habeas
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.
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
A few stray thoughts
Mar 23rd
the metaphor, stupid
Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.
[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]
The habeas corpus effective suspension and evisceration bill
Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.
Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.
But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.
The second premise of the state’s position is all the more confusing and confounding.
The Limp Writ
Mar 18th
Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”
The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.
And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.
That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.
Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.
Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:
An idle thought on the Boykin canvass
Feb 12th
Much as been written and said about Boykin v. Alabama since Justice Douglas wrote the decision in 1969. At best, it is a necessary safeguard to ensure that guily pleas, the bulk of the resolutions in the criminal justice system, are made voluntarily. At worst, it is a prophylactic.
A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 (1973).
State v. Groppi. The Boykin canvas is limited to three Constitutional aspects: First, is the privilege against compulsory self-incrimination.. . [s]econd, is the right to trial by jury… [t]hird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra].
In fact, the Boykin canvass is now part of most state statutes or rules of court. Here, in CT, it is codified in Conn. Prac. Bk. S. 39-19, which provides:
The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
- The nature of the charge to which the plea is offered;
- The mandatory minimum sentence, if any;
- The fact that the statute for the particular offense does not permit the sentence to be suspended;
- The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
- The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
But even there, strict compliance is not required:
Rest in Peace, good bill, your time will come
Apr 10th
It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.
So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:
Two jurors sitting in a tree, K-I-S-S-I-N-G
Dec 22nd
Okay so it wasn’t so much a tree as it was a hotel room and they weren’t kissing but rather “doin’ it”. Apparently, during the trial of Roberto Dunn, two jurors were “deliberating each other” (euphemisms solely mine) and two deputies who were charged with guarding the jurors were also “taking sexual liberties” (that’s a quote).
The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.
11. Be (intellectually) honest
Dec 11th
Since the last post was mostly tongue-in-cheek, I couldn’t include #11: be honest, or intellectually honest.
The legal profession, despite the number of students graduating from law school every year, is small and insular. The local bar is small. The attorneys who practice in your given field are even smaller. And when you deal with the same attorneys over and over again, there is nothing more valuable than your reputation and your integrity.
Which is why it is imperative that you be honest. That you be intellectually honest. Opposing counsel and judges can see through your prevarication.
The law is not always friendly to you or your client or the position you want to take. It happens to all of us. That doesn’t give you a license to lie, or to make up arguments that ignore the law or the facts of the case.
Might OJ Simpson have a Sanders claim?
Dec 8th
how did I end up back here?
One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.
Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden1. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.
Troy Davis gets a stay
Oct 24th
The 11th Circuit has stayed Davis’ execution – set for Monday – and asked both parties to brief whether Troy can file a successive petition. They also included this interesting question:
It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.
If someone has a copy of the order, please let me know. I’d like to link to it.
Hood execution stayed; lawyers continue douchebaggery
Sep 9th
I was going to write about the silly comments made by the attorney for the Judge that presided over Hood’s original trial, but that has been pre-empted by this late breaking news that Hood’s execution, set for tomorrow, has been stayed.
Tuesday’s reprieve was granted over a technical issue regarding instructions given to the original jury, and a hearing will be scheduled on that issue.
Btw, I love how instructional error is called a “technical issue”.
Now here are the asinine comments:
Earlier in the day, [attorney for Judge Holland] Mr. Boyd said Judge Holland is “saddened” and “disappointed” by the allegations of an affair at the time of the trial.
He also criticized Mr. Hood’s attorneys for filing a civil action in the case in an attempt to elicit a stay of execution from Texas Gov. Rick Perry, or to force consideration of new appeals in a criminal court.
“This is not about getting money damages for Hood or his estate,” Mr. Boyd said of the civil action. While lauding their “creativity,” Mr. Boyd noted that the case happened 20 years ago and in all those years, “nobody has filed a grievance between either of these two people.”
Right, it’s not about money, but “just the small matter of his life”.
Sorry Judge Holland, but I am “saddened” and “disappointed” by your attempts to obfuscate and to possibly deny this man a fair trial before his life is taken by the State.
Judges are supposed to recuse themselves from cases if there is even the slightest appearance of impropriety. Sleeping with the prosecutor in a capital case goes far beyond that. Everyone knows that there are some judges who are in bed with the State, but when it actually happens – literally – it should be enough to stop the trial or reverse the conviction.
The Judge that ordered the depositions of the judge and prosecutor was quite right in saying:
he was interested in preserving the integrity of the judicial system
Good to know that not all judges in Texas are like Judge Holland.
Stare decisis ad infinitum (updated)
Sep 8th
So seems to be the State of Utah’s motto. In the midst of a capital case, the A.G. is seeking sanctions against defense lawyers because, get this, they argue that a third of the claims have already been decided by other cases.
[Defense attorney] Brass and attorney Richard Mauro, who represents [the other defense attorney] Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for [defendant] Archuleta.
Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”
Makes a lot of sense. You raise every avenue of challenge, even if previous cases have decided the issue. Maybe they’ve been decided by state courts, but not by Federal courts. In all post-conviction cases, especially capital cases, it is all about preservation of issues.
But this is not surprising. Since AEDPA, State prosecutors have been on a crusade to curtail post-conviction avenues and rights of criminal defendants. Claims of “abuse” are pretty frequent. Given that courts throughout the country have repeatedly held that habeas corpus petitions are the appropriate venue for challenging trial counsel’s performance (and raising other Constitutional deficiencies), I would sincerely hope that they suggest a viable alternative or let it go.
But back to the curiosity here. What the prosecutors are, in essence, saying is that once a point of law has been decided a certain way, it can never be changed. Not only is this not what stare decisis means, but if such were indeed the case, then almost all issues would have been decided decades ago and we might as well disband all appellate courts.
Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.
Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.
I also wonder if the Utah A.G. practices what it preaches. I suspect the A.G. has not rolled over on any cases where there is “caselaw on point”. I bet they still defend post-conviction challenges and other criminal prosecutions. They may do so even in cases where the law is squarely against them. I’ve seen it happen here. It’s annoying, but it’s the way it is. It doesn’t mean that lawyers should be subject to sanctions for merely advocating strongly on behalf of their client and preserving all legal claims. Sanctions are serious – they should be thrown about willy-nilly when defendants do something that irk prosecutors. Sanctions should be reserved for the worst violators of the rules of conduct.
What this disturbing litigation has also caused, perhaps intentionally, is a declining desire on the part of Utah criminal defense lawyers to take on capital cases.
Mauro said the state’s case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they’ll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.
It’s not only those that are wrongfully convicted – those that have been convicted with the assistance of some Constitutional defect. Post-conviction isn’t about getting another shot at the apple; rather it is about making sure that when the State convicts an individual and takes away his/her liberty, it does so in a Constitutionally sufficient manner.
That is of paramount importance – and the A.G. doesn’t seem to care.
Update: The A.G. seems to be in the news for something else as well. This time, the A.G. doesn’t seem to care about the presumption of innocence. The A.G. redesigned his website and launched it anew with a video of the arrest of a sex assault suspect. [He also has a blog.]
Legal Blog Watch reports:
The video shows the Utah Internet Crimes Against Children Task Force assisting local police as they arrest a 26-year-old man suspected of arranging to have sex with an underage girl he met online. Actually all it shows is two men escorting a man in handcuffs through a parking lot. That is followed by the comments of a local sheriff’s detective, who says, “If I was someone who had a daughter, I’d be very scared about what’s going on,” and of a local police officer, who says, “It’s crazy that we have guys like this that would do this type of thing.”
No reason to let the presumption of innocence get in the way of good TV. But the local chapter of the ACLU sees it otherwise. ACLU lawyers showed up at Shurtleff’s press conference announcing the site to register their protest. “We are concerned that by posting the arrest video of an unconvicted person, the attorney general is more interested in political grandstanding than protecting the public,” ACLU lawyer Marina Lowe told the Deseret News. Added ACLU attorney William Carlson, “Guilty before charged.”
Gideon’s turning in his grave
Sep 3rd
From the very same state that gave us Gideon v. Wainwright comes the news that their public defender system is in dire straits.
A judge in Miami ruled today that the public defender system is so overburdened and crushed by caseload that they can stop accepting some cases until the situation improves.
Circuit Judge Stanford Blake found that Public Defender Bennett Brummer’s office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.
“The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused,” Blake wrote.
“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” the judge added.
Starting mid-September, around 2000 cases a month will have to be shipped out to private counsel, because public defenders are unable to handle them.
The state (and state’s attorneys) of course hates being told what to do:
“This is a political matter that should have stayed in the political system,” Rundle said. “No one should create a constitutional crisis that jeopardizes the integrity of our criminal justice system.”
Maybe the funding of public defender systems is a political matter, but the representation of over 2000 defendants a month is certainly not. It is a legal and constitutional issue and every defendant should receive competent representation. If the political system that this prosecutor seems so fond of actually contributes to the situation that has resulted, then why should fixing this problem be left up to them? It’s like saying sentencing should be left up to defendants.
There was nowhere else for the public defenders to turn. The Court stepped in and did what it had to and what it should have.
Scoplaw, one of those hard-working public defenders in Miami, weighs in.
The purpose of habeas corpus
Jun 12th
More from Boumediene:
Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as “the great and efficacious writ, in all manner of illegal confinement”); see also Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at its core, an equitable remedy”); Jones v. Cunningham, 371 U. S. 236, 243 (1963) (Habeas is not “a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”).
Boumediene and habeas corpus
Jun 12th
Plenty of other commentators have far more intelligent comments and insights on Boumediene [pdf] than I have to offer, so I will direct you to them (see this SCOTUSblog post for a collection of links as well).
I do want to leave you with this quote from Justice Kennedy’s opinion, via Orin at Volokh:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
There is a reason it is called The Great Writ.
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