U.S. District Judge Paul Cassell on Monday issued orders in at least a dozen criminal cases on his docket, advising both sides of the constitutional question raised by the high court's Thursday decision and asking defense attorneys to inform him whether they intend to raise the issue prior to sentencing in the cases.
The first Utah hearing on the issue will be held today in Cassell's courtroom in the case of Brent Croxford, who has pleaded guilty to a single charge of sexual exploitation of a child.
However, Cassell's order identifies at least two anticipated sentencing enhancements that "may be vulnerable to challenge under Blakely."
At issue is the Supreme Court's decision in the case of Blakely vs. Washington, in which the 5-4 court determined judges have no authority to lengthen a defendant's prison term beyond that laid out in state sentencing guidelines.
Facts routinely used to enhance a defendant's sentence must be supported by a jury's positive finding to pass constitutional muster, the court said.
Although the court specifically noted it was not expressing an opinion on federal sentencing guidelines, which were not before the court, many have predicted the decision will have a dire impact on the very similar federal sentencing guidelines put in place more than 15 years ago.
Indeed, in a dissenting opinion, Justice Sandra Day O'Connor ominously warned that "the practical consequences of today's decision may be disastrous."
Cassell's move was a proactive one and could impact more than a hundred cases now pending in Utah's federal court. The judge's clerk said Monday that Cassell intends to issue similar orders in all of his criminal cases.
Although that number was unavailable, statistics from the Administrative Office of the Courts show that each of Utah's five full-time federal judges averaged 162 criminal felony cases at any given time in 2003.
Utah's newest federal judge is fast gaining a reputation as an active jurist who frequently raises issues on his own and then asks attorneys to address them.
University of Utah law professor Erik Luna acknowledged Cassell's decision to address the Blakely ruling may be unique but said it isn't at all inappropriate.
"Maybe it's not typical of federal judges, but Judge Cassell is not the run-of-the-mill judge," Luna said. "(He) goes out of his way to make sure that all of the information is presented to the court before he makes decisions.
"His asking them to brief this issue is consistent with a very smart judge who wants to do the right thing."
In his order in the Croxford case, Cassell acknowledged that while federal prosecutors may desire more time to prepare for this afternoon's argument, the case involves a child victim and deserves speedy consideration.
"While the Blakely opinion may be unsettling in various ways, it is important to determine how to proceed in the opinion's wake as rapidly as possible to avoid stalling the court's large criminal docket," the order states.
The Utah U.S. Attorney's Office was unclear Monday exactly how it would proceed this afternoon. A spokeswoman said the office was in close contact with the U.S. Department of Justice, which sets policy for U.S. Attorney's Offices throughout the country.
Justice Department spokesman John Nowacki said the department is still in the process of analyzing the Supreme Court decision.
"Obviously, the issues raised by the Blakely decision are both significant and complex," Nowacki said. "The department is currently reviewing the decision and its ramifications to provide guidance to our prosecutors."
Steven Killpack of the Utah Federal Defender Office said his staff met Monday morning about the Blakely decision, and all attorneys have been encouraged to review their cases in light of the ruling.
"The implications of Blakely haven't yet been fully understood," he said. "It will be several weeks, if not several months, before defense attorneys and prosecutors can proceed with clarity."
Killpack praised the ruling, which he said could impact the majority of cases currently being handled by his office.
Luna, a documented critic of the federal sentencing guidelines, also applauded the Blakely decision.
The consequences could be quite startling, he said, as the ruling is believed to call into question thousands of cases in which judges have relied on unproven facts to enhance defendants' sentences.
The result, Luna said, could be a "bureaucratic nightmare."
Still, he said, "I don't see this as the heavens falling. . . . I see this as the new day that I've been waiting for for 15 years — I don't think the system itself is just."
Luna said the ruling could shake things up for a system that "believe(s) that efficiency and finality is more important than justice. I believe that justice must always take precedence over these other concerns."
Contributing: Doug Smeath
E-mail: awelling@desnews.com
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