the beginning of the Smylie oral argument way back when, there's so much, one hardly knows where to begin.) But let's say the Supreme Court says Blakely did announce a new rule. It also says that the new rule gets full retroactivity under the second Teague exception for increased accuracy.

Because of Booker, it could do this without causing the slightest mess in the federal courts--I think. There would, of course, be a tremendous mess in the state courts for the foreseeable future. And you can bet the state courts will come up with whatever they can to limit the damage to final judgments.

But let's say it happens. So I have a client sentenced in, say, the early 90's. I file a successive post-conviction petition based on Burton. Let's say that the Indiana Court of Appeals, which has unreviewable authority to grant or deny permission to file a successive petition--we do Little Fed here, in part, at least--says no.

That would be bad for the state courts, because then, quite quickly, I take my client to federal court and get de novo review of the fed claims undecided by the state courts on the merits.

So let's say the Court of Appeals says yes. I litigate the successive petition. State court post-conviction retroactivity rules are not run by fed law. Indiana happens to do its version of Teague which is not at the moment distinguishable, I think from what SCOTUS does. But presented with Burton, the Indiana Supreme Court would be absolutely free to say that Burton is not retroactive under Indiana's version of Teague. So I lose.

The biggest problem for habeas will be that I did not lose on any federal claim, although the federal claim was lost somewhere in no-man's land.

And I have a strong feeling that if SCOTUS issues a decision in Burton that is potentially beneficial to criminal defendants, a lot of those people and their lawyers are going to find themselves in some version of procedural no-man's land--or limbo.

Different problems arise if the Supreme Court says that Blakely did not not announce a new rule. They are equally staggering, though. If Blakely did not announce a new rule, then we're back to Apprendi. So in Indiana, one simple question will be: do all of the folks going back to Apprendi get to go back?

And there is the issue that I have discussed briefly in previous posts. Even if Blakely is not retroactive in some States for some reasons, the second Teague exception almost certainly should apply to Blakely in Indiana. Before Blakely, there was no standard by which a judge had to find aggravating circumstances to impose an enhanced sentence. At most, the finding of aggravating circumstances simply had to be supported by the record.

After Blakely, aggravating circumstances had to be found beyond a reasonable doubt. That seems to me to be the kind of increased

Without even getting to the habeas aspects, what happens if the Court says Blakely applies to consecutive sentences? (The questions presented do not raise the issue. Why would the Supreme Court grant cert. on the other issues, if it is not prepared to say, "Of course Blakely applies to consecutive sentences"?) I'm not sure that there are anymore pipeline Blakely cases of any sort. Do the folks who lost, like Smylie, get to go back for more? (Smylie is long out, I believe, so he won't be going back. But there are a lot of others less fortunate.)

There is a whole raft of folks, I should think, who did not raise sentencing issues at all, because all they had were consecutive sentencing issues to raise. And they were dead on arrival after Smylie. So if they try to get relief, will or can the Indiana Supreme Court apply its utterly bizarre Blakely procedural rule for the pipeline cases that only folks who challenged their sentence on direct appeal may benefit from Blakely--now Burton?

I guess I shouldn't go too far with Blakely and consecutive sentencing in Burton, because I don't really know that Burton necessarily raises the issue. It sure looks to me like it does though.

So I will start collecting the note cards with the questions. It will be a large stack. Maybe I'll be able to track down some answers.

The Sunday Pickle

2006-06-04T20:34:00.000-04:00

Alexander Hamilton would have loved blogging--because he loved to tell people what to do.

At least that's what Richard Brookehiser of National Review fame had to say in an appearance to plug his new book on C-SPAN 2's Afterwords. (The idea for the book is actually pretty intriguing: What would the Founders say about something like 60 current hot topics? The link to the May 27th interview is here--RealPlayer. C-SPAN 2's BookTV is the best.)

There was another fun fact of sorts from the interview. At the time Aaron Burr killed Hamilton in their 1804 duel, the law was pretty clear just about everywhere that it was murder plain and simple to kill someone in a duel. If so, why were murders by duel never prosecuted? No jury would have convicted, Brookhiser says.

Hmmm. Times have changed. Anecdotally, from the tales of the true trial lawyers I encounter, it seems to me that modern juries will convict anyone of just about anything once the prisoner is in the dock. There have, of course, been some notable, notorious, and very public exceptions. (The best lawyer I know--who also taught me just about everything I know worth knowing about lawyering--said once upon a time that if she were innocent, she'd want a bench trial; if guilty, a jury. I think I agree with her with one proviso: I'd want a bench trial if I could prove my innocence.)

I'm not going to plug Brookhiser's book for him. I haven't read it. But the interview was entertaining. And I will give his blog a link.

I don't post much about blogging itself. But it never occurred to me that blogging is about telling people what to do. I'll have to think about that.

But Alexander Hamilton as blogger. There's a concept. The Federalist Papers as blog posts. Hmmm. I guess we should be grateful that blogging wasn't then on the menu. We might today be talking about the Founding Bloggers.

Which reminds me of what my now-six-year old said a year ago or so when, to his shock, he heard that I didn't have video games when I was growing up: "Why not, Poppa? Didn't you have electricity?"

Recuenco: Convert PDF to HTML and Save Paper: 58 Pages to 8

2006-05-06T20:56:00.000-04:00

Thanks to SCOTUSBlog and Sentencing Law & Policy, I saw that the the transcript of the Recuenco argument has become available. I read some things on a screen, but I really prefer to print things on the unused sides of all the drafts, duds, and bad copies that I seem to generate.

But the Recuenco argument is 58 pages in monotype, double spaced. That's ridiculous.

Recently I just happened to stumble upon a little service Adobe provides: web-based conversion of PDF files to HTML or text files. The PDF transcript is site is here. Just pop the address of the Recuenco transcript (here) into the form box, choose HTML or text, click on a couple of annoying radio buttons, and finally submit the thing. Quite quickly you will have an HTML version of the transcript that runs, without any additional formatting, to 29 pages. Half the original--in quite large type.

If your printer will do two pages to a page--mine will--you're down to 15 pages. And it's still quite readable.

If your printer will do two-sided printing, you're down to 8 pages from almost 60. And it's not in monotype.

A word of caution: my experience so far is that the Adobe service handles documents with footnotes very badly. At least in converting to HTML. I have not tried text conversions--yet.

I was very unhappy when the Indiana appellate courts switched publishing their opinions in HTML to PDF. Very bad for reading quickly, copying and pasting, and printing. Just awful, actually. The web is done in HTML. HTML is the true portable document format: text files with fancy codes tellling machines how to display the text files. PDF may go; text files will live forever.

There's also the relatively expensive option of WordPerfect X3--which I have tried and which imports wordprocessor generated PDF files very well.

If anyone has other solutions to PDF conversion to HTML, text, or even wordprocessor formats, please comment. I'm still looking for something simple that will handle footnotes better than the Adobe service. There is a lot of footnoted PDF out there.

So now to actually go read the argument--after the next installement for my six-year old of The Hooded Hawk Mystery--a very topical Hardy Boy book--all about smuggling illegal aliens from India with a kidnaping thrown in for good measure.

Transfer Woes: Not Judge Robb's Lucky Day.

2006-04-21T15:14:00.000-04:00

The transfer list for this week is interesting. (Available here on the Indiana Law Blog.) Three grants in two published and one unpublished decision of the Court of Appeals.

Judge Robb was the author of all three. The other thing the opinions have in common is that they are all civil cases. I can't recall when I saw three grants of transfer in a week arising from opinions by one judge.

The two published opinions in which transfer has now been granted are:

Lambert v. Lambert (Ind. Ct. App. December 15, 2005) (The effect of imprisonment on child support obligations)

and

City of Carmel v. Steele (Ind. Ct. App. November 8, 2005) (City ordinances and annexation).

The third, unpublished decision is Holcomb v. Walter's Dimmick Petroleum, Inc., Court of Appeals No. 76A04-0410-CV-572 (Ind. Ct. App. November 8, 2005) (mem.). (No reason to include the case numbers with the linkable cases.)

In both Lambert and Holcomb, Judge Bailey concurred with Judge Robb; Judge Friedlander dissented in both. In Steele, Judge Robb was joined by both Chief Judge Kirsch and Judge May.

Looks like Judge Robb was having a tough day on November 8th last year--and another one today. At least in the two published decisions, from what I can see and guess, transfer hasn't been granted to say the cases were correctly decided.

On the other hand, it looks like a pretty good day for Judge Friedlander--two dissents that, it appears, will prevail--and one of them in an unpublished decision.

Feed Links for Indiana Appellate Decisions

2006-04-20T21:27:00.000-04:00

For anyone who wants to get the links to new Indiana Supreme Court and Court of Appeals opinions, try dumping these two links into your feed reader.

Indiana Supreme Court Opinions

Indiana Court of Appeals Opinions

These feeds will just deliver the titles of the opinions with the links to the PDF files. (Let me know if they don't work. They've been reliable for me for a week or so now.)

There's a nifty web site out there called FeedYes at which you can make feeds for sites that have none. (I'm sure the same thing can be done for the Tax Court opinions. I just haven't done it.)

For those using Thunderbird with the RSS reader installed, adding these feeds, you can have a permanent list with links to all of the Indiana appellate decisions--and the list will be viewable either by date or case name. No more need for the courts' archives. (Hmmm . . . Now there's a thought I had not had: create feeds out of the archives as well. Have to give it a try.)

Of course, you can save yourself the muss and fuss, if you want to, simply by grabbing Marcia Oddi's Indiana Law Blog. She doesn't just give you the links, but quotes and commentary as well.

I wouldn't miss the ILB for anything, but I also like having the raw links and case names dumped as they come out into Thunderbird and GreatNews. (GreatNews may be primitive: but it's simple and portable.)

So much for my tech contribution for the day.

Anglemyer: The Post-Blakely Era Has Arrived

2006-04-20T16:45:00.000-04:00

We now know what the Court of Appeals, at least, thinks of the new (since April 25, 2005) advisory sentences: they are essentially unreviewable for trial court error. And that should not be surprising because, as Judge Barnes points out in Anglemyer v. State, Court of Appeals No. 43A05-0510-CR-590 (Ind. Ct. App. April 20, 2006), because trial courts can impose any statutorily authorized sentence for good reason, bad reason, or no reason at all, were an appellate court to reverse for trial court error, the sentencing judge could impose the same sentence all over again for the same good, bad, or no reason.

Recall that Judge Barnes has done some of the best Blakely work, especially in his Freeze opinion from last May, where he at least pushed the Blakely ball along to the level of Chapman harmless error analysis. (I think Blakely error is structural, but whatever it is or should be, it is not subject to state harmless error analysis--or even worse, the "with confidence" standard, to which Judge Barnes objected in his concurring opinion in Davis last October. See this previous post about Freeze.)

Since any standards that would contribute to uniformity of sentences has been removed from the sentencing statutes, preserving some degree of uniformity is going to be the job of the appellate courts. ("Indeed, the extensive discretion afforded to trial courts under the new sentencing system will make even more imperative our review of sentences pursuant to Indiana Appellate Rule 7(B)." Slip op. at 8.)

Judge Barnes clearly does not think the current state of affairs is a fine thing. Here is his footnote 4:

In her dissenting opinion in Blakely, Justice O’Connor predicted this result and observed, “The ‘effect’ of today’s decision will be greater judicial discretion and less uniformity in sentencing.” Blakely, 542 U.S. at 314 (O’Connor, J., dissenting). She also urged that the practical consequences of the decision might be “disastrous.” Id. at 314. Justice O’Connor appears to have been correct in both observations.

So all that's left is raw appellate review of sentences under Indiana Appellate Rule 7(B). To facilitate that review, Judge Barnes encourages trial judges to make detailed sentencing statements. But at least for the time being, until the Indiana Supreme Court weighs in on the new regime, if I were a reversal-averse trial judge, I'd keep mum.

It will be interesting to see what the Supreme Court has to say--I can't imagine it being much different. And the appellate courts have to be careful, perhaps, not to create a system of appellate review that would be subject to Blakely.

Nerve Rest & Bloglight

2006-03-11T00:06:00.000-05:00

Nerve rest. My great grandmother was a great believer in it. So I tried it. I gave up blogging for four months, because . . . well . . . I could not continue describing what goes on in the Indiana courts and maintain any sort of healthy equanimity.

I thought that perhaps if I stopped writing about the madness, at least I would not have to think about it when contemplating the next blog post. Of course, not to think about it at all, I would have had to stop reading the stuff and thinking about it altogether. I would have had to stop practicing, actually, because I have to read all of the nonsense to keep up.

I suppose there are the Buddhist souls out there, like Doug Berman at Sentencing Law & Policy and,closer to home, Marcia Oddi at the Indiana Law Blog, who have achieved the glorious state of pure curiosity coupled with divine indifference.

Perhaps my grandmother has made it to 98 and some because, as she says, she just wants to see what happens next. (That's really quite something for someone who has lived through two world wars and even remembers being sad on reading in her children's magazine about the death of the Czar, Czarina, and their family.)I'm not one of those Buddhist souls. I can't just say, "Oh, the court decided this today . . . la-di-da."

That's not to say that Doug Berman or Marcia Oddi don't express an occasional edge. And I think they are both brilliant at taking piles of stuff and passing it on with insightful and important context. But neither seems to get really steamed about very much. They're more interested in what's going to happen next.

I get steamed. There is an awful lot about the Indiana courts to get steamed about. Which is not to say that I have let go unnoted--I hope--the occasional outstanding opinion from an Indiana appellate court.

But in criminal and post-conviction appeals, at least, those outstanding opinions are very few in number. (So much could be remedied were the Court of Appeals' judges simply to install the correct boilerplate in their wordprocessors.) It is hard to escape the impression, actually, that they are almost accidental.

Enough of nerve rest. It's time for more nerve. In the absence of sunlight, perhaps bloglight is the best disinfectant.

Budget from the 7th: Why to kill the lawyers first . . . .

2005-11-04T15:37:00.000-05:00

Judge Posner has written a scathing opinoin in Budget Rent-a-Car Systems, Inc. v. Consolidated Equity LLC., No. 05-3579 (7th Cir. November 4, 2005). The opinion denies appellate fees to Budget that the court had granted. Why? Because Budget wanted $4600 in fees for a 4-page jurisdictional memo citing 5 cases, the only thing Budget filed in the case. The memo supposedly took 3.3 hours of parter time and 10.4 hours of associates' time.

The "exorbitant" request for fees and costs, Posner says, amounts to an abuse of process.

The fee request had been granted originally, because Consolidated's appeal was so obviously frivolous. How can it take 14 hours of anyone's time to point out the obvious?

13.7 hours for 4 pages and 5 cases? I've done a bunch of appeals both as appellant and appellee. The rule that seems to work out for me in every but the most unusual case is an hour per page in a brief, excluding the formal stuff numbered with Roman numerals. That's a brief. Motions and memos generally take a lot less.

So grant Budget, liberally, 4 hours of associates' time and a half hour of partner time to review the piece. At the rates mentioned in the opinion, that's about $1,500. Still pretty steep for a four-page memo, it seems to me, but less than a third of what Budget's lawyers requested.

I wonder if Budget is going to ask its lawyers to write off the fees. I wonder if the lawyers are going to offer to write them off. I wonder if Budget is going to do a review of the fees it has paid these lawyers in the past. I wonder if this is going to find its way to Illinois' attorney disciplinary authority.
I forgot to mention that the lawyers wanted another $4,300 for the time spent preparing the fee request. As part of the costs, they tried to get Consolidated to pay the $165 fee to have a lawyer admitted to practice in the 7th.

Shocks my conscience. And I'm a lawyer.

Wilson & Glover: (P^⌐P)?!!?

2005-11-03T00:02:00.000-05:00

The Indiana Supreme Court came out with two spousal privilege cases today: State v. Wilson, No. 49S05-0501-CR-6 (Ind. 11/2/05) and Glover v. State, No. 49S02-0502-CR-56 (Ind. 11/2/05).

Before getting to the (serious) problems with the cases, Wilson finally takes care of an even more awful case, Hilton v. State, 648 N.E.2d 361 (Ind. 1995), in which Justice Selby, in her very first opinion, said that a lawyer who says, "I believe the witness will testify to X" does not make a sufficient offer to prove to preserve anything for appeal. The "I believe" was, according to Justice Selby and a unanimous court, insufficient. Hilton also placed other unreasonable and even silly requirements on offers to prove; and Wilson takes care of those too.

Hilton qualified, actually, for membership among the Blatant Indencies in the sidebar, and not just for its treatment of offers to prove. I've been waiting for its demise, in whole or in part, for 10 years.

Wilson is extraordinary, because it actually invalidates an entire code section because, the court says, the section was a "mistake" when considered together with the purpose of an entire recodification as that purpose was expressed in another section. (The alleged purpose of the recodification was not to change existing law.) The court tries to put the "mistake" off on the Commission on Recodification and its staff. One problem with this at least is that it is impossible to say which section, substance or purpose, is the "mistake," assuming there is one.

If you think about it, Wilson has a great deal in common with Justice Breyer's remedial opinion in Booker. It declares "ineffective" a statute properly passed into law that would not be "ineffective" if properly passed again into law tomorrow.

Glover says, without much ado, that either spouse can waive spousal privilege--which is to say, it pretty effectively does in the privilege. ("We think both the statutory language and a more realistic view of the reasons for this privilege support the conclusion that either spouse may waive the privilege.") That also does in 100 plus years of pretty well-established law, I think. Well, Ok.

At least one problem, though, is that the spousal privilege statute was part of the same recodification of the 1881 Civil Code as the statute at issue in Wilson. In Wilson the court takes the extraordinary step to invalidate a statute, because the statute changed the law when the purpose of the recodification was to not change the law. Then in Glover, the Supreme Court re-interprets a statute to change 100 years of law, even though it has just said in another opinion that it was the express intent of the General Assembly to not do that?

There is an additional problem with Glover. Maybe it is not so much a problem as simply something that ought to be discussed. There is a collision of two pretty well-established rules. On the one hand, priveleges are to be construed narrowly, which Glover says. But Glover also says that the common law rule was that either spouse could prevent the other from testifying. So the spousal privelege statute is in derogation of the common law. Statutes in derogation of the common law are also to be strictly construed and limited, to the extent possible, in their departure from the common law. Nothing in the spousal privilege statute suggests, much less requires, a change in the common law rule that either spouse may prevent the other from testifying.

I am not saying that there might not be a rational way to reach the same results in both Wilson and Glover. But they cannot both be right as written--except, perhaps, to the extent that they are decisions adverse to criminal defendants.

It is truly fascinating how little dissent there is on this court, even when pitching a century of law out with the . I doubt you could pick five lawyers randomly who would agree about the outcome, much less the means of getting there, in either of these cases. And we have five justices appointed by three governors over 15 years.

It would be a pretty interesting experiment, it seems to me, to give five top-notch Indiana lawyers the problems presented by these cases, have each do the research, and then write a hypothetical majority opinion. Then have them swap the opinions and have a vote. I understand that's not how opinions get written, but it might still be instructive, if not illuminating.

I read these cases and feel like the rat who's shocked no matter what door he opens--nuts.

Pinkston: Ryle was wrong . . .

2005-11-01T22:47:00.000-05:00

In a fascinating turn of events, one panel of the Court of Appeals appears to have gotten tired of waiting for the Indiana Supreme Court's transfer decision in Ryle. In Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. 10/31/05), (Robb and Bailey, Friedlander dissenting), the court decides that juvenile adjudications are not prior convictions for Blakely purposes after all.

The docket shows that Pinkston was fully briefed on June 9th. The Supreme Court heard oral argument in Ryle on June 21st. So this panel--or two members of it--either got tired of waiting or decided to contribute to the debate.

The court does, in fact, contribute something new to the debate. In addition to relying on Tighe (9th Cir)and Brown (that case from the crazy, liberal Louisiana Supreme Court), the court brings up two Tennessee cases that eluded me back in June when everyone was Ryle'd up: State v. Chatman, No. 01-0494 (Tenn. Crim App. April 19, 2005) and a case it relies on: State v. Wallace, No. (Tenn. Crim. App. January 28, 2005). (Chatman was decided four days after the Tennessee Supreme Court said in Gomez, over the AG's concession, that Blakely does not apply to Tennessee sentencing. So why the Chatman court had to consider Blakely at all escapes me.)

While deciding an important issue, the court misses another obvious one as well. In imposing an enhanced sentence, the trial court relied on the statutory aggravator that a reduced or suspended sentence would depreciate the seriousness of the crime. Both the Indiana Supreme Court and Court of Appeals have repeatedly said that this particular aggravating circumstance may only be used to justify refusing to mitigate a sentence and may not be used to enhance one. Since nothing in the opinion suggests that the trial court was considering a mitigated sentence, this aggravator was invalid.

The court also makes a bollocks of the opinion in its "Standard of Review" section beginning on page 8. The court purports to review the appropriateness of Pinkston's sentence under Indiana Appellate Rule 7(B). But the error the court finds is constitutional, so the debate should only be about whether Blakely error is structural or subject to harmless error analysis.

Even if Blakely error is subject to harmless error analysis, the error in not submitting the juvenile adjudications to a jury was surely not harmless. There were only three aggravators: the juvenile adjudications, the reduced sentence etc., mentioned just above, and the judicial finding that Pinkston was "in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility." Given the invalidity of the first two aggravators, the third, which had to be "derivative" at least in part of the other two, has to be invalid as well.

Just a word about Judge Friedlander's dissent. He's one of the gang for whom the prior-conviction exception is the "criminal history" exception; and juvenile adjudications are criminal history. Judge Friedlander is surely right that it is not a foregone conclusion that the Supreme Court is going to decide Ryle differently from the way the Court of Appeals did.

In fact, there are really only two reasons--discounting sloth--that I can imagine Ryle is taking so long: either the court doesn't think the case is very important in light of the number of cases involved and the Bookerization of the sentencing statutes last April; or there is one hell of a disagreement among the justices--who almost never like to publicly disagree too much. (I cannot recall when last I saw a scathing dissent from an Indiana justice. There have certainly been enough cases to justify one.)

Pinkston is worth reading in its entirety also because it is the first published opinion, I think, in an appeal from a post-Blakely jury sentencing. There will be more. A fascinating tidbit, by the way, is that the State filed a notice of aggravating circumstances way back at the end of September 2004--almost 6 months before Smylie was decided, 3 weeks before the Court of Appeals said that Blakely was "superficially applicable" in Holden, and while the Indiana AG was swearing up and down, in briefs and public comments, that Blakely did not apply to Indiana sentencing.

Zambrana from the 7th: Say that again . . .

2005-10-31T21:14:00.000-05:00

Here's something I don't think I've ever seen. In United States v. Zambrana, No 04-2311(7th Cir. 10/31/05), the district court suppressed evidence with a pretty extensive order; the government appealed; and the Seventh Circuit sends it back for a more definite suppression order--with a caveat that the parties and the district court shouldn't take the remand as an indication of any inclination on the merits.

The district judge was, apparently, in a prior incarnation, a police officer. The police officer who testified at the suppression hearing apparently taught classes on "pre- and post-stop indicators," that the district judge characterized as courses in "How to avoid the warrant requirement in searching a vehicle."

The Seventh Circuit opinion emphasizes the importance of what a police officer knows from his or her experience. In this case the testifying officer said that folks rarely "play down" their arrest records, as one of the suspects in this case did when asked about it. That seems unlikely to me.

But in any event, if a police officer testifies that X is the case in his experience, is that pretty much the end of the matter? How, in a suppression hearing, without extensive discovery, can any defendant challenge what an officer claims his or her experience has shown?

Maybe the theme for today is (ghostly) transparency, discussed by Doug Berman at SL&P in this post about a per curiam opinion in Eberhart v. United States, No. 04-1538 (U.S. Oct. 31, 2005), reversing the Seventh Circuit on a procedural issue.

I find this case strange.

SCOTUS says "Boo!" to Indiana (and Washington).

2005-10-31T14:22:00.000-05:00

The Supreme Court both tricked and treated Indiana today. The trick: it denied cert. in Smylie. But for all the docket action--and inaction by the Indiana AG--that was probably a foregone conclusion. Jaramillo is set for conference November 10th. (Earlier posts about Jaramillo here, here, here, and here, in reverse chronological order.)

The treat: it granted cert. in Hammon, an Indiana Supreme Court Crawford decision. Hammon's going to be argued together with Davis v. Washington (dissenting opinion here.) The heart of the majority Davis opinion from the Washington Supreme Court is the following:

Under the facts of the present case, McCottry called 911 because of an immediate danger. There is no evidence McCottry sought to "bear witness" in contemplation of legal proceedings. Nonetheless, certain statements in the call could be deemed to be testimonial to the extent they were notconcerned with seeking assistance and protection from peril. However, the information essential to the prosecution of this case was McCottry's initial identification of Davis as her assailant.

. . . .

In this case, the officers arrived four minutes after McCottry's 911 call and observed and documented her fresh injuries with photographs that were introduced into evidence. The portion of McCottry's 911 call that
identified Davis as her assailant was nontestimonial and properly admitted.

This is what Justice Boehm wrote in Hammon that lines up with Davis:

Despite the absence of findings, we think the undisputed facts are sufficient to determine that the initial exchange between Mooney and Amy fell into the category of preliminary investigation in which the officer was essentially attempting to determine whether anything requiring police action had occurred and, if so, what. Officer Mooney, responding to a reported emergency, was principally in the process of accomplishing the preliminary tasks of securing and assessing the scene. Amy’s motivation was to convey basic facts and there is no suggestion that Amy wanted her initial responses to be preserved or otherwise used against her husband at trial. Accordingly, her oral statement was not testimonial.

My guess is that there's going to be a Scalia opinion saying that statements to the police, including 911 calls, are testimonial, period. Crawford was a 7-0 opinion, with Chief Justice Rehnquist writing an opinion concurring in the judgment joined by Justice O'Connor. Having jettisoned Ohio v. Roberts in Crawford, I don't think the Crawford majority--everyone that we know about--is going to go for the attempts by state courts to divine the subjective intents of police officers and complaining, non-appearing witnesses. I think we'll have another actual rule when Davis and Hammon are done.

The Davis docket is here; the Hammon docket is here.

Blakely Retroactivity: Jacobs and Johnson and Jones, Oh My!

2005-10-24T23:09:00.000-04:00

I am off to a long-delayed / awaited post-conviction hearing tomorrow down on the Ohio River. Before leaving, though, I thought I'd get out the word about three blockbuster cases from the Indiana Supreme Court last week. Actually, Jacobs is the lead case, and Johnson and Jones are merely companion cases applying what Jacobs decides. What Jacobs decides is that Ross v. State, 729 N.E.2d 113 (Ind. 2000), which involved interpreting various sentence-enhancing statutes, should be applied retroactively. It should be applied retroactively, because Teague (adopted by the Indiana Supreme Court for state retroactivity analysis) only applies to new rules of criminal procedure. Ross interpreted or re-interpreted what the court concluded were substantive criminal statutes, and so Teague doesn't apply at all.

Here is what what the Indiana Supreme Court said in Jacobs constitutes a substantive rule:

Substantive law, on the other hand, is broadly defined as the law that “declares what conduct is criminal and prescribes the punishment to be imposed for such conduct.” Wayne R. LaFave Substantive Criminal Law §1.2 (2d ed. 2003). In federal habeas, a substantive rule is one that “alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at __, 124 S.Ct. at 2523. This understanding of substantive rules in the habeas context suggests that substantive rules are those that address the criminal significance of the underlying prohibited conduct. The Wisconsin Supreme Court summarized the meaning of substantive rules in In re E.B. by saying that “substantive law is that which declares what acts are crimes and prescribes the punishment therefore.” 330 N.W.2d at 591. See also, In re Shane B, 7 P.3d at 97 (“In the criminal context, substantive law ‘either defines a crime or involves the length or type of punishment.’”)(quoting Lamb v. Kansas Parole Bd., 812 P.2d 761, 764 (Kan. Ct. App. 1991)); State v. Sutherland, 804 P.2d. 970, 977 (Kan. 1991).

In Bousley, the Supreme Court explained the distinction between substantive and procedural rules in light of the principles underlying the decision in Teague. The Court noted that the foundation of Teague is the notion that:

one of the principal functions of habeas corpus [is] to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. Consequently, unless a new rule of criminal procedure is of such a nature that without [it] the likelihood of an accurate conviction is seriously diminished, there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct beyond the power of the criminal law-making authority to proscribe, necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.

Bousely, 523 U.S. at 620 (alterations in original) (internal citations omitted). Considering that the underlying goal of Teague, as expressed in Bousley, is to ensure that an individual is not unjustly confined for actions that are not criminal, substantive laws are properly characterized as those rules that directly alter either the nature of the crime in question, or the ability of the legislature to criminalize certain conduct. See, Bousley, 523 U.S. at 620-21; Lagundoye, 674 N.W.2d at 95-99; In re E.B., 330 N.W.2d at 584.

. . . .

Considering these cases, it seems that in context of post-conviction relief, substantive rules should be considered those that either define criminal behavior itself, or define the penalties applicable to that behavior.

Although the question is a close one, we conclude that our decision in Ross falls more fittingly into the substantive category. Ross made clear that a material element of Indiana’s general habitual offender statute, section 35-50-2-8 of the Indiana Code -- that an individual could be punished as a habitual offender only if convicted of a current felony and two prior unrelated felonies -- could not be satisfied if the current felony was a misdemeanor handgun offense already enhanced to felony status under section 35-47-2-23(c)(2)(B). Ross, 729 N.E.2d at 116-17. Although Ross did not make legal what was illegal, or vice versa, our statutory interpretation led us to the conclusion that the legislature did not intend to enhance the same handgun offense twice in the same proceeding. This seems like the sort of subject matter that substantive law concerns itself with: “what conduct is criminal and [what is] the punishment to be imposed for such conduct.” 1 Wayne R. LaFave, Substantive Criminal Law §1.2 (2d ed. 2003).

Slip op. at 6-7.

If one places the above beside Justice Scalia's discussion of 17-element robbery charges in Blakely, it is hard not to conclude that Blakely or Apprendi ("as our precedents make clear") announced a new substantive rule not subject to Teague in either state or federal court.

Of course there's Summerlin (a.k.a. Schriro in Jacobs) to deal with. And it is interesting that even the four dissenters in Summerlin did not take the approach that Ring announced a new substantive rule. But Ring merely dealt with the Sixth Amendment; Blakely packs the double wollop of the Sixth and Fourteenth Amendments and, on one view, at least, does not merely address who decides, but also what is to be decided--robbery now may have 17 elements instead of 3.

Time to litigate.

Jaramillo Cert. Reply & Was Apprendi really from Indiana?

2005-10-14T02:06:00.000-04:00

A volunteer elf has sent me an HTML version of the State's cert. reply in Jaramillo. Smylie is set for conference (again?) on October 28th; Jaramillo has not yet been scheduled.

The AG's Jaramillo reply is brief and essentially accuses Jaramillo of making a sneak attack on Almendarez-Torres via the Double Jeopardy Clause instead of the Due Process Clause. As the reply points out, the Court would have to take two steps at once to grant Jaramillo relief: first it would have to overrule Almendarez-Torres, saying that prior convictions are now subject to Apprendi and Blakely; second, it would then have to say that prior convictions are the effective equivalent of elements and that, therefore, retrial after a failure to convict because of insufficient evidence bars retrial. Whether that really is two steps, though, is an interesting question. If Almendarez-Torres is overruled and even prior convictions become the functional equivalent of "traditional elements," then "functional equivalency" must have certain entailments--including the well-established double jeopardy rule of Burks v. United States, 427 U.S. 1 (1978).

I think the Indiana AG is way off the track, however, when he suggests that the Court should not take the case because there is no disagreement among the lower courts. How could there be? Recall Roper v. Simmons, which I thought was most remarkable for the fact that the Missouri Supreme Court had taken upon itself the job of overruling Stanford v. Kentucky. Justice O'Connor's dissent in Roper did not let that anomaly pass without notice; and there are not many appellate courts willing to follow in the Missouri Supreme Court's footsteps. (The Indiana Court of Appeals' Jaramillo opinion, oddly, seems to say that the court could have overrulled both Almendarez-Torres and Monge: "Jaramillo’s argument is plausible, but by no mean unassailable. Accepting the argument requires a fair amount of speculation on our part concerning the way certain Justices would assess particular components of the analysis Jaramillo presents. We would prefer to take the guesswork out of the exercise altogether, and so will leave it to the Supreme Court to decide for itself whether a new view on that question should carry the day.")

I have been meaning to write about what's wrong with Jaramillo. It turns out that a great deal more is wrong with it than I thought, even if the apparently unobjectionable Monge analysis is fine with respect to federal law. It would appear, however, that Apprendi without the Almendarez-Torres exception for prior convictions was the common law rule in Indiana at least as early as 1898, when the Indiana Supreme Court said:

It is insisted by appellant that as a former conviction of petit larceny was not averred in the affidavit and information, no question concerning grand larceny or the punishment therefor was presented, and therefore the court erred in giving any instruction as to the right of the jury to find the appellant guilty of grand larceny, and that for the same reason the verdict was contrary to law.

The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, that the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities. Wharton's Crim. Pl. and Prac. (9th ed.), section 935; Bishop's Directions and Forms, section 91; 1 Bishop's Crim. Proc., section 101; Bishop's Stat. Crimes, sections 240, 981, 1044; 1 Bishop's Crim. Law, sections 959-964; Clark's Crim. Proc., pp. 203, 204; Maguire v. State, 47 Md. 485; Plumbly v. Commonwealth, 2 Metc. (Mass.) 413; Tuttle v. Commonwealth, 2 Gray 506; Commonwealth v. Holley, 3 Gray 458; Garvey v. Commonwealth, 8 Gray 382; Commonwealth v. Miller, 8 Gray 484; Commonwealth v. Harrington, 130 Mass. 35; Rauch v. Commonwealth, 78 Pa. 490; Rand v. Commonwealth, 50 Va. 738, 9 Gratt. 738; State v. Adams, 64 N.H. 440, 13 A. 785; State v. Gorham, 65 Me. 270.

Evans v. State, 150 Ind. 651, 653-54 (1898). Evans is not quite as simple as the above snippet would appear, but it has never been overruled. Perhaps no state law argument was presented to the Indiana Supreme Court in Jaramillo. Maybe it should have been. I'm trying to track down how Evans seems to have largely disappeared over time. My instinct is that it has to do with the Indiana appellate courts, especially the Indiana Supreme Court, lazily cribbing the work of the U.S. Supreme Court--which, if true, provides its own irony in view of the number of times the Seventh Circuit has concluded, especially in habeas death penalty cases, that the Indiana Supreme Court has unreasonably applied federal law as determined by the United States Supreme Court--to the extent it has applied federal law at all.

If the references to Bishop in Evans seem familiar, they should. They are all over Blakely; Apprendi, and Justice Thomas's Apprendi concurrence, joined by Justice Scalia, and which advocates "a broader rule" than Apprendi--i.e., no prior conviction exception. Actually, Justice Thomas's Apprendi concurrence cites Evans. One might even say that it is, in large part, based on Evans, judging from the following snippet:

[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact--of whatever sort, including the fact of a prior conviction--the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.

Or is the petit-grand larceny example just an accident?

So there would be a certain poetry to the Court using an Indiana case . . . say, Jaramillo . . . to do in Almendarez-Torres. And we had Justice Souter writing Jones, Justice Stevens writing Apprendi and Booker, Justice Ginsburg writing Ring, and Justice Scalia writing Blakely. Who's missing from the Apprendi Five? Time for a Thomas opinion, isn't it, doing in Almendarez-Torres, which Justice Thomas now says he regrets having joined?

Does Smylie have a traveling companion?

2005-10-07T03:17:00.000-04:00

Smylie, I discovered quite accidentally, is not the only Indiana Blakely case looking for cert. Jaramillo v. State (Ind. March 11, 2005) is looking to go to Washington as well. I have not mentioned Jaramillo, although I should have. When it was decided by the Indiana Supreme Court just two days after Smylie last March, I didn't have enough energy to say all that needed to be said about Jaramillo. Smylie was taking it all out of me. And I regret very much not having revisited Jaramillo in the meantime.

Strictly speaking, Jaramillo is not a Blakely case. It is a Monge v. California case. And Monge is an Almendarez-Torres case.

And it gets more interesting. As in Smylie, the U.S. Supreme Court requested a response from the Indiana AG. The AG asked for 60 more days; and SCOTUS gave him 30--until Sunday. (I don't know whether that means that the response has to be in tomorrow or on Monday.) Originally, by the way, Smylie and Jaramillo were both scheduled for the September 26th conference. Here is the link to the Jaramillo SCOTUS docket. (I have also been told that filings often don't show up on the docket for as much as ten days because of all the security measures to which the mail is subjected.)

Has a decision on cert. in Smylie not been forthcoming, because it and Jaramillo are going to be considered together? They are so dissimilar that that seems unlikely. On the other hand, SCOTUS requested responses from the AG in both cases; and my information is that that happens only when someone in Washington is looking very closely at a case. What are the odds that the two cases would invoke requests for responses and be scheduled for the same conference without some connection? I guess they could be 100 percent.

I am not going to spill the beans in this post about what the real matter with Jaramillo is. (Unlike Dostoyevsky's Underground Man, I don't have an editor to stop me from going on and on.) But here's a clue to for those fanactic enough to do the reading. Compare the Indiana Supreme Court opinion with the earlier opinion of the Court of Appeals. Something very important is missing. In fact, what is missing is more important to Jaramillo than what is there.

I hope to have Jaramillo's cert. petition within a few days.

[Update: Here is the link to the Jaramillo cert. petition.]

Smylie & Ritchie: No decision & denied.

2005-10-03T20:39:00.000-04:00

Smylie was not among the grants or denials on today's SCOTUS order list. And according to Doug Berman's estimate on Sentencing Law & Policy, there are 2000 or so denials on the order list.

So Smylie lives to fight another day. Let's suppose there are four votes to grant cert. Perhaps those four votes want to see where the new Chief Justice will weigh in. If the four can get a fifth, then they go ahead; if not, the four votes evaporate. It seems to me that if there were five votes for cert. or only three, they'd just have just granted or denied. Maybe not.

Cert. was denied in Ritchie v. State, one of the cases, along with Barker, in which the Indiana Supreme Court decided that Ring does not require that juries in death penalty cases "find" that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. No case could have presented the question more clearly, so the cert. denial does mean something.

Smylie: The AG's Reply

2005-09-28T02:42:00.000-04:00

Here is the State's reply to Smylie's cert. petition. It's not a pretty copy, but readable enough for the committed. (I have also put it in the sidebar below the link to Smylie's petition.)

After finishing the section about two "grievous procedural blemishes," the first of which (waiver) metapmorphoses into a "hiccup," at page 4, the State makes the quite extraordinary claim that Smylie's petition "does nothing more than challenge the Indiana Supreme Court's interpretation of Indiana's sentencing statutes." I suggest that the claim is extraordinary because of the purpose for which it is offered: to show that the case presents no "substantial federal question." Exactly the same thing could be said of cert. petitions arising from the Tennessee Supreme Court's decision in Gomez and the California Supreme Court's decision in Black. In fact, every state application, avoidance, or evasion of Blakely is always necessarily going to depend chiefly upon state court interpretations of sentencing statutes.

Somewhat more interesting is that the Indiana AG wields as a sword the fundamental indencency of Smylie with respect to consecutive sentences. Recall in Smylie that the Indiana Supreme Court said: "But our statutes do not erect any target or presumption concerning concurrent or consecutive sentences. Where the criminal law leaves sentencing to the unguided discretion of the judge there is no judicial impingement upon the traditional role of the jury.' Blakely, 542 U.S. at __, 124 S.Ct. at 2540." Of course, before Smylie, and before the General Assembly maximally Booker-ized the sentencing statutes last April, for more than 20 years, there had been a requirement, imposed by the Indiana Supreme Court, itself, as a gloss on the sentencing statutes, that a judge find an aggravating circumstance before imposing a discretionary consecutive sentence.

Now the AG says to the United States Supreme Court--and it might be correct--that the Court is stuck with the Indiana Supreme Court's Smylie interpretation, "[r]egardless of whether that constitutes a change from prior interpretations of that statute." Page 5. The AG returns to this argument and the notice aspect of Blakely on page 9, relying on language from the New Jersey Supreme Court's decision in Abdullah: "Under such a non-presumptive system, a defendant has no entitlement or legal right to concurrent sentences; every defendant who commits multiple crimes knows that by those actions alone, he risks receiving consecutive sentences."

Now recall the functional test of Blakely itself, where Justice Scalia points out that had the judge there imposed "the 90-month exceptional sentence solely on the basis of the plea, he would have been reversed." At the time Smylie was sentenced--at the time he committed the crimes to which he pled guilty-- the law in Indiana was and had been since 1982 that Smylie's consecutive sentences would have been reversed on appeal, unless the trial judge had found an aggravating circumstance. So much for the AG's notice argument. (Perhaps Smylie should have raised an equal protection claim--or even an ex post facto claim, come to think of it.)

