District Court dynamics

I have heard from many about interesting efforts by prosecutors to deal with Blakely, and about interesting responses from defense attorneys and district courts to these efforts. Though Judge Cassell’s written testimony to the Senate Judiciary Committee (available here) provides the most extended account of different Blakely coping efforts, I will try to provide examples of interesting rulings that come my way. So, here I provide a copy of a recent ruling in US v. Roberts by SDNY US District Judge Lewis Kaplan — who, by the way, I was lucky enough to have in his pre-judge days as my “partner buddy” while a summer associate at Paul, Weiss in NYC. In the attached ruling, Judge Kaplan denies the government’s application to submit special interrogatories or special verdict to the jury, and here’s a flavor of his reasoning:

I do assume I have discretion to bifurcate and take a second and special verdict with respect to sentencing. The question is whether I ought to do it in the exercise of discretion. The argument for doing it, it seems to me, is essentially that it is like chicken soup. It may not cure the cold but it isn’t going to make it any worse [especially in a case where such an approach might be easily employed]…. But at the end of the day, it seems to me that to have a system in which special verdicts would be taken on sentencing factors in simple cases but not in complicated cases is just exceptionally unfair, exceptionally undesirable and certainly not something that any policymaker to date has indicated a willingness to adopt.
In consequence, I just feel that it would not be an appropriate exercise of my discretion to start down that road by taking a special verdict in this case simply because it is a simple one and it isn’t hard to do, and thus, in some way lend some credence to the notion.

The whole transcript is a valuable read, and can be downloaded here:
Download kaplan_sdny_blakely_ruling.wpd