The Capital Times has a nice article on Booker, with reference to Booker's defense attorney, Chris Kelly, known on TalkLeft where we are ever grateful for his excellent blogging contributions, as TChris.

TChris is still in trial in Green Bay, but check back over the weekend for his comments.

So who can seek relief after today's decisions in Booker and Fan Fan? And will they get anything? I hate to dash hopes, but my intial impression is that it doesn't look very promising for the vast number of defendants out there, although there will be a lot of litigation engendered by the decision. Justice Breyer writes for the Court:

As these dispositions indicate, we must apply today's holdings--both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act--- to all cases on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). ....

Some thoughts on a first read of the opinions:

Justice Stevens opinion contains the legal conclusion affirming the Court's prior ruling in Blakely and explains why judges may not increase sentences beyond what the guidelines call for based on facts not submitted to the jury. (Shorthand reason: it violates the 6th Amendment right to have a jury decide guilt beyond a reasonable doubt since judges use a lesser standard of preponderance of the evidence).

Justice Breyer's opinion discusses whether the Guidelines can be saved or must be scrapped - the remedy, if you will. First, the decisions invalidate only two provisions of the Sentencing Statute: They are 18 USC Sec. 3553 (b)(1) and 3742(e). The first makes the guidelines mandatory and the second relates to the standard of review for appeal of departure rulings. [From now on, the standard of review for reviewing departures will be the standard of 'reasonableness' instead of 'de novo'.]

The Supreme Court ruled today in the Booker and Fan Fan cases and the validity of the U.S. Sentencing Guidelines. [scroll down for links to opinions] In Booker (the case in which the defendant is represented by TalkLeft's contributing blogger TChris, who also argued the case before the High Court), the Court ruled against the Government and in favor of TChris's client. Congratulations, TChris.

Justice Stevens opinion addresses the first question on appeal, whether Blakely should be affirmed, and the Court agrees it should. Justice Breyer answers the second question as to whether the Guidelines are constitutional. Essentially, they aren't, but the invalid parts can be excised and the remainder can stay as advisory but not mandatory.

The Supreme Court ruled Tuesday that federal judges have been improperly adding time to criminals' sentences, a decision that puts in doubt longtime sentencing rules. The court, on a 5-4 vote, said that its ruling last June that juries - not judges - should consider factors that can add years to defendants' prison sentences applies as well to the 17-year-old federal guideline system.

The justices refused to backtrack from a 5-4 decision that struck down a state sentencing system because it gave judges too much leeway in sentencing. But the high court stopped short of striking down the federal system.

So what are the implications for everyone else? Justice Breyer in his opinion said the Guidelines are not mandatory, but Courts must consider them when sentencing. I'll add the link to the opinions as soon as they are in, but here's the gist of the rulings from Scotus Blog:

Update: No decision today in Booker or FanFan--it will be January at the earliest.

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The potentially biggest criminal law decision in the past 20 years could come down this morning from the Supreme Court. Booker and Fanfan will determine the fate of the U.S. Sentencing Guidelines in the post-Blakely nation.

It may not be good news, either way. If the Supreme Court invalidates the guidelines, many think Congress already has the bills drafted to create mandatory minimum sentences for every federal crime.

TalkLeft's frequent contributing blogger TChris is counsel for Mr. Booker and argued the case in the Supreme Court. He must be on pins and needles....Good luck, TChris. He did an outstanding job for his client.

Check in with Law Prof Doug Berman at Sentencing Law and Policy for late-breaking developments. ScotusBlog and How Appealing as well.

Law Prof Doug Berman at Sentencing Law and Policy reports today may be the day the Supreme Court issues its long-awaited post-Blakely decision on the Federal Sentencing Guidelines in the Booker and Fan Fan Cases. TChris, who argued the Booker case for the defense in the High Court, must be on pins and needles. So are defense attorneys and inmates around the country. Will the Guidelines be invalidated, in whole or in part? Prof. Berman reprints a poem from a reader in anticipation of the decision:

'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.

Here's Prof. Berman's guide to get you back up to speed. All our coverage is here. Good luck, TChris.

Update: No decision today.

The Daily Oklahoman has obtained a copy of a statement Terry Nichols and his lawyers gave to prosecutors last year during plea negotioations that could have but didn't result in a deal to save his life, that outlines his role in the 1995 Oklahoma City bombing. He said he knows of no other co-conspirators, did not know Michael Fortier was involved, and did not know what building McVeigh intended to bomb until he heard it on the news. Nichols went to trial and was sentenced to life by the jury.

Here's the text of the statement:

Were you present during the purchase of: ammonium nitrate, nitromethane, barrels and where was each purchased?

