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A HISTORY LESSON FOR THE STRICT CONSTRUCTIONISTS For his long-shot pitch to convince the U.S. Supreme Court to rehear Blakely v. Washington, 04 C.D.O.S. 5539, Hastings College of the Law Professor Rory Little reached back more than 200 years to challenge the majority’s interpretation of history. Little, who filed the petition for rehearing on behalf of the state of Washington, told the high court it should grant his petition because it relied on an “erroneous” assumption regarding the framers of the U.S. Constitution and their thoughts on indeterminate sentences. According to Little’s petition, the historical misreading began with Apprendi v. New Jersey, 530 U.S. 466, which preceded Blakely. In that case, the Supreme Court assumed the framers weren’t familiar with “indeterminate sentencing schemes,” Little argues. In fact, Little says, the framers themselves adopted indeterminate sentences for crimes including treason and stealing or falsifying court records. (Both netted zero to 84 months.) “It is difficult to imagine that the same legislators who wrote the Sixth Amendment as well as many indeterminate criminal sentencing statutes would have, at the same time, thought unconstitutional legislative directions given to judges as to how to sentence within the ranges they wrote,” Little writes. “Rather, it seems likely that the framers would have approved of giving legislative direction to sentencing judges, had they seen any need for it.” Although Supreme Court experts give Little a near-zero chance of success, the professor hopes the justices agree that “consideration of this new, precept-altering historical evidence merits rehearing.” In two other Blakely-related cases, the U.S. solicitor general asked the Supreme Court to clear up confusion over the decision, which held that a judge cannot use facts not proven at trial in order to increase a criminal sentence. On Monday, the court agreed to hear those cases. � Jeff Chorney BAR EXAM FEES TO RISE Taking the California Bar Examination is going to be slightly more costly next year. On July 24, the State Bar Board of Governors, meeting in Los Angeles, voted to increase the admissions fee by an average of 4 percent across the board. The new rates go into effect Jan. 1. Registration costs for law students will rise from $76 to $80 and for attorney applicants, from $139 to $145. Along with other increases � such as a $104 fee for use of a laptop computer during the exam � revenues will grow to about $12.9 million for 2005, with a carryover of about $613,000 from this year. Expenses will amount to about $13.1 million. The Committee of Bar Examiners, which operates the bar exam, uses its money to pay for salaries and the costs of the twice-yearly test, including supplies, examination hall rentals and contracts for electricity and security. According to staff reports, the fees will be adjusted each year by about 4 percent through 2009 so that increases will be gradual rather than come in larger lump sums every few years. “The committee is acutely aware that many, perhaps most, applicants are entering the admissions process with substantial student loan debt levels,” the committee advised the Board of Governors, “and it prepares its annual expense budget at the lowest level possible coincident with providing timely services and a valid and reliable examination.” � Mike McKee NEW CLASS, HARD LESSONS SANTA CLARA � Roughly 60 new students will show up at Santa Clara University School of Law this week � but they aren’t incoming first-year law students. Instead, they are attorneys attending the law school’s latest conference on the death penalty. During the week-long program, attorneys with active capital cases will discuss their cases in workshops and brainstorm defense strategies. Among their teachers will be Santa Clara law professor Ellen Kreitzberg, a recognized expert on death penalty cases. “The college fosters a feeling of cooperation and community among participants and faculty who are united in the common goal of saving lives,” Kreitzberg said. “When it started, it was unique, in that lawyers bring actual cases to the workshop.” Among the skills attorneys will learn are how to select a jury, working with damaging evidence and crafting closing statements. To preserve a frank discussion of issues, organizers aren’t allowing the public to attend. The workshop continues through Thursday. � Justin M. Norton

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