But none of the above really matters if Blakely simply doesn't apply to consecutive sentences, because they are separate sentences. (There is no reason that the Indiana Supreme Court could not simply have said as much in Smylie without adopting Stalin's approach to history. It's not as though there is great disagreement on this point among the courts of the land.) The heart of the argument is whether the Indiana AG is correct at page 7, where he says: "Running individual sentences for separate crimes consecutive to each other does not increase the penalty that is imposed for any particular crime." Superficially and intuitively, that seems correct, especially if one focuses on the now-famous phrase, "statutory maximum." The arguments to the contrary are pretty tortured.

In any event, Smylie was not among the cases in which cert. was granted (or denied, as far as I can tell) today. See this post on SCOTUSBlog with summaries of the cert. grants and this link (thanks to SCOTUSBlog) to the order list itself. According to SCOTUSBlog here, next Monday is the next day for the Court to issue orders. The order list was all grants, so there must be a bucketful of denials waiting to rain down. (In this post Tom Goldstein of SCOTUSBlog said that he had reviewed something like 500 cert. petitions that were up for consideration at Monday's conference.) The odds have to be that Smylie is in the bucket.

Penultimately, I note that the new Indiana blog on the block, Joshua Claybourn's Indiana Barrister, got a mention in this post on SCOTUSBlog for this report about a Senate bill to authorize televising Supreme Court arguments. Chapeau.

Ultimately, it's time to make post-midnight naleśniki for a certain little guy's lunch tomorrow.

Smylie: The AG has responded after all.

2005-09-27T00:38:00.000-04:00

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.

Smylie: Tomorrow's the Day.

2005-09-26T00:27:00.000-04:00

Well, a glance at the Smylie Supreme Court docket shows that Indiana has still not filed the requested response to Smylie's cert. petition. That is puzzling to an outsider like me. Maybe it happens all the time.

Anyway, tomorrow is conference day for Smylie. I see over at SCOTUSBLOG that Smylie is not among the cases that the folks there think are likely to have cert. granted. If cert. were to be granted, I think I can easily see a relatively brief per curiam opinion more or less flatly saying that the Jones-Booker line of cases simply does not apply to discretionary consecutive sentencing. That would at least settle whatever uncertainty may be out there on the subject--which is not much.

An opinion saying that Blakely does apply to discretionary consecutive sentences I find much harder to imagine. First, the Court will almost necessarily become entangled in 20 years of state court interpretation of statutes that do not, themselves, require judicial fact-finding to support consecutive sentences. So it is not clear to me what possible clear general application a Smylie v. Indiana decision would have. Even if such a decision had some arguable general application to the Blakely-affected and Blakely-afflicted, it would not take much for courts elsewhere to distinguish, even plausibly, their consecutive sentencing schemes from Indiana's.

But second--and perhaps this is just another way of putting what was first--Jones, Apprendi, Ring, Blakely, and Booker share one striking feature, it seems to me: they are based on law and principles just about older than dirt. They are really quite straightforward cases that require no fancy dancing. (With respect to Booker, I am speaking of Justice Stevens' opinion.) One may disagree with the history or the result as, obviously, Justice O'Connor has repeatedly. But there is nothing complex, except in various entailments, about what the cases say or even why they say it. And I think that's why there have been five justices who have agreed five times now about the law and the principles involved.

A Smylie opinion applying Blakely to discretionary consecutive sentencing would not be simple; and I just doubt that the five votes would hang together when faced with any degree of complexity. One only has to look at Justice Ginsburg's departure for the Breyer remedial opinion in Booker to detect a definite fragility in the crystal.

I haven't a clue what a new Chief Justice Roberts will contribute to the debate or the vote. The uninteresting assumption has to be that he will fit more or less snugly into Chief Justice Rehnquist's now-missing place in the puzzle. I'm ready to be surprised.

SL&P: An Amazing State Blakely Page

2005-09-09T02:50:00.000-04:00

Doug Berman at Sentencing Law & Policy has created this terrific page with State by State and issue by issue links to state Blakely resources. Does this guy ever sleep? I suspect elves.

Smylie's Cert. Petition, Ryle, and Retroactivity

2005-08-31T01:52:00.000-04:00

Here's a link to Smylie's cert. petition. (PDF, about 115KB.) It is also now in the sidebar under Recent Blakely Documents & Articles. Joe Cleary did a marvelous job making the argument (deceptively) simple and putting it in SCOTUS-speak. I hope to be able to nab the State's response, if any, come September 21st.

In putting this up, I noticed that we still have not heard from the Indiana Supreme Court in Ryle about Blakely, juvenile adjudications, and the prior conviction exception. With the April change in Indiana's sentencing statutes, perhaps the issue is not too pressing.

The only potentially breath-taking Blakely issue left, it seems to me, is retroactivity. Judge Bataillon's opinion from August 22nd in U.S. v. Okai (D. Neb.) is a very interesting place to start on that one. (Thanks to Sentencing Law & Policy in this post.) It's a forty-plus page opinion. Start at the bottom of page 17.

The citation to Ivan v. City of New York, 407 U.S. 203 (1972) (per curiam) for Winship's "full retroactivity" is interesting. As I read Ivan, it's not at all clear that "full retroactivity" means more than Griffith. That is, does Ivan stand for the proposition that Winship applies to cases pending on direct review when Winship was decided? Or does it say that cases already final as of Winship may be reopened?

Whatever the answer to that question--and I shall track it down--the following language from Ivan would suggest that upping the burden of proof for sentencing facts to beyond a reasonable doubt should, in fact, fit withing Teague's second exception:

Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.

Here's the language from the plurality opinion in Teague:

Finally, we believe that Justice Harlan's concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.

There isn't much daylight between the two. And while Judge Batallion writes of the moving from a preponderance standard to beyond a reasonable doubt (even after the Booker remedial opinion), recall that Indiana, under the old sentencing regimie at issue in Smylie, had no standard at all for the judicial finding of sentencing facts. To survive appeal, an enhanced sentence merely had to be base upon a judicially found aggravating circumstances supported by the record. Which leads to an interesting possibility: the jump from a preponderance standard to beyond a reasonable doubt might not, in the end, trigger Teague's second exception; a jump from nothing to beyond a reasonable doubt, on the other hand, might.

Baird Spared

2005-08-29T23:18:00.000-04:00

Baird was spared today. Governor Daniels commuted his death sentence to life without parole. Marcia Oddi at the Indiana Law Blog has this quote from the Indianapolis Star about the clemency decision.

Indiana governors have not often commuted death sentences. Governor Kernan commuted Darnell Williams' death sentence last summer, I believe it was. This piece from the Indianapolis Star--again on the inimitable ILB--pointed out that before Williams, clemency hadn't been granted in an Indiana death case since 1956.

That's two in a year. By two different governors. Of two different political parties. As depressing as the flight from Blakely and Booker in both state and federal courts might be (see this recent post by Doug Berman at Sentencing Law & Policy), this is a hopeful political development. Even a reason to be cheerful.

Now, if the wretched "Streamlining Habeas" bill will just go away . . . . Or has it already?

