The New Jersey arguments raised Blakely and Shepard in a number of different contexts, and I found the arguments truly fascinating. I have many pages of notes that I will try to reproduce here later this afternoon. (I wonder if anyone knows if the video is archived anywhere so that those who missed the arguments live can watch?)
Immediately, Smylie got several mentions fairly deep into the arguments. I think the State did a pretty good job distinguishing Indiana's statutes, at least, if not the sentencing scheme taken as it actually operates, from New Jersey's.
The State was openly arguing that the court Booker-ize New Jersey's sentencing statutes by reading "shall" to mean "may," which suggestion by Justice Dickson at the Smylie and Heath arguments pretty well shocked me. But after the remedial opinion in Booker, why not?
Abdullah educated me that New Jersey's sentence for murder, unlike all other sentencing provisions except for car jacking, is a pure range with no presumptive: 30 years to life. My guess is that will escape Blakely.
The court's questions from all sides to all parties were really quite wonderful and a great deal more probing than the questions in Heath and Smylie. (All comparisons are invidious, and I do not mean that as a criticism of the Indiana Supreme Court. After all, the New Jersey Supreme Court had three quite different cases before it (chapeau for taking three quite different cases at once) and had the benefit of being able to watch the Heath and Smylie arguments, not to mention the benefit of the Smylie opinion, before confronting today's cases.
On the basic questions, it looks like the court was pretty hostile to the State's claim that Blakely doesn't apply to New Jersey's general sentencing scheme. Most of the time on remedy was spent on Booker-izing the statutes. The court seemed quite concerned about how messy jury sentencing would be and whether the legislature would have intended the messiness.
Almost no time was spent on waiver / forfeiture.
More anon.
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