Where I have been most often starting on the question of procedural default, for example, are the "procedural protections," as Lorraine Rodts put it in the first moments of her argument, that seem to spring up once the Sixth Amendment requires that aggravating circumstances be found by a jury beyond a reasonable doubt, if the finding of the aggravating circumstance are to expose a defendant to greater punishment. With respect to procedural default, that starting point leads one down the road of considering whether aggravating circumstance are elements and, even if they are, are you in the Land of Cotton. One can go 'round and 'round on that one, getting quite lost and confused in any number of dark woods or briar patches, as Judge Posner referred to the Blakely waiver problem recently in United States v. LaGiglio, 384 F.3d 925, (7th Cir. October 8, 2004).
But if I begin with Blakely's explicit concern regarding the Sixth Amendment's allocation of authority that implies the Fourteenth Amendment's standard of proof, I find myself wandering down the road laid out in a footnote in United States v. Terrell, 2004 U.S. Dist. LEXIS 13781, *15 n.3 (D. Neb. July 22, 2004):
Blakely expressly authorizes a defendant to waive the right to a jury trial and to consent to factfinding by the court. Blakely, 124 S. Ct. at 2541 ("When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding."). Such judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt," however. Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained. See In the Matter of Winship, 397 U.S. 358, 364 (1970) ("The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). The standard not only protects the accused from error, but is "indispensable to command the respect and confidence of the community in applications of the criminal law." Id. at 363. Accordingly, "it is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Id. See also Victor v. Nebraska, 511 U.S. 1 (1994) ("The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires."); Sullivan v. Louisiana, 508 U.S. 275, 278, 282-83 (1993) (stating that "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt" and noting that an instructional error misdescribing the burden of proof will vitiate the jury's findings: "denial of the right to a jury verdict of guilt beyond a reasonable doubt" is structural error not subject to harmless error review); Estelle v. McGuire, 502 U.S. 62[, 69] (1991) ("The prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense"); Jackson v. Virginia, 443 U.S. 307 (1979) (The Winship doctrine, "establishing so fundamental a substantive constitutional standard, must also require that the factfinder will rationally apply that standard to the facts in evidence"); Patterson v. New York, 432 U.S. 197, 215 (1977) (recognizing a limit on state authority to reallocate traditional burdens of proof); United States v. Ameline, 2004 U.S. App. LEXIS 15031, No. 02-30326, slip. op. at 34 n.19 (9th Cir. July 21, 2004).
Characterization of facts that increase a defendant's maximum sentence as "the functional equivalent of elements" as opposed to sentencing factors means that judicial factfinding by a preponderance of evidence will not satisfy the Due Process Clause with respect to those facts. Cf. United States v. Watts, 519 U.S. 148, 154 (1997) (sentencing enhancements do not punish a defendant for crimes of which he was not convicted); McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) (visible possession of a weapon not found to be an element of crime when proof of that fact did not expose defendant to greater or additional punishment).
Characterization of facts that increase a defendant's maximum sentence as "the functional equivalent of elements" as opposed to sentencing factors means that judicial factfinding by a preponderance of evidence will not satisfy the Due Process Clause with respect to those facts. Cf. United States v. Watts, 519 U.S. 148, 154 (1997) (sentencing enhancements do not punish a defendant for crimes of which he was not convicted); McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) (visible possession of a weapon not found to be an element of crime when proof of that fact did not expose defendant to greater or additional punishment).
(Emphasis added) (parallel citations omitted). So for Indiana, even if one can, for the purposes of appeal, default a claim that a jury instead of a judge should have found the aggravating circumstances used to enhance a sentence, can one default the claim that the judge was required to find the aggravating circumstances beyond a reasonable doubt?
Judicial factfinding in Indiana's sentencing process is completely standardless. On appeal, a judge's findings with respect to aggravating circumstances need only be supported by the record, a standard seeming to me more familiar in the administrative law context. See Veal v. State, 784 N.E.2d 490, 494 (Ind. 2002) (trial court's sentence supported by the record despite the finding of multiple invalid aggravating circumstances.) Now in Winegeart v. State, 665 N.E.2d 893, 896 (Ind. 1996), there was a complaint about an alleged Cage instruction. There had been no objection to that instruction. The Indiana Supreme Court went on, nonetheless, to consider whether the giving of the instruction had been "fundamental error." The court did a detailed federal-law analysis on the claim's merits and concluded that there had been no error at all. Because there was no error, there was no "fundamental error," the court said, still reviewing the fundamental error claim on its merits.
