Who would have thought? Conservative, Bush appointee Paul Cassell, who is now a federal judge in Utah, has found the U.S. sentencing guidelines to be unconstitutional in their application.

Law Professor Douglas Berman, who writes the new law blog, Sentencing Law and Policy, says Cassell is the first federal judge to officially declare the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford.

A Utah judge on Tuesday declared federal sentencing guidelines cannot be constitutionally applied in a child pornography case, taking the lead in a national debate sparked last week by the U.S. Supreme Court. "I take no pleasure in striking down the guidelines today . . . but the court's fundamental obligation is to uphold the Constitution," U.S. District Judge Paul Cassell said in declining to follow the guidelines implemented by Congress more than 15 years ago.

Though he was careful to say his decision applied only to the case at hand, Cassell later noted in a 39-page order the "potentially cataclysmic implications of such a holding." In his written order, Cassell announced he intends to continue issuing sentences without regard for the guidelines "until the constitutionality . . . has been definitely resolved by the Supreme Court." However, he said he will also issue a "fallback sentence" to avoid resentencing each defendant if the guidelines are ultimately found to be constitutional.

We hear federal judges all over the country are continuing (in layspeak: postponing) sentencing hearings as a result of the Supreme Court decision in Blakely this week (see here and here.) No one yet is certain how to apply it. In our federal court (Colorado), we have it on good authority that the following colloquy occurred yesterday between a judge and a terrorism prosecutor:

The Judge called Blakely a "cataclysmic event" in criminal law. He told an AUSA from the terrorism section in DC to read it on the plane ride home. He opined that "If the turbulance doesn't make you toss your cookies, Blakely will."

[hat tip DL, Esq.]

Update: Sunday's New York Times examines the impact of the decision here.

It's official...Jury selection in Kobe Bryant's trial on a sexual assault charge begins August 27. The Judge expects jury selection to last four to five days. The trial likely will last between two and four weeks.

In other case news, the court reporter made a big mistake and sent transcripts of sealed hearings to 7 media outlets. The Judge ordered the media to destroy the transcripts and not distribute them.

The trial should be over by the beginning of basketball season. Reporters have been asking us if we think there is any chance of a plea bargain. In our view, the only deal that would be acceptable would be a misdemeanor plea to a non-sex offense. The only way we can see that being put on the table is if the Judge were to rule Kobe's statements inadmissible --and the accuser's contemporaneous sexual activity and medical history admissible.

The setting of a trial date suggests to us that several key rulings, including on the three issues just mentioned, will be released shortly. More hearings are set for July 19 - 21.

Statement of Barry Scheck, President-Elect, National Association of Criminal Defense Lawyers on today's Supreme Court decision in Blakely v. Washington:

Beyond a doubt, today’s decision in Blakely spells the end of sentencing guidelines -- as we know them. The decision does not represent a step backward from the goal of sentencing reform, but a great leap forward, because it stands for the proposition that no defendant in a U.S. court will be punished for an unproven crime.

The key issue in Blakely was that the judge found a fact, after the defendant’s plea, that increased his sentence by almost three years. It has always been NACDL's position that facts that substantially increase a defendant's sentence should be admitted by the defendant at his guilty plea or found by a jury beyond a reasonable doubt. Today’s decision is a logical application of that principle. As Justice Scalia said in the opinion of the Court, it is too much to believe that the National Association of Criminal Defense Lawyers was “duped” into taking the wrong side on such an important issue as fairness in criminal proceedings.

In NACDL’s friend of the court brief, authors Adam Steinman, Sheryl Gordon
McCloud and David M. Porter wrote that "failing to apply Apprendi to exceptional sentences upward creates a situation where a defendant may be punished for a crime that no jury has considered -- much less delivered a verdict of conviction -- and for which the ... reasonable doubt standard has not and cannot be met."

Defendants got one win today from the Supreme Court, and it's a pretty big one. Many states around the country have sentencing schemes which call for a certain sentence or range of sentence for an offense unless the judge determines that there are aggravating factors--in which case a greater sentence can be imposed. The Supreme Court today ruled that for the Judge to decide on the aggravating factor, rather than a jury, violates a defendant's Sixth Amendment rights under its Apprendi decision (the same Apprendi it decided today did not apply retroactively in death cases.)

Here's the syllabus of Blakely v. Washington (html). The text of the opinion (html) is here. It was written by Justice Scalia. The basic facts at issue:

Two days of hearings wrapped up Tuesday in the Kobe Bryant case. No trial date has been set, although late August is a possibility. The significant motions over suppression of evidence and admission of other sexual activity of the accuser are still under advisement by the Judge. Here's some news: The clerk will send out 1,000 jury summonses for the trial. In an ordinary trial in Eagle county, a max of 250 might be sent out.

