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.