07 September 2004

Blakely Briefs: Give 'em Hell

Over at SL&P, Professor Berman is shredding the briefs filed by the government and its amici:
When did Judge Martin enter the Bizarro World?

Great brief, wrong case: the three Senators' brief

Pulp Fiction
As you all will have surely noticed, since this post I really haven't been posting all that much about Blakely. All of what I have posted can be read by clicking "Blakley Roundup" under punishment in the right column.

Part of the reason I have stopped is that there is no way I can keep up with all the Blakely happenings and filings as well as SL&P while I spend my days in court, try to get my firm webpage up and running, and fiddle around with things like trying to get video blogging to work. Part of it is just disgust. A government which proclaims one position in briefing Blakely and now argues exactly the opposite; judges who put the "rights" of the prosecutor over the rights of the Accused; appellate courts doing their best to quash it all and ignore Blakely; courts and the government appearing to attempt manipulation of the choice so it's all or nothing; &cetera.

I've been thinking about the anti-Blakely (aB) positions for the last couple days since Professor Berman started his posts. Something about the arguments has been plucking at my brain - the form just seems so familiar. Then it hit me this morning. What the aB arguments remind me of are the anti-Exclusionary Rule (aE) arguments. More specifically, the aB arguments remind me of the options the anti-Exclusionists offer in stead of exclusion (police boards, suing officers, slight sentence reductions). Both aB and aE arguments make theoretical sense but lack any concept as to how things work in the real world. The purpose of both is to give theoretical cover to acts which in practice violate the constitution. It's asking the court to accept Plessy style reasoning in a Brown world.

1 comment:

stephen f. becker said...

I have a Blakely stradle case (sentence imposed prior to Blakely and appeal pending) where I raised Blakely issues in my principal brief to the Third Circuit. The government responded with a NINTY page (no exageration) argument, most of which was clearly from DOJ in DC. The government's brief has 5 main subsections:

I. not plain error (I objected to enhancement but not based on Sixth Amend)

II. Def agreed to judicial fact-finding in pre-Blakely plea agreement

III. Def admitted to facts supporting the enhancement

IV. Blakely not applicable to Guidelines

V. Blakely not applicable to career offender determination

Does anyone have a reply brief responding to such a government brief?