Blakely & Consecutive Sentences: Oregon v. Ice

Oregon v. Ice was argued in the U.S. Supreme Court today. Does Blakely apply to consecutive sentences if the finding of additional facts are required to impose sentences consecutively?

The transcript of the argument is here (PDF). Doug Berman's take on the case is here. (Sentencing Law & Policy). Kent Scheidegger's take is on the argument is here. (crime & consequences).

I have not read the transcript yet. I am also agnostic on the subject.

Indiana still requires the finding of additional facts to impose consecutive sentences, even after the 2005 statutory amendments that did in Blakely's Indiana sojourn.

Smylie, of course, said that Blakely does not apply to consecutive sentences. So if Ice wins, what happens here? Probably almost nothing. That the Indiana Supreme Court will have gotten it wrong won't make much difference to almost all the Blakely claimants. Their cases are final. And as I am thinking about it now, I'm not sure how a Blakely claim regarding consecutive sentences can be revived either by post-conviction proceeding or by fed habeas. I'll have to think about that for a while more, though.

Of course, the game would change considerably if the Supremes got around to saying that Blakely was fully retroactive. In Indiana at least, it should be. Blakely raised the standard of proof for aggravating circumstances from practically nothing to beyond a reasonable doubt. That is, from my particular corn field, Blakely looks a lot like In re Winship for sentencing facts. That should get retroactivity for Blakely by even Indiana's version of Teague.

ISC Oral Argument Tomorrow: John W. Miller v. State

9:45 A.M, tomorrow, Thursday, August 28th. The live link (RealPlayer) will be up a few minutes earlier.

This is a shackling case involving a voluntary manslaughter conviction. John Pinnow is arguing it for Miller. John is great.

Joby Jerrels is the DAG on the case. I haven't seen any of his arguments.

Here's the court's blurb on the case:

The LaPorte Circuit Court ordered that Miller be placed in restraints during his trial and the Court of Appeals affirmed in an unpublished memorandum decision, Miller v. State, No. 46A04-0612-CR-696 (Ind. Ct. App. Apr. 15, 2008). Miller has petitioned the Supreme Court to accept jurisdiction over the appeal.

I would be willing to bet that the recent 7th Circuit opinion in Wrinkles v. Buss, No. 05-2747 (7th Cir. 8/12/08) plays a part in the argument. Wrinkles is a death case out of Indiana. Three to two, the 7th affirmed the denial of habeas relief on a shackling claim. Judge Rovner's dissent is compelling. And, in any event, the Indiana Supreme Court's shackling opinion from 2001 only just escaped, thanks to some fancy footwork by Judge Kanne that I find merely a tortured reading of Justice Rucker's opinion.

Sealed Cases & Oral Argument

Marcia Oddi at the Indiana Law Blog has been posting about the cases that the Clerk has sealed and that have also disappeared from the docket. (Here, here, and here, for example.) One of my cases has suffered this fate.

I have been listening to oral arguments--especially those in the Indiana appellate courts. Back on March 25th, the Court of Appeals held argument in Allianz Insurance Company v. Guidant Corporation. (Direct link to argument; RealPlayer required).

It is very difficult to figure out what this case is all about. But the argument begins over whether the briefs were properly sealed and what information is so sensitive that it cannot be public. Chief Judge Baker seems pretty skeptical confronted with briefs, the only public portion of which seems to be the table of contents and proof of service.

It sounds like the parties agreed to keep it all hush-hush, because if the world knew how much other litigation there is involving the parties--and this information is in the briefs, presumably--then the businesses would suffer.

I had a case that I requested sealed once upon a time. But that was because of some allegations about someone not a party to the litigation that I didn't think needed to be aired. I simply filed the brief in a sealed envelope with a motion to have the case sealed pasted to the envelope. No green paper; no filet of brief.

The first 15 minutes or so of the argument about the secrecy is pretty interesting. I can't make much of the rest on the merits.

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?

Oral Argument about Blakely and Belated Appeals

If you read the Indiana Law Blog--and who doesn't?-- then you probably saw this item about an oral argument in the Indiana Supreme Court about Blakely and belated appeals. Well, the argument did happen last week. And although I did not make it into the attorney list in the web description, I did do about 15 minutes of the argument.

The irony is that my 15 minutes of fame had nothing to do with Blakely, because my client's case (Moshenek in the Court of Appeals) had nothing to do with Blakely.

And here's how it happened. A friend of mine became a judge. I was "babysitting" the case on transfer. Suddenly I find myself going to the Little Big Top (SCOTUS has to be The Big Top) in a case not mine and about which I know almost nothing, on an issue I know almost nothing about (Post-Conviction Rule 2 and belated appeals), and I don't get to talk about Blakely--the other guy does. (And John Pinnow did a brilliant job of it too, I think.)

Christina Klineman had the unenviable job of doing rebuttal for three cases not her own in the four-case scrum. What a job she did.

Anyway, here's the direct link to the argument. (RealPlayer required and will open on clicking the link.) I think I spoke loudly enough for the court. The microphone is another matter. John Pinnow does the first 17 minutes or so about Blakely. I do the next 15 about Post-Conviction Rule 2. The State does its 40 minutes. Finally, Christina Klineman cleans up after the mess left by the State.

From total ignorance, I might have become the world expert at the moment on Indiana Post-Conviction Rule 2. And I hope the Indiana Supreme Court doesn't do anything to change that. If there was any point I tried to get across that was not specifically related to my client's case, it was the Post-Conviction Rule 2 is older than dirt--actually a 1970 codification of the common law--and that there is no reason Blakely should deform what has been the uniform analysis under the rule.

Also, as I said to the court, Post-Conviction Rule 2 is an odd sort of creature. There is a fundamental constitutional right to an appeal in a criminal case. It's right there in the Indiana Constitution. Post-Conviction Rule 2 puts the burden, the cases say, on defendants to prove that they did not waive their right to an appeal. The cases say that; the rule doesn't. And I cannot think of another context in which the law requires someone to prove that they did not waive a fundamental constitutional right. It (almost) always works the other way 'round.

Here are the links to the Court of Appeals opinions in the other cases: Gutermuth, Boyle, and Medina. The Supreme Court has granted tranfer in Gutermuth already. Transfer is pending in the others. Medina was NFP.

For some background, here are links to my previous posts about what I called Blakely "pop-up" appeals:

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite (10/19/06)

Baysinger: Another Blakely Pop-Up Belated Appeal (10/13/06)

Gutermuth: The Blakely WayBack Machine (6/8/06)

And a final note. When you start into the history of the law, all kinds of things pop up--not just Blakely appeals. Possibly the best bit of irrelevance I stumbled upon was Sanders v. State, 85 Ind. 318 (1882). Turns out that Mr. Sanders confessed to the murder of his wife on the advice of his lawyer. The alternative was a lynch mob. Pretty good advice that lawyer gave. Here's a snippet from the facts:

The facts stated and proved are these: In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county-seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county-seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: "As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved."

The Indiana Supreme Court stepped up to the plate and reversed Mr. Sanders conviction, even though procedurally there was no real way to do it:

It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance.

The court found itself in a pickle, because it could not grant a new trial where there had been no trial. An appeal would have been useless with the confession in the record. So, if I read the case correctly, the Sanders court pulls a writ of error coram nobis out of the English common law hat--with some modifications--and saves the day. And from Sander on, that was post-conviction relief in Indiana until the Post-Conviction Rules.