Law Professor Doug Berman has a "Deep Throat" providing access to DOJ memos on Blakely. We put the first one here. Prof. Berman just got three more, and you can download them from his Sentencing Law and Policy blog .

• Download blakely_sample_brief.wpd
  
• Download blakelysentmemoDMR.wpd
  
• Download CABresponse2.wpd
  
• Download ramirez-martinez.mem.sentencing.blakely.wpd

It's official! We got a "formal notice" in the mail today that TalkLeft has been allocated press credentials for the 2004 Democratic National Convention in Boston. We said this morning we were ecstatic that Kerry selected John Edwards as his running mate, and now we are doubly excited that we will be able to cover the events live and bring you some of the behind the scenes info the major media won't cover--and some news with attitude.

We could definitely use your help with expenses. It will cost us between $2,000.00 and $3,000.00 for airfare and hotel (see comments), and we'd like to raise that amount since we'll be losing a week at work. If you're in a position to assist, you can do so here via PayPal. If you'd like to donate anonymously, use Amazon. Both are secure. Many, many thanks.

Update: The DNCC's official blog, BostonDParty, is here--written by Matt Stoller and Eric Schnure.

Don't miss Pressthink's article by Jay Rosen here. Our update is here.

Jeffrey Fisher is the 33 year old Seattle, WA defense lawyer who won both of his cases before the Supeme Court this year--Blakely v. Washington and Crawford v. Washington. One will revolutionize sentencing and the other is changing the rules on what evidence can be admitted at trials.

Here's a profile of Mr. Fisher.

Crawford v. Washington, is being heralded as a legal landmark on the right to confront one's accuser. It is the kind of turning-point decision that for years to come will be raised in courtrooms across the nation. The other, Blakely v. Washington, has set off a national debate over the constitutionality of certain enhanced sentences and sent the best legal minds, in Oregon and elsewhere, scrambling for answers.

Among lawyers, Fisher's accomplishment is stunning. And it's even more unusual, perhaps, because the appellate lawyer has only practiced law since 1999. The 1997 graduate of the University of Michigan Law School joined the powerhouse law firm of Davis Wright Tremaine in Seattle almost five years ago after clerking for U.S. Supreme Court Justice John Paul Stevens.

There's lots more, go read. Also read today's editorial in the LA Times, Enough Abuse for Everyone:

Update: The Senate Judiciary Committee will hold a Blakely hearing July 13. Sen. Orrin Hatch will preside--not a good sign.

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Original Post

Courtesy of Law Professor Doug Berman of the blog Sentencing Law and Policy, we now have access to the memo DOJ circulated Friday (pdf) to federal prosecutors with Blakely guidance. The opening paragraph reads:

The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.

Update: Here's another key paragraph, instructing prosecutors what to do if courts say Blakely applies to the federal sentencing guidelines:

Monday is the day. The DNC will announce which bloggers will get press credentials to cover the Democratic convention in Boston. We're keeping our fingers crossed we'll be chosen.

The time has come to officially credential bloggers. Starting tomorrow, we will be notifying the bloggers who applied for credentials and letting them know if they’ve been accredited. It took us a little longer than we hoped, but then again, we got more applications than we imagined. The response was incredible. So I want to thank all of you. I know you’re all used to getting and sharing information as fast as your ISP allows, but thank you for the patience and understanding that is often a prerequisite in politics when doing something meaningful for the first time.

Boston is gearing up for the convention. All court trials have been canceled.

The trials were canceled because police won't be available to testify and jurors and witnesses might find it difficult to get into the downtown area during the July 26-29 convention, the Boston Sunday Herald reported. "People are simply not going to be able to get around," court administrator Dana Leavitt told the Herald. Leavitt said superior courts in Boston and Cambridge would be open for bail reviews and emergency matters, such as restraining orders and injunctions, but not much else. Grand jury sessions will also be cancelled that week.

Professor Berman of Sentencing Law and Policy reports on two post-Blakely decisions in New York, one from the Eastern District, US v. Medas, 2004 U.S. Dist. LEXIS 12135 (E.D.N.Y. July 1, 2004) in which:

District Judge I. Leo Glasser discusses Judge Cassell's Croxford opinion and states that he is "driven to arrive at the same conclusion [that the FSG are unconstitutional] for the reasons stated by Judge Cassell in a language that is eloquent in its simplicity and clarity."

Judge Glasser discusses this issue in a fascinating context. Apparently he has a jury deliberating in a criminal case now, but "immediately after the jury retired to deliberate the government submitted a 20 page Supplemental Verdict Sheet with a request that it, too, be provided to the jury. That Supplemental Verdict Sheet, the government urged, was the legitimate offspring of Blakely." After explaining that the government's "pre-Blakely indictment does not allege the enhancing sentencing factors the government now requests be submitted to the jury post-trial" and that "no mention was made of those factors during the trial," Judge Glasser refuses to submit the Supplemental Verdict Sheet to the still deliberating jury.