Ammonium nitrate: Yes, for the majority of the purchases. It is my understanding that McVeigh bought some additional bags of ammonium nitrate (approximately 12 or more) on his own. I was not involved in those purchases. The ones I was involved in were purchased from the McPherson, Kansas Coop. I do not know where McVeigh purchased the additional 12 or so bags.

Everyone is very Kobe Byranted out, I'm sure, but this is really fascinating. The Los Angeles Times, in a long investigative piece based upon statements by prosecutors and the accuser's civil lawyers, as opposed to anonymous sources or legal analysts, reports that the accuser performed so badly during a cross-examination at a mock trial held just a few weeks before the scheduled start of the real trial, that both prosecutors and her civil lawyers knew she had to fold.

It tells the story behind the apology negotiations, conducted by her civil lawyers and local defense lawyers who were on the team but not members of Haddon and Mackey's firm; the bitter feuds between the prosecutors which left two of them not speaking up to the week the trial was set to begin and the details of the mock cross that was devasting for the accuser. Almost all of the quotes are from the prosecutors and civil lawyers involved.

The only lawyers not commenting are Pam Mackey and Hal Haddon, who have consistently refused to speak with the press, citing ethical reaons. This article sounds like a prelude to a book on the case, and for once, much of what the reporters say rings true.

After a year of everyone who cared to already knowing her identity, the accuser in the Kobe Bryant sexual assault case has made her identity public--because the federal judge presiding over her civil lawsuit for damages against Kobe ruled she had to in order to bring her lawsuit.

A federal judge had ruled that the woman must be publicly identified in the case as a matter of fairness. A Denver newspaper gave a similar reason when it published the woman's name in Friday editions.

"Until now, the News has exercised its editorial judgment and has not named Bryant's accuser despite the fact that her name was widely known," Rocky Mountain News editor John Temple said in the story. "But today we are naming her, after she made the decision Thursday to refile her lawsuit in her own name seeking money damages against Bryant."

Other news organizations are continuing to withhold her name. TalkLeft believes the Rocky Mountain News made the correct decision in publishing her name and that other news organizations should follow suit. She has never been found to be a victim. It may be that Kobe is the victim. Let it all come out in the civil suit. Deference to the woman over Kobe is no longer appropriate given her decision to refuse to testify at his trial.

Earlier we linked to law bloggers' reactions to today's oral arguments on the federal sentencing system. Tonight, the mainstream media weighs in. Court-blogging might be a little like convention-blogging--the blogs are long on enthusiasm, personal impressions and minor details the mainstream press might overlook, but short on providing "just the facts." For the latter, check out the New York Times article, Justices Show Inclination to Scrap Sentencing Rules.

David Ziff at the Blakely Blog was in the courtroom today for the defense arguments in the Booker and FanFan cases. Here's his synopsis. TChris stood his ground and did not back down. A quote:

When compared to the Justices and Mr. Clement, Mr. Kelly is indeed a criminal trial expert, and it would be interesting to know how much weight the Justices gave to his statements based on experience in the trenches.

It's all very nice and good to argue these cases in the abstract, as professors and law students, but the reality is, that criminal defense attorneys see the inequities of the guidelines on a daily basis. The jury finds X but the defendant gets sentenced for X + Y because of an argument the prosecutor makes to the judge, after the trial, where the burden of proof is reduced and where the rules of evidence aren't applicable. Ashcroft today held a news conference and said, essentially, the guidelines are necessary because they have made the crime rate go down because they send the message that you shouldn't do the crime if you can't do the time.

No one is arguing defendants shouldn't be held accountable for their conduct. It's another thing entirely to double or triple their time based on arguments the jury never hears and the prosecution is allowed to establish by hearsay and speculation.

My prediction: Blakely will be held to apply to the guidelines. If the prosecution is seeking an increase based on additonal facts, there will be need to be a second phase of the trial, where the jury is presented with facts, subject to the rules of Evidence, which the prosecution must establish beyond a reasonable doubt. That's the Constitution, that was our system until 1987 when the Guidelines came in, and since 1987, some defendant somewhere has gotten screwed by the Guidelines every day. Enough.

Bump and Update: Law Prof Doug Berman of Sentencing Law and Policy was also in court. Here's his first take, more tonight:

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after we conclude Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, confirming that this may be a critical issue for the Justices on the severability question (and on which the US Sentencing Commission ought to try to shed a lot more light with whatever data it has assembled). How (and when) the Justices will sort through these matters remains the biggest question in my mind after hearing today's arguments.

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Original Post 2:00
Like many lawyers around the country, we're waiting for news about the Supreme Court oral argument in Booker and Fan Fan today. Tom Goldstein, of Scotus Blog via Blackberry, has this report: