Blakely in Howard County

Thanks to a lawyer up north, I and many others have received a digital copy of a memo from Lynn Murray, the Howard Circuit Court judge to the local criminal defense lawyers about how she's going to handle Blakely. This appears to be a result of the Blakely talk at the Judicial Conference last week, which I wrote a little about here. (The speaker, I am told, was Jane Magnus-Stinson, one of the Marion County judges.)

[Later]: Marcia Oddi has converted the memo from PDF for on-line reading here.

The highlights of the memo are that the State doesn't have to charge aggravators, but has to file a "Notice of Potential Aggravators" 30 days before trial. If there's a conviction, then there's a sentencing phase--for which there is, of course, no statutory authority, as Mike Limrick pointed out in his Res Gestae article last summer. There's nothing in the memo about whether the the evidence rules will apply at the sentencing phase.

Finally the memo says: "The court shall not accept a guilty plea without first determining that the defendant has been informed that by pleading guilty, the defendant waives the right to have a jury determine the aggravating circumstances."

At a minimum, if this stuff is coming from the Judicial Center or State Court Admin generally, I think it is becoming at least a safer guess that the Supreme Court is going to say that Blakely applies to Indiana non-capital sentencing. (Of course, they could have said it themselves with respect to Apprendi long ago without prompting, or after Mike Limrick's devastatingly persuasive article in Res Gestae in April 2003.)

Of course, there remains the question of what Blakely says about weighing in capital cases. But that's a whole nother question.