Reports about Blakely from the field

I am pleased that various folks in various settings are starting to e-mail me with formal and informal reports about efforts and plans to deal with Blakely. Keep those cards and letter coming (and let me know if I am have your permission to post your reports). You can find here a post reporting the Blakely “word on the street” in one jurisdiction. In addition, I received an important and helpful e-mail from Jeffrey L. Fisher, the lawyer from Davis Wright Tremaine LLP, who won Blakely’s case in the Supreme Court. Here’s what he has to say:

One thing I think it’s important for people to know is that, at least as far as the states are concerned, we’re not in uncharted waters. Kansas has already been here, and it provides a useful source from both a legislative and a judicial point of view. Following the Kansas SCt’s decision in State v. Gould, 23 P.3d 801 (Kan. 2001), holding that Apprendi applied to facts supporting upward departures under its state guidelines, the Kansas legislature amended the guidelines to comply with Apprendi. See Kan. Stat. Ann. 21-4716, 4718. (In fact, Justice Scalia cited this legislative response in the Blakely opinion.) These amendments may provide a helpful template for legislatures and commissions in guideline states; the word from Kansas is that they work just fine.

In addition, and perhaps even more helpful to lawyers out there, the Kansas courts following Gould have developed a rich body of law concerning how to deal with defendants who received upward departures before Gould came down. There are cases dealing with defendants who pleaded guilty without challenging the aggravator, e.g, State v. Pruitt, 60 P.3d 931 (Kan. 2003)State v. Cody, 35 P.3d 800 (Kan. 2001)State v. Cullen, 60 P.3d 933 (Kan. 2003)State v. Johnson, 55 P.3d 927 (Kan. App. 2002), and many more permutations. There also are cases addressing how courts should proceed until there is a new legislative procedure for finding aggravating facts that complies with Apprendi. See, e.g., State v. Kessler, 73 P.3d 761, 771-72 (Kan. 2003)State v. Santos-Garza, 72 P.3d 560 (Kan. 2003).