New variations in Blakely coping

Peter Goldberger reported “from the trenches” late last night that “U.S District Judge Jerome Simandle (D.N.J.) is calling the jury back in, following guilty verdicts today, for a ‘sentencing trial’ starting next week, over defense objection that there is no statutory or procedural-rule basis for the proceeding, and the matters to be tried were not charged in the indictment.” He also provided this link to an article discussing the case.

On another front, Ken Lammers over at CrimLaw is reporting “rumors and speculation [suggesting] that in Virginia, AUSA’s are adding Blakely waivers to their plea agreements. However, if the grapevine is correct, while some judges are accepting the waivers, a larger number are refusing them.”

UPDATE: As you’ll see from the comments, the use of “Blakely” waivers in the Eastern District of Virginia has been confirmed. In fact, here from CrimLaw, is the text of the waivers being sought by federal prosecutors:

I am also waiving any right I may have for a jury determination of any and all facts relevant to the application of any Sentencing Guideline factors by the United States District Judge. I agree the District Judge should make the Sentencing Guideline determination using the preponderance of the evidence standard. I understand that by signing this plea agreement I waive any right to a jury determination of sentencing factors that may exist under Blakely and Apprendi, and any case interpreting these two Supreme Court decisions.