No waivering on waiver

With all the big news coming from federal circuit courts and even some state courts this week, it has been challenging to keep up with the still steady flow of federal district court decisions on Blakely. Throughout the weekend, I hope to spotlight some issues gurgling through important district court opinions (and I may also try to do a rough head count of district court rulings concerning constitutionality and severability).

For example, the decision of US District Judge Joseph Bataillon in US v. Terrell, 2004 US Dist. LEXIS 13781 (D. Neb. July 22, 2004), merits mention in part because of its thoughtful discussion of certain important waiver issues. In footnote 3, Judge Bataillon asserts that:

a defendant [may] waive the right to a jury trial and to consent to factfinding by the court, [but such] judicial factfinding must still satisfy the standard of “proof beyond a reasonable doubt.” Simply put, the standard of proof is not the defendant’s to waive; it is a burden placed on the government, without which a conviction cannot be obtained.

In addition, Judge Bataillon in the same opinion rejects the claim that a pre-Blakely plea agreement waives of the right now to raise Blakely issues:

the court rejects the government’s contention that the plea agreement precludes the defendant from making [Blakely] objections. At a minimum, the defendant must understand the “critical” or “essential” elements of the offense to which he or she pleads guilty. The defendant could not have knowingly waived rights that neither he nor this court knew he had before the Blakely decision.

Though the fate of Terrell might be in question following the Eighth Circuit’s ruling in Mooney, the Terrell decision merits praise for spotlighting and resolving some of the on-going waiver concerns.