Blakely Waivers: A Great Brief

Waiver, I am told, has been a central argument in the State's Blakely briefs. This should not be surprising. When as a DAG I had trotted out waiver in an answer brief, the reply brief came back, beginning: "The Four Horsemen of the Attorney General's Office: Waiver, Procedural Default, Res Judicata, and Law of the Case."

The Federal Defender for the Northern District of Texas filed an amicus brief in Booker and Fanfan dealing exclusively with waiver. It is here on Sentencing Law & Policy. (It can be viewed in Googlized HTML here.) Boykin, Johnson v. Zerbst, Duncan v. Louisiana, In re Winship . . . all make a prominent appearance. Which only goes to show the importance of a comment made on SL&P some time ago: "This really isn't about the sentencing guidelines or determinate sentencing at all . . . its basic criminal law and procedure and basic constitutional law." (Here's the full comment).

The central point of the Texas brief is summed up in the following from pages 5 and 6 of the brief:

In sum, neither Almendarez-Torres nor Apprendi condoned a defendant waiving constitutional rights simply by admitting essential facts that would result in an increase in the relevant statutory maximum sentence, but that are not related to the fact of a prior conviction. Thus, this Court has not sanctioned such a “waiver” and it cannot reasonably be argued that a defendant can waive Apprendi rights by simply admitting those facts, unrelated to a prior conviction, that increase the defendant’s relevant statutory maximum sentence. Cf. Apprendi, 530 U.S. at 488; Jones, 526 U.S. at 249; In re Winship, 397 U.S. 358, 364 (1970); Johnson, 304 U.S. at 465. . . .

It is beyond peradventure that a mere factual admission does not fulfill the requirements of a voluntary and knowing waiver of Apprendi rights.

(Some citations omitted) (footnote omitted). And footnote 9 on page 6 provides a point so important that I am not sure why it is in a footnote:

The Court has clearly held that “‘[p]resuming waiver from a silent record is impermissible.’” Boykin v. Alabama, 395 U.S. 238, 242 (1969) (quoting Carnely v. Cochran, 369 U.S. 506, 516 (1962)). Indeed, a simple admission does not “speak” to whether the person has knowingly and voluntarily waived their constitutional rights. Cf. Boykin, 395 U.S. at 242-43.

In addition to providing a ready-made answer to the State's appellate arguments regarding waiver, the brief also provides a good platform to think about strengths and weaknesses of the two waiver forms I have that are apparently in use in Lawrence (here) and Marion (here) (from the Judicial Conference Materials) Counties, and of the Howard County memo from Judge Murray about post-Blakely procedure in her court (here). (Judge Murray's memo says, "Note that Blakely exempts . . . facts admitted by the defendant . . . .")