The second decision is from the Southern District of New York:

Sentencing Law and Policy reports:

Jason D. Hawkins, AFPD in the Northern District of Texas was kind enough to send along his Supplemental Objection to a Presentence Report that he just filed. (In Word); Wordperfect version is here. I've already found available a sample Defendant's Memorandum in Aid of Resentencing (html) courtesy of The Office of the Federal Public Defender for the District of District of Columbia.

If you are going to download the Word or Wordperfect versions of documents, we've found it helps to have the program already open on the computer before downloading. We prefer Wordperfect, and love the new WP12 because it will save documents in Word or WP and opens Word documents easily. It also handles .pdf docs which we hate because they are slow to load and slower to print and a pain to scroll through and often "locked" so you can't cut and paste from them.

Bump and Update: NACDL has added a special Blakely session to its superb San Francisco CLE program on Thursday, July 29 at 4PM . It will address the implications of Blakely on state and federal sentencing guidelines. The panel will be moderated by Carmen Hernandez. Panelists include: Jeffrey Fisher, Peter Goldberger, Steve Kalar, and others. Sign up now!

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The National Association of Criminal Defense Lawyers (NACDL) has created a Blakely v. Washington Resource page. It is keeping track of post-Blakely decisions and news, and has links to the major weblogs covering the case. If you're a defense lawyer, you should bookmark it now.

Update: If you've missed TChris posting the past few days, he's been busy writing a Blakely brief for the 7th Circuit. He'll be back soon. He recognized the importance of the Blakely decision at the time of oral argument.

Here's some of the Post-Blakely court action to date. Law Prof Doug Berman's Sentencing Law and Policy is totally on top of it. And say hello to the Blakely Blawg .

Utah is the big one of course, U.S. v. Croxford. There is a federal W. Virginia decision in U.S. v. Shamblin. Sentencing Law and Policy reports:

Judge Goodwin concluded that a defendant involved in significant drug operation --- who would have received a life sentence before Apprendi and 20 years before Blakely --- could only now be sentenced to a term of 12 months! Interestingly, in footnote 11 of this opinion, Judge Goodwin expressly rejects Judge Cassell's conclusions in US v. Croxford about the right way to sentence now in light of the conclusion that Blakely applies to the federal guidelines.

Then, also from SL&P, here's a partial transcript from a Maine federal sentencing on June 28, 2004 in U.S. v. Fanfan:

The federal judge that sentenced the D.C. 'Tractor Man' to six years in prison last week has signed an order reducing his sentence to 16 months due to the Supreme Court's Blakely decision. He was released from prison today.

Still wearing his navy blue jail uniform, Dwight W. Watson was set free tonight, nearly 16 months after driving his tractor onto the Mall and making a phony bomb threat in a protest that paralyzed parts of the city.... Watson's release came a few hours after a federal appellate court rejected a last-chance effort by the Justice Department to keep him locked up. Federal prosecutors had been scrambling since U.S. District Judge Thomas Penfield Jackson cut Watson's sentence to 16 months. With credit for good behavior, Watson's time was up.

Prosecutors contended that there was no reason for Jackson to act, arguing that the judge had misinterpreted a Supreme Court ruling issued June 24, a day after Watson's sentencing. Jackson said the decision, handed down in an unrelated case, convinced him that he had unjustly added time to Watson's sentence in a way the Constitution did not allow. Prosecutors wanted Watson to stay in jail while they appealed Jackson's ruling, but the appellate court turned them down.

Congrats to A.J. Kramer, Watson's federal defender.

Big news in the Kobe Bryant case. Mark Hurlburt, the elected DA who made the decision to charge Kobe, has announced he won't be trying the case, but leaving it to the deputy
DA's. He's decided his county needs him to do administrative work.

While its not unusual for elected DA's to spend more time on administrative matters than trying cases, they often try the high profile ones. Here, the citizens of the 5th Judicial District are paying Hurlburt to be the prosecutor--yet Hurlburt has decided to spend the district's money importing two prosecutors from Boulder and Jefferson County. If Hurlburt were really concerned about conserving the district's resources, he'd send the two prosecutors back and try the case himself.

On the other hand, we commend Hurlburt for recognizing there are other cases and people in his district in need of prosecution services and that far too many of the district's resources, both in time and money, have been spent on Kobe's case. How many prosecutors does it take to try a rape case?

The Denver Post has more here.