Here's What I Can Tell You About Natale. the Panel We Had Is Fairly Pro-Law Enforcement

Doug,

Here's what I can tell you about Natale. The panel we had is fairly pro-law enforcement, and so the panel did its best to reach the right conclusion vis-a-vis Blakely's application to NJ's ordinary sentencing scheme, while doing the most possible to avoid upsetting the apple cart. They succeeded. In addition, the case raises new issues for the NJ Supreme Court that the parties hadn't even briefed. Here's some food for thought, since we know the State will petition for certification before the 10-day window expires (and Natale will cross-petition on the remedy/severability aspects):

1. The panel failed to address in any serious manner the severability arguments raised in our amicus brief. Without citing a single case to supportthe remedy it ordered, the Court simply remanded to give the State the option of putting the aggravating factors to a new jury. In so doing, the court recharacterized the defendant's claim on appeal -- that the statute was unconstitutional -- to a claim that his sentence was unconstitutional. That recharacterization allowed the majority to treat the defendant as having complained that essential elements of his offense were not submitted to the first jury. Of course, the remedy for that claim is to give the defendant the jury findings he wants, without any double jeopardy concerns (because that's a trial error and he cannot complain that his appellate arguments have undone the judgment). But we claimed that the statute was unconstitutional as written, and that the only remedy was to vacate the unconstitutionally excessive sentence. Clearly, the panel understood the larger ramifications of that holding (that every other defendant would automatically get a remedy) and was simply not going to go there. This is the issue I am most interested in forcing the NJ Supreme Court to confront: can the Court re-write an statute simply to bring into conformity with the 6th Amendment? If so, what is the basis of the Court's power to do so?

2. The panel, we believe, fundamentally misunderstood the difference between Harris as it applies to the federal sentencing scheme, and Blakely and Apprendi as it applies to NJ's scheme. And so we believe that allowing imposition of a period of parole ineligibility based on judicial fact-finding -- something that cannot be imposed based on the verdict alone -- similarly violates the Sixth Amendment. The panel viewed Harris as a simple issue of math: since 50% of the maximum is obviously less than the statutory maximum, fact finding leading to a sentence below that maximum can never implicate Apprendi and Blakely. The panel failed to understand that the US allows a sentence of between 5 and life, but if fact "A" is found, the judge loses the power to sentence below 7 years. Under NJ law, the judicial fact-finding extends the judges power by authorizing a period of parole ineligibility which extends the time the defendant serves.

3. By ordering trial judges to continue sentencing under the old system, the Appellate Division has deftly handled those defendants who are coming up for sentencing, because they will be entitled to the benefit of Natale's holding (assuming it is upheld on appeal), since their cases were in the pipeline. As for defendants who werepreviously sentenced to a term above the presumptive, thosewho have serveda sentence consistent with the presumptivewill have to scramble for a remedy, because if they have to wait until our Supreme Court decides the issue, they will have served out their unconstitutionally enhanced sentence before they can get a remedy. So we are recommending that they move for state habeas relief (which will raise a retroactivity question, see No. 4) and for bail pending resolution of their applications.

4. Retroactivity: by handing this case off to our Supreme Court, the Appellate Division has avoided deciding whether the holding should be retroactive and, if so, to what extent. I must say that, in what I view as a tactical blunder, the State has been arguing that Blakely is merely an extension of Apprendi. If that's true, and I have always maintained that it is (it merely clarifies what the statutory maximum is for 6th Amendment purposes), then the Natale decision ought to be retroactive to the day Apprendi issued. Whether our Supreme Court willmakeits decision retroactive to that extent is another question. But here's an additional and interesting question: if I am correct that our scheme is unconstitutional on its face and can't be rescued byjudicial draftsmanship, thenevery defendant whose sentence exceeds the presumptive will have been sentenced under anunconstitutional statute, and every such defendant will be serving an illegal sentence. Query whether under state constitutional law such defendants get an automatic remedy regardless of whether their convictions were final when Natale issued.

5. Harmless error: the panel ducked our request that it rule that Blakely violations in NJ can never be harmless because (1) NJ applies Scalia's Neder dissent for 6th Amendment violations (only way error is harmless is if the jury necessarily/implicitly found the omitted element/fact), and (2) under NJ law, the 2C:44-1a aggravators can never duplicate an element of the offense. Rather than so hold the panel simply indicated that, due to the nature of the aggravators, the panel need not address the issue. (By the way, you might be asking how, under the Supremacy Clause,NJ courts can apply the Neder dissent's version of harmless-error analysis, but I think our courts have recognized that they do this as a matter of state constitutional law. Thus, even though they interpret the jury trial right coextensively in terms of what is constitutionally required and what is not, NJ has a more onerous harmless error test once an error is found.).

6. The panel's remedy raises a new double jeopardy twist: the first time this case was in the NJ Supreme Court, it was remanded with instructions to resentence the defendant. The State had the option of submitting to special jury a "deadly weapon" issue, which if found would have required Natale to serve 85% of his sentence without parole under the "No Early Release Act." The State opted not to do so, and so he was sentenced without that parole disqualifier (he got the 50% discretionary period instead, see No. 2 above). But now that the panel has vacated the sentence because of the Blakely violation caused by giving him 9 years instead of 7, the panel has given the State the option of reconsidering its decision not to seek a NERA enhancement, even though the State did not ask for that remedy. The Panel's view is that imposing a NERA disqualifier would not implicate double jeopardy principles since it would not result in the defendant getting a longer sentence. Longer than what? Longer than the one he received just after trial, which sentence was reversed? Longer than the one to which he was exposed the second time around before the state opted not to convene a sentencing jury? Or longer than any maximum exposure because the NERA is, in the court's view, a mandatory minimum statute? Whatever, we think that at least under state constitutional principles of fundamental fairness and sentencing double jeopardy, the State's waiver gave the defendant an expectation that we would not have to face the 85% parole disqualifier. In fact, even if the State decides not to obtain jury findings to justify the 9 year term (meaning Natale's sentence would be reduced to 7 years), a decision to seek a jury finding on the deadly weapon issue that is a pre-condition to a NERA sentence would result in a longer prison sentence, because the parole ineligibility period would increase from 50% of 7 years to 85% of seven years. Without that possibility,Natale-- today – is eligible for release on parole as a result of the panel's holding.

That's all that comes to mind right now; I of course will forward to you briefs and further pleadings as I receive them.

Kind regards,

Steve