Morning routine well in hand, I finally get a chance to reply to my out of county colleague about Blakely and its effect, if any, on our sentencing law. My first reaction was to brush his fears off. We do indeterminate sentencing, pretty much, where the sentencing judge sets the minimum and the maximum is whatever the legislature set for that class of crime. It seems to me that there is plenty in Justice Scalia's opinion (and his previous concurrences and dissents in this area) to justify my complacency. Yes, I've received a bunch of supplemental authority briefs for cases pending in the court of appeals, but everyone of them raised the same issues in their main brief, relying on Apprendi. All but one of the supplements, so far, has done nothing beyond, in effect, whiting out Apprendi and inserting Blakely. More on the exception in a few days.
As I consider things, particularly some of the reporting from the truly excellent Sentencing Law and Policy weblog of Professor Douglas A. Berman, I begin to wonder if Blakely might not have some effects beyond the routine imposition of prison sentences. For example, restitution. Mostly of the time this is part of a guilty plea, but not always presented in detail during a trial. If a monetary loss isn't an element of the offense, we tend to downplay it, lest we be accused of improperly playing for sympathy for the victim. Also, the determination of whether to sentence a juvenile as a, well, juvenile or as an adult. The statutory rubric for the trial judge is shot through with considerations and phrases like "shall determine" that would probably start Justice S. twitching. Interesting. My out of county colleague and I are scheduled to present as mini-symposium on Blakely and its effect, or lack of same on our guidelines at the annual prosecutor's appellate forum in October, so I'll probably bore you with more than you ever wanted to know about another state's sentencing law.
Well, this all takes me up to lunch time, the best time of the day, particularly on Wednesday when it represents the hump! Half way through the week and no one's read me Miranda yet!
Lunch is always a big decision - go home or downtown or out to the north end commercial strip? Home is cheap, but pretty monotonous, downtown is not bad, easy walking distance, good selection of eating joints of all sorts (e.g. greasy spoon, Thai, New York style Chinese [whatever that is], Subway, Greek Coney, classic 'Family' restaurant, couple of bars with food, a genuine brew pub, a coffee house [not a chain], a deli, and so on) but it tends to be crawling with city and county and state employees and I see enough of them at work. The north end commercial strip is loaded with national brands (McD's, Arbys, Burger King, Wendy's', Pizza this-that-and-the-other, Chinese Buffets, Sveden House, Bonanza, another Coney [this one basic American], a brace of Darden Restaurants restaurants, a chain steak house, the mall food court, an Italian joint, a couple of non-buffet Chinese places, more Subways, and so on and so on.
So, I do what a almost always do, go home and do the soup and san or soup and salad routine. I get so tired of making decision.
After lunch, fighting the need for a post prandial nap (and let me tell you, strapping yourself to a PC and trying to do legal research after lunch is just asking for a keyboard imprint on the forehead) I work some more on the Blakely article. Then, for a change of pace, start researching our appeal on the question of whether arraignment court judges have any discretion in granting nolle prosequis without prejudice. It is clear the general trial court judges do because there is a statute that deals with indictments being nolle pros'ed, but there is substantial case law that says statutes that specify indictment don't apply to complaints, which is how misdemeanor or ordinance case are prosecuted. Interesting question, mostly because there is very little (for all practical purposes no) case law on this issue. There is ample case law on the question as pertains to indictments, but virtually nothing on complaints. I suspect this is because our arraignment court, as a court of record, has only existed for a handful of decades, having replace justice of the peace courts not all that long ago in terms of legal institutions.
As a final wrap up for the day, I knock out a pair of answers to freedom of information requests. Oh, yes. That's another little job that just sort of devolved on me - Deputy Freedom of Information Coordinator. By statute, the boss is the FOI Coordinator for the office, but he can appoint a Deputy - i.e. a minion, that is to say, me. The problem with FOI requests to the prosecutor is that most of our file is attorney work product and is exempt by court rule. That, and the statute requires a specific description of the 'document' or 'documents' the requester is looking for. Way too many requests are on the order of 'I request 'the prosecutor's file on the case against my son [name]' Today, I have one of those and one for a case that is pending on direct appeal with a court appointed attorney. Two polite rejections, one for lack of specificity and one passing the baton to the appellate attorney and I'm out of here!