Defendants can have cake, but they can't eat it!

This is a summary of an exchange with a federal Judge. I honestly think that he felt that defendant was going to "have his cake and eat it too" because of Blakely, and was somewhat upset.

Judge: Yes, Mr. Lincoln, I agree with you that Blakely applies to the federal sentencing guidelines, so I am going to comply with Blakely by submitting these sentencing enhancements to the jury.

Lincoln: Your Honor, with all due respect, the Court in Blakely did not state that you are now a legislator and can change the language of the Sentencing Guidelines or the Sentencing Reform Act, by substituting "the jury shall" for wherever it states "the Court shall." You can determine that those portions of the guidelines and the sentencing reform act are unconstitutional and then you have to deal with the matter of severability. And, even if you decide to go ahead with your proposed submission to the jury of these matters, I have requested that you at the very least allow us to do so in a bifurcated fashion. This would avoid unfair prejudice to defendant in the guilt phase, would allow us to thereafter present any eveidence we have to contest those enhancements, not to mention forcing us into a weird closing argument. Moreover, it will allow the jury to focus solely on the enhancements during a second deliberation. If you intend to do something which we understand the law does not authorize you to do, and which government counsel has offered no support for this procedure other than following direction from main "Justice" - at least do so in a fair manner.

Judge: You want to have your cake and eat it too.

Lincoln: Your Honor, my name is Lincoln, not Scalia, and I want to state for the record that I had nothing to do with the writing of the Blakely opinion. Beyond that, I just want compliance with the laws and the Constitution.

Judge: Government counsel will reply to your motion within 15 days. And, trial is reset for October 15th.