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In a long-shot attempt to clear up the nationwide chaos over the Blakely sentencing decision, the state of Washington on Tuesday enlisted Hastings College of the Law professor Rory Little to ask the U.S. Supreme Court to reconsider the case. Little, a well-known former federal prosecutor who lectures on criminal law and legal ethics, filed an application with the high court asking for a time extension so Washington can file a petition for rehearing. Although lawyers and judges across the country are crying out for clarification in the wake of Blakely v. Washington, 04 C.D.O.S. 5539, Little acknowledged the odds aren’t in his favor. “Washington believes that a petition for rehearing is appropriate in this case. It will be presented in good faith and not for any purposes of delay,” according to the application. “Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture.” Little would not comment on the petition, which argues that Washington should be involved with clarifying Blakely‘s ramifications. In Blakely, the high court threw out the sentence of a man who had been prosecuted in Washington state court and said any upward departures in sentencing must be decided on facts considered by a jury and not just on the determination of a judge. The decision threw criminal practice across the country into disarray. Thomas Goldstein of Goldstein & Howe in Washington, D.C., whose firm specializes in Supreme Court work, said he could think of no time in at least the past four decades when the court reheard a case. “It would be very surprising. The justices knew what they were doing when they decided Blakely,” Goldstein said. Goldstein predicts Supreme Court justices will wait for a good case to settle the open questions. Although lawyers have already applied for certiorari in a couple of cases, Goldstein said justices will probably look to government lawyers for signals in order to figure out which is the best case to take up. If the government asks for expedited review, “arguments in September or October are virtually certain,” Goldstein said. “Once the Supreme Court agrees to hear it, courts will put everything on hold. That’s what everyone’s waiting for,” Goldstein said. This week the 2nd U.S. Circuit Court of Appeals took the unusual step of certifying three Blakely-related questions to the Supreme Court. Goldstein said that move is also likely to fail.

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