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October 13, 2009

Media takes and the transcripts of today's SCOTUS arguments

As noted in this prior post, the Supreme Court heard two criminal cases today with significant sentencing implications, Padilla and Spisak.   Here are links to two AP reports on the arguments:

These AP reports suggest that the arguments went as was to be expected: in Padilla, the Justices seemed concerned about the potential implications of a ruling on the defendant's behalf;  in Spisak, the Justices seemed concerned about the Sixth Circuit's reasons for reversing another death sentence.

I plan to read both oral argument transcripts ASAP, and links for everyone via can be had via SCOTUSblog: here for Padilla v. