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December 13, 2004 - The Legal Times (US Web)

In Final Sitting, No 'Blakely'-Related Decision From High Court

By Tony Mauro, Legal Times

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Blakely News Archive

Sitting for the final time in 2004, the Supreme Court on Monday failed to hand down anxiously awaited rulings on the constitutionality of federal sentencing guidelines, a possible sign of sharp divisions among the justices.

Instead, the Court issued four other opinions, including Florida v. Nixon , a death penalty case that appears to give defense lawyers greater leeway to devise trial strategy without being accused of ineffective assistance.

At the summertime urging of the solicitor general, the Court had expedited the handling of United States v. Booker and United States v. Fanfan to remedy the "disarray" of the federal sentencing system in the wake of last June's ruling in Blakely v. Washington , which struck down a state sentencing law similar to federal guidelines.

The Court heard arguments in the cases on the first day of its term in October, and many participants expected decisions by November. But the Court's adjournment without a decision means that Jan. 11 stands as the earliest date a ruling could come.

"I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan ," said Ohio State University College of Law professor Douglas Berman, who has closely watched the sentencing cases. He notes that last Dec. 10, the Court issued its campaign finance ruling in McConnell v. FEC -- one of the lengthiest decisions in its history -- following oral arguments in September 2003.

Berman attributes the delay in part to Chief Justice William Rehnquist's bout with thyroid cancer, which has kept him away from the Court since Nov. 1. Rehnquist is known for urging fellow justices to write their opinions quickly in spite of their disagreements.

Also on Monday, the Court announced that Rehnquist would not participate in cases argued in November -- unless his vote is needed to break a 4-4 tie -- but will participate in cases argued in December. That news followed an announcement last Friday that Rehnquist intends to keep with tradition and swear in George W. Bush as president on Jan. 20. Taken together, the two announcements suggest that a Rehnquist retirement is not imminent -- even if he is conserving his energy by shedding cases argued in early November, when he was recuperating from surgery related to his cancer.

Justice Antonin Scalia presided over Monday's session, apparently for the first time in his 18 years on the Court. The duties of announcing opinions and swearing in new members of the Supreme Court bar fell to Scalia because the three justices more senior than he were absent; not only the ailing Rehnquist, but also John Paul Stevens and Sandra Day O'Connor.

It is not uncommon for one or more justices to be away from the bench on the final day of a session preceding a long recess, a day when no oral arguments are scheduled.

The Florida case decided Monday was brought by Joe Elton Nixon, convicted in the 1984 kidnapping and murder of a woman in Tallahassee.

In the face of what Justice Ruth Bader Ginsburg described as "overwhelming evidence," including a confession, Nixon's lawyer, Assistant Public Defender Michael Corin, began plea negotiations, seeking a life sentence instead of death in exchange for a guilty plea. The negotiations were unsuccessful, with the state refusing to forgo the death penalty.

"Corin concluded that the best strategy would be to concede guilt, thereby preserving credibility in urging leniency during the penalty phase," wrote Ginsburg for the unanimous Court. Corin says he told Nixon three times about the strategy, but that Nixon was "unresponsive."

Nixon behaved bizarrely before trial, and it took place without him. Corin conceded Nixon's guilt and asked the jury not to sentence Nixon to death because of his mental illness, but the jury returned a death sentence nonetheless.

A new lawyer for Nixon appealed, and the Florida Supreme Court ordered a new trial, ruling that by conceding guilt without his client's explicit consent, Corin had rendered ineffective assistance. The Florida court cited the high court's 1984 decision in United States v. Cronic , which found ineffective assistance of counsel when the prosecution's case is not subjected to "meaningful adversarial testing."

But Ginsburg, noting that capital defense lawyers face "daunting challenges," said lawyers may "reasonably decide" to forgo a not-guilty defense and focus instead on reducing the penalty.

She cited the renowned lawyer Clarence Darrow, who conceded his clients' guilt in the famous 1924 trial of Richard Loeb and Nathan Leopold, but urged leniency in sentencing.

"Counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade," wrote Ginsburg.

The ruling pleased death penalty supporters who assert that ineffective assistance claims are used too often to delay death sentences.

"This is a case where a horrible murderer convicted on irrefutable evidence, including his own words, was able to avoid punishment for almost two decades while Florida's highest court attempted to second-guess the strategy of an experienced trial lawyer, who clearly did the best he could to save his client's life," said Charles Hobson, an attorney at the Sacramento, Calif.-based Criminal Justice Legal Foundation.

Also on Monday, the Court issued opinions in Kowalski v. Tesmer, on the rights of indigent defendants to appellate counsel when they have pleaded guilt; Devenpeck v. Alford , a Fourth Amendment auto search case; and Cooper Industries v. Aviall Services, interpreting a provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

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