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August 12, 2004 - (US Web)

Court Rescinds Threat to Hold Pay for 'Blakely'

By Jeff Chorney, The Recorder

California's 5th District Court of Appeal backpedaled Wednesday on an order that appellate lawyers said had discouraged them from using the historic Blakely sentencing decision to help their clients.

Issued last week, the order said appointed appellate counsel would not get paid for briefing issues raised in light of the U.S. Supreme Court's Blakely v. Washington, 04 C.D.O.S. 5539.

The original order, signed by Fresno, Calif.-based Justice Nickolas Dibiaso, said briefing wasn't necessary because the state Supreme Court was already reviewing Blakely's effect on California cases. Blakely, which arose from Washington state, said juries and not judges must decide aggravating sentencing factors.

Wednesday's revision came after appellate lawyers complained that their clients could get short-shrifted if they weren't paid to research the issue.

California Appellate Defense Counsel President Kyle Gee said the new order looks good to him.

"It solves the primary problem, the inability to raise issues not squarely before the Supreme Court," said Gee, who has an office in Oakland, Calif. "It also allows us a great deal of latitude in doing research."

Most importantly, the new order implies the court will remain flexible as Blakely issues develop, Gee added.

The original order indicated the court didn't want to hear Blakely concerns, as it required lawyers to file "a letter stating with precision the Blakely issue[s] he or she wishes to raise. The failure to identify an issue by a letter will operate as a waiver."

Even though the new order is an improvement, Gee said appellate lawyers are still worried about limiting briefing just because an issue is before the state Supreme Court.

Although he admitted there's a "certain logical appeal" to limiting appeals, Gee said state Supreme Court justices look to the appellate courts to vet issues.

"It's a fairly radical change to say we're going to hold cases while issues are being decided," Gee said.

The state Supreme Court has asked for briefing in two cases in light of Blakely. One is People v. Towne, S125677, out of the 2nd District. The other is People v. Black, S126182, out of the 5th District.

Justice Dibiaso defended both versions of the order. He said his court was already getting bogged down with paper on Blakely. And even though appellate lawyers called the order unprecedented, he said the court has done something similar "a number of times."

"There didn't seem to be any reason to pay for the same argument [from several lawyers]," Dibiaso said.

Gee said lawyers already save the courts money by sharing briefs.

The first version of the order was disturbing to appellate lawyers because it tied compensation to briefing. They make $65 to $85 an hour, rarely get raises, and routinely see their paychecks held up whenever the state can't pass a budget on time.

Dibiaso acknowledged money is a sensitive issue, but didn't have much sympathy.

"Well, if it touched a nerve -- tough noogies," Dibiaso said.

"The concern was to make sure that every counsel who wanted to raise [the issue] could raise [it], so it could be preserved before state and federal courts," Dibiaso said. "And at the same time, bring some efficiency into the presentation of issues."

Two other state appellate districts, the 3rd and the 6th, also issued special orders regarding Blakely, but neither mentioned money nor limited the issues that can be briefed.

If anything, the other appellate court orders streamline the process for raising Blakely issues. Justices in those districts gave blanket permission to file supplemental briefs in light of Blakely by excusing lawyers from first filing letters asking for permission.

The 5th District's order includes a one-page boilerplate letter that justices would like attorneys to use to notify the court they'd like to raise Blakely concerns.

The whole issue could be moot even before the state Supreme Court chimes in. The U.S. Supreme Court has also agreed to take another look at Blakely, which threw federal sentencing guidelines into disarray along with state schemes.

This is not the first time lawyers have complained about judges trying to limit arguments. In 2002, U.S. District Judge Marilyn Hall Patel foreclosed arguments in cases where ex-cons were caught with guns after the Justice Department changed its stance and began arguing that the Second Amendment is an individual and not a collective right.

After appointed defense attorneys began using that switch to challenge gun charges, Patel said the court would not pay them "for such useless time."

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