Smylie: A month here, a month there . . .

2005-08-28T03:02:00.000-04:00

Without, apparently, having filed a request, it seems that Indiana has received an extension to file its (requested) response to Smylie's cert. petition. It's now due September 21st--5 days before the case is scheduled for conference. Here is the link to the docket.

Just another day at the Attorney General's office, I guess. I sure wouldn't let a SCOTUS deadline pass without filing something. Does anyone know if you can just call up the clerk and say, "Hey, howz about another 30 days on that thing your bosses asked for?"

Arthur Baird: Rehearing Denied, Dissent, and the Story . . .

2005-08-26T00:29:00.000-04:00

Marcia Oddi reports in this post over at the Indiana Law Blog that a divided Indiana Supreme Court has issued an order clearing the way for Arthur Baird's execution next week. I'm not sure what the division is about. I guess we'll see when Justice Boehm's opinion dissenting from the order appears in the ether . . . if it does. Justice Rucker apparently concurs in the dissent.

It's all just a little odd. On July 19th, a unanimous court denied Baird the opportunity to file a successive state post-conviction petition. Opinion here. So what has changed in a month and a week for two justices? Maybe there was something persuasive in the rehearing petition. Maybe.

I will always recall reading Justice DeBruler's plainly elegant rendition in Baird's direct appeal of what happened:

Appellant and his wife, Nadine, lived in a house trailer located on the forty-acre farm near Darlington, Indiana, that he jointly owned with his parents, Kathryn and Arthur Paul Baird, I. His parents lived in the farmhouse and appellant's maternal grandmother, Noradean Fleming, lived in another trailer on the property. At approximately 4:00 or 5:00 p.m. on September 6, 1985, appellant and Nadine were getting ready to drive to Crawfordsville to go shopping. They planned to visit with Nadine's parents, Lemoyne and Margaret Altic, after they finished, as was their habit on Friday evenings. Nadine was ready to leave before appellant and due to the heat she lay down on the bed and turned a portable fan on herself while she waited for him. After appellant finished getting ready, he walked back to the bedroom and strangled his wife with his hands, then tied a plaid shirt around her neck.

Nadine's parents called the trailer twice that evening. Around 6:00 p.m., appellant told her parents that they would not be visiting because Nadine was sick. The Altics were worried because Nadine was about six months pregnant and they wanted to check on her, but appellant told them not to come over because she had gone to bed. The Altics called back at 10:00 p.m., after also having called appellant's parents to inquire as to Nadine's health, at which time appellant told them that Nadine was still asleep.

Appellant spent the rest of the night in the trailer watching television, writing notes, and periodically lying down next to his wife's body to hold her. He went to his parent's house at about 7:00 a.m., finding them already awake. He fed the chickens and brought the newspaper to his father, and his mother gave him a hair cut. His father then went outside to the washhouse and his mother returned to the sink to finish making some pickles she had started. Appellant then grabbed her from behind, covered her mouth with one hand, reached for a butcher knife, and stabbed her several times in the abdomen and throat as she struggled and screamed for help. As soon as she fell to the floor he headed for the back door and met his father who was entering the house. Appellant mentioned something about a disturbance, and before his father could react appellant stabbed him in the abdomen and throat as the victim attempted to fight him off.

Appellant went back to the trailer and gathered items which he then loaded in his parent's car until the rear end nearly touched the ground. Margaret Altic called between 8:00 and 9:00 a.m., and appellant told her that Nadine was alright but still in bed. He stated that they were going to leave soon for their realtor's office to close the deal on a 253 acre farm that they had been attempting to purchase for approximately a year and that they would stop over afterwards. Mrs. Altic called again at 9:45 a.m. and appellant again told her that he was about to awaken Nadine and that they would come over after the closing.

Appellant left in his mother's loaded down car but turned around in a neighbor's driveway to come back for a pair of pliers that he thought he might need to open some canned food jars. He left again around 11:00 a.m., driving south toward Lagoda through Darlington and Crawfordsville and then on back roads to Huntingburg, where he was apprehended, two and one half hours from his home, at 4:00 p.m. on Sunday, September 8th, while watching a softball game.

Baird v. State, 604 N.E.2d 1170, 1175076 (Ind. 1992).

Mr. Smylie goes to Washington.

2005-08-21T21:18:00.000-04:00

It's been two months since my last post, and tomorrow is a sort of big Blakely day for Indiana. Back in June, Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences in Indiana. The State then actually waived its right to respond--as opposed to the usual notice, I believe, that it would respond, if asked. Then, lo and behold, the Supreme Court ordered Indiana to respond by tomorrow. Here's the Supreme Court docket sheet; and I'll try to get it into the sidebar when I update that.

I don't know that it means much, but somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing.

I think I've recovered from my disgust at the California Supreme Court doing a Gomez. It's taken a while. And some interesting things have happened in the meantime. Lot's to talk about.

A Black Day: The California Supreme Court speaks . .

2005-06-20T17:05:00.000-04:00

As advertised, the California Supreme Court has decided People v. Black. Six to one, the court has said Blakely does not apply to California sentencing. Justice Kennard stuck to her guns and dissented from that particular holding, although she said that Black's particular sentence did not violate Blakely. (See this prior post about the oral argument.)

The court also held that Blakely doesn't apply to consecutive sentencing in California because: 1) Blakely doesn't apply to California sentencing at all; and 2) Blakely doesn't apply to consecutive sentencing in any event.

The majority opinion is essentially Tennessee's Gomez revisited, taking its cue from the same paragraph of Justice Stevens' majority Booker opinion that Gomez completely misinterpreted. (See this prior post and this prior post about misunderstanding Booker. In the first of the two, it appeared to me that all but Justice Kennard were focusing on the Stevens paragraph. There are two tragedies in life: not being right and being right.) The Black majority does buff up the Gomez argument a bit with the intent of the California legislature in adopting California's "determinate sentencing law." There is also a highly problematic comparison of the post-Booker federal sentencing world with California sentencing.

Perhaps the most suspect moment of the majority opinion comes in an attempt to distinguish the "exceptional" sentence at issue in Blakely with California's every-day sentencing. The idea seems to be that because California courts impose upper terms all the time, there is nothing "exceptional" about the process and so not subject to Blakely.

The huge number of California Blakely cases almost guarantee a cert. petition. Because of California's size and the number of Blakely cases, a denial of a cert. petition in this case would be very telling--almost unimaginable. I find the prospect of a cert. denial almost unimaginable, because Jones, Apprendi, Blakely, and Booker create and enforce a formal sentencing rule that has nothing to do with legislative intent or distinctions between the exceptional and the every-day. But I have suffered a failure of imagination on any number of occasions here in Blakely World.

We now get to wait to see what the New Jersey Supreme Court says in Natale, Abdullah, and Franklin. As I recall the oral argument now, after Gomez and Black, I guess almost anything is possible. A number of the justices were pushing the Stevens "judicial discretion" paragraph from Booker. And I guess Black now gives the Gomez argument a certain faux-respectability--that can only be more faux than respectable.