Archive for April, 2010
Dealing with Padilla v. Kentucky
Apr 9th
SCOTUS’ decision in Padilla v. Kentucky has generated a lot of discussion and rightly so. As I noted in one post, some are concerned about the additional burden being placed on defense lawyers to learn and be informed of the highly complex area of immigration law.
Never fear. Here’s a practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.
The advisory also points to several great resources on immigration consequences in criminal courts.
You can thank me later.
Bye bye Bysiewicz
Apr 6th
The transcripts of Susan Bysiewicz’s deposition have been released after her lawyer, the renowned Wesley Horton, conducted a cursory 5 minute search of the relevant law and determined he couldn’t block their dissemination.
“You’ve actually said you’re every bit as qualified as Dick Blumenthal was [in 1991] when he took this position, based upon your legal experience, correct?” Gersten asked during the March 31 desposition.
“Yes,” she answered.
“And you’re aware, aren’t you, that prior to the time Mr. Blumenthal became attorney general, he actually, in contrast to you, appeared in court, correct?”
“Yes,” she said.
“In fact, he tried a bunch of cases, didn’t he?” Gersten said. “You never tried any cases?”
“No,” Bysiewicz said.
Then she was asked a series of ludicrous hypotheticals, the answers to of each of which should have been a resounding no:
Guilty of being poor
Apr 5th
There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.
“Man, if I had a real lawyer, I’d have gotten a dismissal already.”
Yeah, sure.
“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”
Whatever you say.
The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.
I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.
In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.
For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.
The presumption of guilt
Apr 4th
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
Coffin v. United States. The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. The presumption has been traced by some to Deuteronomy and there is evidence that it was embodied in the laws of Athens and Sparta. “Better than 10 guilty persons escape than that one innocent suffer“, says Blackstone [see here for a summary of the history of the presumption].
It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. I’ve often employed Emperor Julian’s response, reproduced above, in answering the cocktail party question.
It’s all a lie. A big, bold-faced, wool over your eyes lie.
The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.
From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.
22tweets, a creation of Lance Godard, asked those who were featured in last week’s Blawg Review one question on twitter. Mine was: “What would you say is the most difficult aspect of being a public defender?”*
Announcing the apd iPhone and iPad app
Apr 1st
As some of you know, I’m an iPhone aficionado. Long have friends and colleagues complained that I am attached at the hip to this marvel of modern technology.
I have a lot of apps on my phone and a lot of links. I have a link to Google Reader to track my favorite blogs, a link to the General Statutes to quickly look up the penal code and a link to Lexis to do legal research.
But that’s too many links and too many windows. So I searched for a better solution. And I searched and searched. I didn’t find one. So I decided to create one for myself.
Today, after 2 months of research and development, I am proud to introduce the “a public defender” iPhone and iPad application. It brings all of these sources together into one spot for your convenience. Plus, as a special feature, I’m including the “what to do if questioned by police” section, which gives you a handy step-by-step guide to encountering law enforcement and making it through without being arrested or tasered or Rodney King-ed.
It is also voice activated, so if you speak the words “I want a lawyer” within a 100 foot radius of your phone, it will launch Google, search for the nearest lawyer and automatically dial his or her phone number!
Just to whet your appetite, here are some of the steps in the “dealing with law enforcement” guide:
- Are you in a car?
- Are you wearing baggy pants?
- Does your name have an apostrophe in it?
- Is there pot/heroin/cocaine in your car?
- Is there more than 100lbs of pot/cocaine/heroin?
- Is there are gun in your car?
- More than 5?
- Did the police catch you after a chase?
- Did you run over anyone in that chase?
- Are you on foot?
- Are you running?
- Are you running alone?
- How many cops are chasing you?
- Did the officer tell you he’s your friend?
- Did you believe it?
- Are you exercising your right to remain silent?
- Why not?
- Do you have a lawyer on speed dial?
- Are you white?
- Did you kill someone?
- How many people did you kill?
- Was it in the course of committing another crime?
- Did you rape someone?
- Under the age of 16?
- Under the age of 10?
- Are you Black/Hispanic/Brown/Otherwise Non-White?
Some sample responses include:
- Congratulations, you’re White! You’re about to get a ticket! Smile!
- Curl up in the fetal position
- Say you want a lawyer.
- Say it again.
- Compliment the officer on his tie.
- Do not, repeat, do NOT unzip your pants.
- Why are you still talking?
- 42
- Say: “it’s not mine, occifer, I’m just holding it for a friend”.
- Run
- Flip off the officer. Go ahead. I dare you.
- Sorry, dude, you’re shit out of luck.
The app uses a complicated algorithm not unlike the one used by Google to provide the most appropriate and accurate responses. This is an invaluable tool not only for the career criminal among you, but also the most experienced criminal defense attorney. Imagine standing before a judge at arraignment or oral argument and cycling through the options in the iPhone to provide the most up-to-date and accurate response! It even comes with a built in Google custom search of all the respected legal blogs on the internet and it Tweets the search query to twitter and alerts your phone when someone responds! In addition, it also provides a handy link to the most updated legal decisions on the subject of your need.
This is an extremely intelligent and adaptive tool. The more questions you answer, the more accurate your answer. Except the last one on race, which, if you answer in the affirmative, shuts down your phone and shoots a stream of white powder onto your face.
Best of all, it’s free!
Choice quotes from Padilla v. Kentucky
Apr 1st
Here are a few things that I noted in Padilla v. Kentucky that I left out of my last post, which I wanted to focus mainly on the immigration issue itself. But these are worth mentioning.
First, for the habeas practitioner, Justice Stevens delivers a powerful statement:
In [the Supreme Court of Kentucky's] view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.
We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
JACKPOT! Those who practice in the field know that courts are quick to dismiss viable claims of Constitutional defect on the grounds that the basis for that alleged defect is only a “collateral consequence” of the plea. Go forth, defense attorneys, and beat them over the heads with this quote.
In what is more evidence of the complete battiness of Scalia and Thomas, Scalia writes:
We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.
I thought it needed pointing out that Scalia would only “assume the validity” of Gideon and Strickland. Nino, you crazy old man, you…
Padilla v. Kentucky: If it is clear, it is clearly your duty
Apr 1st
Yesterday, in Padilla v. Kentucky, the United States Supreme Court finally got around to affirming and acknowledging that which most of us in the field already knew: immigration consequences matter.
Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when the immigration consequences of a plea are clear, it is Constitutionally deficient for a defense attorney to neglect to inform the defendant of those consequences. Well, duh.
As SCOTUS itself recognized in INS v. St. Cyr, for the non-citizen defendant, the fact of deportation may be the single most important factor in deciding whether to plead guilty. We’ve known this forever.
Moreover, several states, including Connecticut, require courts, by statute, to inform defendants during the plea canvass that their plea might have immigration consequences. In cases where the immigration consequences are unclear, Justice Stevens writes, the defense attorney must meet at least that threshold.
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.
I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.
It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?
And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).
The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.
Finally, just a reminder of the ethical responsibilities. The Rules of Professional Conduct states:
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
The commentary to and analysis of Rule 1.1 also provides handy guidance.
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