The Roanoke Times has this article ("Burrow's charges should be separate," 8/28/04) about some rulings by Senior Judge Turk in the Richard Burrow case, which is scheduled to be retried starting September 17 in Charlottesville. Burrow is accused of illegal acts in connection with fundraising for the D-Day monument outside Bedford.
Regarding the tinkering with the indictment to include language dealing with the Blakely problem, the article says this:
"Turk did rule that he would strike language in the most recent indictment against Burrow that deals with the issue of sentencing, should Burrow be convicted of any charges.
Prosecutors returned to the grand jury earlier this month and sought a new indictment in light of a recent U.S. Supreme Court decision. The high court's ruling raised the question of whether any factors that could potentially make a defendant's sentence longer should be decided beyond a reasonable doubt by a jury, rather than by a judge at sentencing on a lower standard of proof.
As the new indictment stood, the Charlottesville jurors would consider not only Burrow's innocence or guilt, but if they decided to convict, they would also decide such issues as how much fraud Burrow should be held responsible for.
But Burrow's attorneys, John Lichtenstein, John Fishwick and Greg Johnson, have argued that the law is in flux, because it is still unclear whether the Supreme Court decision applies to the federal system.
They also argued that the Department of Justice has acknowledged that it is "constitutionally unworkable" to try sentencing issues before a jury. And they argued that jury consideration of the sentencing issues would be like a trial within a trial, and they would need more time to prepare.
Turk ruled that the sentencing language should be struck from the new indictment, but did not grant the defense attorneys' request that it be dismissed altogether.
"It seems to me like it ought to be tried like we've always tried a case," Turk said."