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

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)?!!?

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 . . .

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 . . .

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).

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!

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?

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?

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.

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

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.

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.

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

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

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

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 . . .

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 . . .

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.

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 . .

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.

Time to get Ryled up

Oral argument in the Indiana Supreme Court in Ryle is coming up on June 21st at 9:00 a.m. (Come the 21st, drop in to this website to watch the argument with RealPlayer.)

Recall that the Indiana Supreme Court granted transfer in Ryle, vacated thereby the opinion of the Court of Appeals, and asked for supplemental briefing on two Blakely-related questions which, put in Blakely-speak, are whether juvenile adjudications and being on probation at the time a crime is committed fit within the prior conviction exception. In Indiana-speak, the question is whether these things are "derivative of criminal history."

Before I go on, I should disclose that I have been helping with Ryle's side of the argument. Here are links to: Ryle's supplemental brief and the State's supplemental brief.

With respect to juvenile adjudications, Judge Najam's Ryle opinion from last December does a brief survey of what the opinion represents as the published authority on the subject. Contra treating juvenile adjudications as subject to the prior conviction exception, the opinion represents a single case from the Ninth Circuit, U.S. v. Tighe (9th Cir. 9/24/01).

The opinion represents three opinions, on the other hand, as authority for treating juvenile adjudications as prior convictions. They are: State v. Hitt (Kan. 3/15/02); U.S. v. Smalley (8th Cir. 5/14/02); and U.S. v. Jones (3rd Cir. 6/19/03).

Without any independent analysis, the Ryle panel did not have any trouble dismissing the single opinion from that crazy, liberal court in the West and concluding: "We now join those courts which disagree with the holding of the Ninth Circuit in Tighe and conclude that juvenile adjudications are 'prior convictions' under Apprendi."

At the time that Ryle was decided, however, there were two other decisions dealing with juvenile adjudications as subject to the prior conviction exception. One was a 2002 case from the California Court of Appeals: People v. Bowden (Cal. App. Dist. 2 Div. 4) (9/24/02).

There was also, however, one amazing case on delinquency adjudications and the prior conviction exception from the Pelican State: State v. Brown (La. 7/6/04). There is really no substitute for the opinion itself. It is the onlyboth the relevant U.S. Supreme Court precedent and the distinct nature of juvenile law. case to discuss seriously

After surveying the authority on both sides, the Louisiana Supreme Court said: "Thus, as can be seen, following Apprendi there are two reasonable schools of thought on whether juvenile adjudications, in which the juvenile did not have the right to a jury, can properly be characterized as 'prior convictions'" for felony sentence enhancement purposes." Slip op. at 14. But from the following paragraph, it becomes clear that the court does not really mean that it thinks both schools of thought are "reasonable":

If a juvenile adjudication, with its lack of a right to a jury trial which is afforded to adult criminals, can then be counted as a predicate offense the same as a felony conviction for purposes of Louisiana’s Habitual Offender Law, then “the entire claim of parens patriae becomes a hypocritical mockery.” In re C.B., p. 17, 708 So.2d at 400 (quoting Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259, 269 (1966)).

Slip op. at 21. Brown also includes a citation to a Marquette Law Review comment on the subject of Apprendi, juvenile adjudications, and prior convictions: Brian Thill, Comment, Prior “Convictions” Under Apprendi: Why Juvenile Adjudications May Not Be Used to increase an Offender’s Sentence Exposure if They Have Not First Been Proven To a Jury Beyond a Reasonable Doubt, 87 MARQ. L. REV. 573, 575 (2004). Slip op. at 10. The title pretty much explains the position taken.

In addition to Brown, there was a 2002 Harvard Law Review note weighing taking Tighe's side against Smalley McKeiver v. Pennsylvania (1971) and Ballew v. Georgia (1978), as well as on some social science research, that facts found by juries are more reliable than those found by judges. So, the argument concludes, "[T]he TigheSmalley (116 Harv. L. Rev. 705), arguing that there are reasons to believe, based on two U.S. Supreme Court decisions, court's understanding of juvenile adjudications is more constitutionally sound than that espoused by the court."

There have been a couple of opinions recently weighing in on the Hitt side: U.S. v. Burge, 407 F.3d 1183 (11th Cir. 5/2/05) and State v. Weber, (Wash. Ct. App. 6/6/05).

There is an interesting fact about the Kansas case, Hitt: although cert. was eventually denied in 2003, in an October 2002 order, the Court invited the Solicitor General to express the federal government's views. Hitt was decided within a year of Apprendi, and I think the Court was already trolling for the case that would become Blakely. And I do not think the request for the SG's views in the cert. process is irrelevant to the weight to be given Hitt.

Similarly, but on the other side of the cert. ledger, Louisiana's cert. petition in Brown was denied--post-Blakely. That particular tea leaf, especially when placed beside the invitation to the SG in Hitt, I find particularly interesting. There is, of course, the question of what a court is to do in the absence of clear controlling precedent. Should the court try to anticipate what the U.S. Supreme Court would do, or should it simply call it as it sees it in light of the controlling precedent that does exist? That question could be the subject of several tedious law review articles.

So there is a split in the circuits: the 3rd, 8th, and 11th, against the 9th (and the Harvard and Marquette Law Reviews). There is also a split in the state supreme courts: Kansas against Louisiana. The Washington, Oregon, and Indiana Courts of Appeal have all come down on the side of Hitt. The Indiana Supreme Court's eventual Ryle decision will not resolve the split, but only add weight to one side or the other; and with the split in the circuits and the state supreme courts, it should be apparent that Ryle, whatever the result, will be prime cert. meat.

I want to suggest that beyond my belief that that crazy, liberal Louisiana Supreme Court was "right" in any reasonable sense of the word, there are the following reasons the Indiana Supreme Court should side with Tighe, Brown, and the Harvard and Marquette Law Reviews. First, a delinquency finding is distinctly not a conviction. Formally, under state law, it is not a conviction. And the U.S. Supreme Court explained in part, at least, what it meant by "prior conviction" in Almendarez-Torres (1998) when it said in Jones v. U.S. (1999): "[A] prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Emphasis added).

Every court to consider Apprendi--except the Kansas Supreme Court--got it wrong by failing to take seriously what Apprendi quite literally said. Since Almendarez-Torres, the prior conviction exception has always been expressed using the term "prior conviction." A flippant opening for Ryle in the oral argument might be: "What part of 'prior conviction' doesn't the Court of Appeals understand?" Is there any reason to invite Scalia to repeat his now-famous Blakely line: "As our precedents make clear . . . ."?

Second, in light of Jones, Apprendi, and Blakely, even if the Indiana Supreme Court is not certain, it should place the burden of seeking cert. on the State and not on Ryle. It should do so because: 1) what U.S. Supreme Court precedent there is appears to favor Ryle; and 2) the issue is a state problem, and the State has the greatest interest, if any, in seeking clarification from above.

Everyone seems to be reporting that tomorrow we will get to see the California Supreme Court's BlakelyPeople v. Black. I can't wait.

And another final note unrelated to juvenile adjudications: Smylie filed a cert. petition on June 6th. (Case No. 04-10472). Maybe the U.S. Supreme Court will use Smylie to take up the issue of Blakely and consecutive sentences. The only thing detracting from the cleanliness of the way Smylie presents the issue is that the judicial fact-finding required to impose consecutive sentences is not imposed by statute but by case law.

Another Three from the Court of Appeals: Freeze, Carmona, and Dillard

They seem to be coming in threes. There were the three transfer cases from the Indiana Supreme Court back on May 10th and 11th: Patrick, Aguilar, and Nesbitt. Now the Court of Appeals has issued three together on May 18th: Freeze, Carmona, and Dillard.

I'll put the good news first. Freeze, written by Judge Barnes, is (more than?) arguably the best Blakely opinion of any Indiana appellate court to date and therefore a must-read for its discussion of how a Blakely error, once found, is to be reviewed. That is, Judge Barnes provides several noteworthy paragraphs about harmless error, mentioning Neder, Almendarez-Torre, Sullivan v. Louisiana, and Shepard in the process.

I'm not sure that the Indiana Court of Appeals ought to be guessing about the continued vitality of Neder, but it is a discussion worth having--unlike the discussion about whether Blakely constitutional errors should be reviewed under state law rules or standards that (should) have no application in the context of constitutional errors. Judge Barnes' opinion is especially interesting when put next to the similar discussion in the Washington Supreme Court's Hughes decision.

Carnona and Dillard, on the other hand, written by Judge Friedlander, are each notable for precisely one thing: a citation to Ryle, in which transfer has been granted, for the proposition that juvenile adjudications are "prior convictions" for Apprendi / Blakely purposes. Let me just quote the relevant part of Indiana Appellate Rule 58(A): "If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated . . . ." That is, at the moment, Ryle is not authority for anything.

If the panel in Carmona and Dillard had wanted to come up with new reasons to treat juvenile adjudications as prior convictions and so add to the discussion before the Indiana Supreme Court decides Ryle, that would have been even admirable.

Because the court affirmed the sentences in Carmona and Dillard, I can see no reason to have issued the opinions before a decision from the Indiana Supreme Court in Ryle--except the chase for statistics related to the number of opinions and the speed with which they are issued. If Ryle as decided by the Court of Appeal turns out to have been correctly decided, they just change the citation to the Supreme Court's Ryle opinion; if not, then Judge Friedlander has to rewrite the opinion.

It is also not true that the premature appearance of these opinions will be harmless even if the Supreme Court comes out in Ryle the way the same way as the Court of Appeals. The Supreme Court's decision in Ryle will not appear until long after the time has passed to petition for transfer in Carmona and Dillard. There will, therefore, almost certainly be petitions to transfer in both cases. That will take up lawyers' time and clients' money writing the petitions and the Supreme Court's time dealing with them one way or another. That is, a relatively brief delay in issuing Carmona and Dillard might have spared everyone the aggravation and expense of unnecessary transfer petitions without regard to the outcome of Rylein the Supreme Court.

So did a clerk for Judge Friedlander make a mistake? Did Judge Friedlander know about Ryle and order the opinions issued anyway--perhaps because the opinions had already been voted on? Did someone, clerk or judge, simply miss the grant of transfer in Ryle? My guess is option two, although it could have been either of the other two.

Maybe Carmona and Dillard will petition for rehearing in the Court of Appeals, and the Court of Appeals will sit on that until the Supreme Court issues its decision in Ryle. Rehearing petitions are (usually) quick and cheap. I do not think I have ever heard of the Court of Appeals withdrawing an opinion, but it might have happened.

Three Blakely Transfer Decisions: Patrick, Aguilar & Nesbitt

It always seems I'm out when the big cases hit. The Indiana Supreme Court issued three Blakely opinions today, all per curiam: Patrick and Aguilar, which we knew about, because they were published decisions from the Court of Appeals; and Nesbitt, a case that's been running under my radar, at least, because it was unpublished. (I wonder how many of those there are.)

The short of it is: 1) In Patrick, the Supreme Court said that the State could opt for a sentencing hearing to try the aggravators--the Court of Appeals had said no jury trial; 2) In Aguilar, as I think I said I suspected, Aguilar did not challenge his sentence until rehearing after Blakelyhad been decided; and the Supreme Court said he had forfeited the claim; and 3) Nesbitt is similar, except that the Court of Appeals had remanded for Blakely reasons sua sponte; and the Supreme Court said the Blakely claims had been forfeited.

I'll try to get links and some commentary up tomorrow. For the time being, the cases can be found temporarily (until tomorrow's cases tomorrow afternoon) at this link. They are, at first glance, not all that interesting, except as a demonstration of the court's seriousness about Smylie's highly problematic, if not outright suspect, forfeiture rule. There's still no authority but Smylie's say-so for jury trials of aggravators--and no comment on the double jeopardy or common law crime problems that may arise from treating aggravators as elements.

But I repeat myself.

It's been a suppressing day.