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Sam Heldman


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Monday, October 04, 2004
Aw, what the heck.

It's First Monday, and there's almost no chance that I'll be able to keep up with the Supreme Court this year, since I am being kept very busy at my new job. But nevertheless, here are predictions for today's cases:

No. 03-407 Kowalski v. Tesmer

Here is a good discussion of the case, which is about whether Michigan can restrict appointing appellate counsel to those defendants who plead guilty or nolo contendre at trial. The case is complicated by the fact that the actual defendants were tossed from the case under the abstention docrine - that is, because they had an ongoing state case at the time their federal case was filed. To the extent the indigent defendants are appealling the abstention ruling - and I haven't looked closely enough to determine if they are, they will lose. Thus, the only viable petitioners are the attorneys who receive appellate appointments, which of course raises the issue of whether they have standing to assert their potential clients' potential injury. In my view, the Michigan law discriminates against indigent defendants by restricting appointed counsel, so if the attorneys have standing, they will win. Do they have standing? I think 6 out of 9 justices will say no. REVERSE.

No. 105 Orig. Kansas v. Colorado

For the second year in a row, we will have an original jurisdiction case of one state versus another on First Monday, and yet again, it has to do with a river. If you wish to access the 270-page report of the special master in this case, you can do so here. I predict the Court will follow the advice of the special master, and that Kansas's exceptions will both be answered in the negative: COLORADO.

No. 04-104 United States v. Booker and 04-105 United States v. Fanfan

These two cases, scheduled for the afternoon, were granted last summer to resolve the mess created by the Court's opinion last term in Blakely v. Washington, in which it held Washington's sentencing guidelines unconstitutional. Justice Scalia noted, in the most ironic footnote ever, that the Court was not saying anything about the Federal Sentencing Guidelines. All the lower courts said "nice try, Nino," and promptly held that Blakely either did or did not invalidate the guidelines. Thus come these two cases, presenting the following questions:

    Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.


    If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

I think the answers have to be "yes" on question one and "yes" on the severability question. AFFIRM.