Both Heath and Smylie, however, are cases where, if Blakely applies to Indiana's sentencing scheme--or maybe depending on how it does, if it does--statutorily standardless factfinding of aggravating circumsances by a judge is almost necessarily going to be held a fourteenth amendment due process violation. If it follows the Winegeart method--which is also the method, I believe, the court always follows where fundamental error is claimed--the court is going to have to make the difficult assessment it did not have to make in Winegeart: Was the error, in fact, "fundamental" as the Indiana cases define the term?
The usual formulation was repeated by the court quite recently in Ritchie v. State, 809 N.E.2d 258, 273 (Ind. 2004), reh'g denied: "Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process." (Citation omitted). (Somehow my investigations of or ruminations about Blakely in Indiana keep dragging me back with amazing frequency to the companion cases of Ritchie and Barker, decided last May, a month before Blakely.) Looking back at Heath's and Smylie's sentencings in brand new Blakely goggles, could the court say a literal violation of the Due Process Clause and Winship with respect to the standard of proof by which the respective aggravating circumstances were found was anything but basic, blatant, and unfair?
In light of various facts specific to the cases, I suppose the court might conclude, as it has in other cases, that the error that occurred in both of these cases with respect to the standard of proof was harmless and therefore not fundamental. But that is not the same as finding the claims defaulted.
Yet if I start out not with not the standard of proof imposed by the Fourteenth Amendment, but the burden of proof, a whole different geography of problems appears with respect to procedural default. Not much has been said about this in anything I have read about Blakely in state or federal courts. The arguments yesterday came within an inch of opening up the subject when Justice Dickson mentioned mentioned presentence investigation reports and notice during Joe Cleary's argument. But the arguments then flew off again in other directions.
If Blakely applies to Indiana's sentencing scheme--or again, maybe depending on how it applies--it is the State's burden to plead and prove any aggravating circumstances used to enhance a sentence--except, for the time being, the fact of a prior conviction. In Heath's and Smiley's cases, the State didn't have to do anything except, perhaps, to argue sentencing when the time came. That's because the court through its probation department did all the investigating, "pleading," and proving.
So the Blakely errors in these cases include not only a misallocation of factfinding from jury to judge, but also an additional misallocation of authority and duties from prosecutor to judge. Besides the separation of powers problem of a judge performing the functions of a prosecutor--a claim, I seem to recall from earlier battles, is defaultable for appeal, there is also the problem of a judge, admittedly through the probation department, actually investigating and presenting facts for the prosecutor. I haven't done the research, but it would seem almost axiomatic that fourteenth amendment due process doesn't permit judges to act as second prosecutors, which the judges in Heath and Smiley almost certainly did. So can one default a claim that a judge acted as a second prosecutor, when the facts supporting the claim became known for the first time during the appeal?
Whatever the answer to that question, if Blakely applies to Indiana sentencing, it would seem that court-run probation departments ought, in the future, to have nothing to do with the investigation of aggravating circumstances that may increase punishment.
Then there is the starting point, emphasized in the amicus brief in the New Jersey case, State v. Natale, that I mentioned here and here, that certain Indiana sentencing statutes may be facially unconstitutional after Blakely. Can one default that claim? The Indiana Supreme Court will probably say yes since, while others like me were nigh unto obsessed with Blakely, the court decided a case that I find troubling. In Lee v. State, Supreme Court No. 02S03-0310-PC-463 (Ind. October 19, 2004), a unanimous court said that defendants may agree to plainly illegal sentences, but may not complain about the illegality later. (I'm putting Lee away in my follow-up bookmarks for a Blakely-break in the posts sometime.)
In the end, opinions finding procedural default will arguably ratify the following: as long as nobody objects, administrative law judges, acting as both criminal juries and prosecutors, may impose enhanced sentences on the authority of unconstitutional statutes.
Anything's possible in Blakely World.
In addition to discussing some of the exchanges that arose during the argument, I will try along the way to correct misstatements I made in my first post-argument post here. The first such correction is that it was Justice Sullivan and not Justice Boehm, as I reported, who said that he was not sure why defendants should be penalized for not anticipating Blakely.
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