Marion County Blakely Filings

I have received permission to post several Blakely-related documents that the Marion County Public Defender Agency is going to begin filing in its cases on Wednesday. Especially interesting to me is the motion for a declaratory judgment (here) that certain sentencing statutes are unconstitutional.

There is also a filing related to defendants' participation in the pre-sentence investigation process (here) and sentencing trial process (here), in the event that courts start seating sentencing juries (which the motion for a declaratory judgment says they may not).

With respect to sentencing juries, there is an interesting footnote in the declaratory judgment motion to counter the State's argument in Heath and Smylie that courts have inherent authority to bifurcate trials into guilt and sentencing phases:

In the two cases implicating Blakely that are set for oral argument before the Indiana Supreme Court in November, the Attorney General concedes that “no Indiana statute specifically provides a procedure by which a jury finds aggravating circumstances,” but then concludes that trial courts should adopt a procedure of “conven[ing] a jury to consider the State’s proposed aggravating circumstances . . . .” Response to Pet. for Transfer, 41A91-0309-CR-339 (Aug. 4, 2004). This proffered solution is not the sort of judicial band-aid permissible under Baldwin but rather is more akin to quadruple bypass surgery.

The State relies on Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972), which authorized the convening of a sentencing jury to hear evidence. In Lawrence, the Court held that a defendant's right to a fair trial was infringed when evidence of his habitual offender status was presented at the same time as evidence of the underlying offense. The Court then created a bifurcated trial procedure, leaving the presentation of habitual offender evidence until after a guilty verdict is rendered. Lawrence is inapposite. The statute at issue in that case explicitly provided for habitual offender evidence to be presented to a jury. Here, the statute permitting consideration of aggravating factors explicitly states that the evidence is to be presented to the court alone. The Court in Lawrence simply affected the timing of the evidentiary presentation permitted by the statute; the State's position here would require the Court to read into the statute that which is explicitly prohibited.