The citizens of Oklahoma shelled out more than $5.2 million to try and kill Terry Nichols:

The final costs of Terry Nichols' state case will exceed $5.2
million. More than $3.75 million has already been paid on his defense since 1999, records show. Another $115,361 in defense bills for May is being processed. The defense costs includes the salaries of six court-appointed attorneys, their investigators and other staff. It also includes overhead, housing expenses, a jury consultant's fee, a public opinion survey and expert witness fees. The latest expenses in May include the cost of motel rooms for defense
witnesses.

The security costs for the trial and for Nichols' stay in McAlester were $288,355 through May, records show. Guards watched the Pittsburg County Courthouse around the clock. Nichols is held at the Oklahoma State Penitentiary. Jury costs so far exceed $67,400. Much of that was spent for jury selectionon the hundreds of candidates who were summoned for jury duty. Jurors are paid $20 a day plus mileage.

Update: The jurors speak.

Update: Teflon Terry Nichols

Update: Terry Nichols' jury is deadlocked and he will be spared the death penalty. Our congrats go to Nichols' outstanding defense team, which included NACDL Vice President, Barbara Bergman.

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Original post:

After 17 hours of deliberations, the Terry Nichols' jury told the judge they are divided on whether he should get the death penalty. They are continuing to deliberate, but the foreman said some jurors have some "deeply held beliefs." If there is no unanimity, Nichols' will get a life sentence.

Closing arguments continue in Terry Nichols' state murder trial. He has been convicted of 161 counts of murder. The jury will decide whether he should be sentenced to life or death.

Defense attorney Barbara Bergman said Nichols has made mistakes in his life, but his role in the bombing merits a life sentence instead of death. "You must now decide do you kill Terry Nichols," Bergman told the jury of six men and six women on Tuesday. "He is a person with a heart and a soul, and a person whose life is worth saving."

Bergman became emotional during her argument. She said a death penalty for Nichols would mean guards will someday "take him out of his cell, strap him to a gurney and put poison in his veins." Defense witnesses presented photographs during the sentencing trial that showed Nichols with his three children - Joshua, 21, Nicole, 10, and Christian, 8. Others said they correspond with him about the Bible and religious issues. "He is a person who values and is valued by other people," Bergman said.

Terry Nichols's defense begins its presentation in the death penalty phase of his trial. Here's an interesting factoid: There are no more alternate jurors.

That's right. No more. So if one juror gets sick, Terry Nichols jury can't finish deliberations. Mistrial as to the sentencing. The matter goes to the judge, and under Oklahoma law, he has to impose a life sentence. Question: What's to prevent one juror, who wanted to make sure Nichols' got a life sentence, from just calling in sick?

All those millions spent prosecuting a man already serving a life sentence would be down the drain. For those of us opposed to the death penalty, we can't think of a more fitting ending.

Some legal eagles have suggested that the Judge could convene a second jury and retry the sentencing. We disagree. But even if it were legally possible, we don't see it. This judge has had enough. He's not going through this again.

Update: A commenter thought we were advocating that a juror pretend to be sick. We were not. That would be a fraud upon the court. Our comment about a fitting ending related to the possibility that a juror might really get sick and be prevented from deliberating.

The Judge in the Kobe Bryant case today issued an order (pdf.) directing the prosecution to show cause why they haven't complied with his latest order regarding DNA testing--and to establish why sanctions shouldn't be imposed .

Because the DNA testing is so critical, Bryant defense attorneys Pamela Mackey and Hal Haddon have requested that their DNA expert, Dr. Elizabeth Johnson, be present at DNA testing done by the prosecution. Ruckriegle granted that request in early May and said that a defense expert should be allowed to view the prosecution testing. Prosecutors assured the defense that their expert could be present.

But earlier this week, Mackey and Haddon said they were notified by letter that the prosecution had chosen, in direct violation of Ruckriegle's order, a lab that won't permit their expert to witness the prosecution DNA testing. On Wednesday, they informed Ruckriegle of the violation and asked that he find out why the violation was occurring. And today, Ruckriegle gave prosecutors until Tuesday to tell him why they failed to select a laboratory which would permit the defense expert to be present. He also asked them to show why he shouldn't impose sanctions.

We note that Kobe's lawyers didn't ask for sanctions, the Judge acted on his own initiative in asking why they shouldn't be imposed.

The defense scored a major victory in the Kobe Bryant case today. The judge ruled the prosecution cannot refer to the accuser as a "victim.' This is the right decision. In order for the accuser to be a victim, there has to be a crime of which she was the victim. Kobe's defense is there was no crime, just consensual sex. By calling her a victim in front of the jury, the jury is in effect being told there was a crime.

A rape charge where the defense is consent is not like a murder charge where we know in which it's acknowledged a crime occured and it's just a question of who did it. In that kind of a case, there is a victim who is dead.

This decision levels the playing field and causes no detriment to the prosecution.