When the COA says "And We Really Mean It"
by: Ryan • May 23, 2014 • no comments
In my post from Wednesday, I noted that the time from St v Mallory to State v Cuevas was seven years. A long time, but finally they did say, "and we really mean it." Ambiguity lifted.
It took four years from Apprendi before SCOTUS had to say in Blakely, "And yes, we really mean it."
In St v. Anlauf issued an opinion that, implicitly, made plain that the "natural and probable consequences" instruction was wrong. In took ten years before the Court of Appeals was forced to spell it out in St v. Lopez-Minjarez.
I am very glad that any uncertainty has been lifted. As I have pointed out many times before, ambiguity favors the state, because defendants have to assume -- in assessing risk -- the worst case scenario. Prosecutors, on the other hand, have little incentive to worry that the defense argument may be the right one. Some prosecutors do care enough about making "bad" law that they will change an offer just to avoid it but I think they are a rarity.
That said, my pleasure at seeing the COA get it right is lessened somewhat by the fact that we have little chance to catch the prosecutor unaware. The ambiguity meant that if we made the argument -- and lost -- we would have an issue on appeal that we wouldn't otherwise have. But using Cuevas as an example, prosecutor will likely start getting it right (i.e., giving the notice, proving separate criminal episodes to the jury), and the sentence they obtain will be that much more bullet-proof.
So I guess I need to take solace in the open arguments that still remain. Such as, yes, the co-defendant demurrer. Nobody has told me they've argued it lately, but there is news. I spoke with a prosecutor today who has no plans to wait and see if the demurrer wins. If his co-defendants aren't charged identically, he is putting them in separate indictments. He simply will not take the chance that the demurrer might win (especially if it didn't win until it reached the COA, when the statute of limitations would have likely passed.)
He is one prosecutor. He is the rarity who will adjust his practice in order to avoid getting reversed and making (from his perspective) bad law. I predict few prosecutors will follow his lead, if we start filing the demurrer.
