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One Arizona Justice Gets It: Blakely & Unenumerated Aggravators

Long, long ago, when wishing still helped, and Blakely was new and full of promise (as well as threat), I picked up on the astonishing, but correct, observation by the Vera Institute in this September 2004 piece that Blakely should / could mean the end of using aggravating circumstances not specifically defined by a statute. (See this post on aggravating circumstances and common law crimes.) And I included this as one of the 12 questions that I thought Smylie should address. (It didn't.)

I don't believe I have seen the issue discussed in an opinion before.

Well, on December 3rd, the Arizona Supreme Court issued State v. Price, Case No. CR-06-0435-PR. The majority opinion reverses a sentence because of Sixth Amendment problems created by Blakely's application to Arizona's sentencing system.

Justice Hurwitz wrote a concurrence in Price that addresses precisely this issue:

Price raised only Sixth Amendment arguments on appeal and the Court’s opinion thus appropriately turns only on the denial of a right to jury trial. But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the “catch-all” is the only factor that makes a defendant eligible for a sentence beyond the presumptive term.

. . . .

A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the “aggravated crime,” of precisely what is proscribed under the critical “catch-all” element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus “anything else the court or the state may someday later find relevant.”

Slip op. at ¶¶26-29. (The Arizona Supreme Court numbers paragraphs, which has to be the future to accomodate web citation.) Because Price did not raise the 14th Amendment Due Process problem, Justice Hurwitz is "content to leave final resolution of this conundrum to another day."

Doug Berman calls the "conundrum" "another tough Blakely nut" in his post on Price. I don't think it is either a conundrum or a tough nut. It's just an issue that no one has raised. The focus has been entirely on Blakely's Sixth Amendment implications. Even Price didn't raise the issue in his appeal. And he obviously had at least one justice waiting to return serve.

With the April 2005 amendments to Indiana's sentencing statutes and their evisceration of Blakely in Indiana well behind now, one might think that this issue is of purely academic interest among Hoosiers. It's just possible, though, that the 14th amendment common law crime claims that were not raised in direct appeals would provide some fertile post-conviction ineffective assistance claims.

Thanks to Doug Berman's work and his Blakely in the States mashup on Sentencing Law & Policy for making it so easy to catch up and keep up.

Question Presented in Edwards

Here's the question presented from the order granting cert. in Edwards:

May States adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial?

Cert. Granted in Indiana v. Edwards

The U.S. Supreme Court granted the State's cert. petition in Indiana v. Edwards Case No. 07-208. (Link to SCOTUS docket here.)

The issue in the case is whether someone who is competent to stand trial is therefore competent to represent themselves. The Indiana Supreme Court said, "yes." Does anyone think that cert. was granted to affirm?

The decision of the Indiana Supreme Court from last May in Edwards v. State is here (written by Justice Boehm). The Court of Appeals decision (written by now-Chief Judge Baker), which the Indiana Supreme Court vacated is here. But this is a case in which the ISC granted transfer to make the holding its own. It did not disagree with Judge Baker.

In the category of "Be Careful What You Wish For," Justice Boehm wrote in Edwards:

The State responds that more recent authority casts doubt on the continued vitality of the authorities on which Edwards relies. We agree that this contention has some force, but we conclude that we are bound by United States Supreme Court precedent and that the State must address its contention to that Court.

Guess the Indiana AG's Appeals Division took him up on the dare.

The Indiana Supreme Court's assertion that is bound by SCOTUS precedent should be taken with a grain of salt. On at least two occasions, it has explicitly said that is not bound by Jackson v. Virginia. A federal district court has said that those decisions are "unfortunate." Well, yes.

I'll have to look into whether this is a first: a SCOTUS cert. grant in a criminal case on a petition by the State.

Bassett: Headphones for All Prosecutors

For an eye-opener, go have a listen to yesterday's oral argument in Bassett v. State. (RealPlayer required).

Maybe I've drunk too much defense Kool Aid, but I was fairly shocked to see the Indiana Attorney General's Office argue with a straight face that it's just fine for a prosecutor to listen to nine pretrial jail tapes of telephone conversations between a lawyer and his client--and in an LWOP case--without disclosing the fact to the defense or the court . That he had done so just happened to pop out at a bench conference toward the end of the trial.

At about 34 minutes into the argument the deputy A.G. actually says it would be just fine for a prosecutor to listen to such calls with the intent of discovering the defense's strategy or other information that would be useful at trial. A defendant should have to show harm, according to the DAG.

That said, having sobered up from the Kool Aid a bit by taking a tour of a number of cases, I am shocked that the authority on whether one has to show prejudice in such circumstances is remarkably split. The leading U.S. Supreme Court case relied upon by Basset during the argument is Weatherford v. Bursey, 429 U.S. 545 (1977). That was a § 1983 case. It says that once there is an intentional invasion of the attorney-client relationship, a Sixth Amendment violation is established if there is a realistic possibility of benefit to the State or harm to the defendant. This has been watered down in many circuits in various ways.

The best description of the split comes from Justice White's dissenting opinion from the denial of cert. in Cutillo v. Cinelli, 485 U.S. 1037 (1988):

In Weatherford v. Bursey, 429 U.S. 545, 558 (1977), we held that establishing a violation of a defendant's Sixth Amendment right to counsel requires a showing of “at least a realistic possibility” of prejudice to the defendant or benefit to the prosecution. See also United States v. Morrison, 449 U.S. 361, 365-366 (1981). This case presents the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information. The First Circuit held that where confidential defense strategy information is transmitted to the prosecution and the defendant makes a prima facie showing of prejudice, the burden then shifts to the prosecution to prove that there was no prejudice to the defendant from the disclosure. Cinelli v. City of Revere, 820 F.2d 474, 478, 480 (1987); accord, United States v. Mastroianni, 749 F.2d 900, 907-908 (CA1 1984). This position conflicts with the approach of other Circuits of requiring the defendant to prove prejudice. United States v. Steele, 727 F.2d 580, 586-587 (CA6); United States v. Irwin, 612 F.2d 1182, 1186-1189 (CA9 1980). It also conflicts with a third position that once a defendant shows that the prosecution has improperly obtained confidential defense strategy information or has intentionally placed an informer in the defense camp then no showing of prejudice is required, for those acts constitute a per se violation of the Sixth Amendment. United States v. Costanzo, 740 F.2d 251, 254-255 (CA3 1984). Because of these conflicting approaches among the Circuits, I would grant certiorari.

I don't know what a "prima facie showing of prejudice" would look like in the circumstances of Bassett's case. During the argument, Justice Boehm made the point that to get into the question of prejudice, the privileged communications would have to be further revealed. I don't think that is much of a problem. Once the prosecutor had listened to the conversations, the privilege was blown--though maybe not.

More difficult would be trying to figure out what use was made of the information. You'd have to listen to the tapes, read the trial record, talk with the prosecutor, and then somehow figure it all out. If the phone conversations were just about the weather, then maybe the process would be easy. The actual usefulness to the State of any discussion between client and lawyer of trial strategy, witnesses, etc., would be extremely hard to parse out, I should think.

And all of this gets away from the exact words of Weatherford: "the realistic possibility of injury to Bursey or benefit to the State . . . ." Eavesdropping, albeit after the fact, though before trial, on nine phone conversations would seem to create quite a realistic possibility of benefit to the State without having to get into all the ugly details and assessments.

Given Weatherford's explicit language, even with the AEDPA, the case seems pretty well teed up for habeas.

I certainly hope the Indiana Supreme Court does not come up with the idea that phone calls to jails and prisons are not privileged, because everyone knows they may be recorded. The rule should be that they are privileged even though they may be recorded. Any other rule will make criminal defense practice almost impossible--as Joe Cleary pointed out today in the argument. I haven't looked up fed law on that subject. Maybe someone else knows what it is.

Comments?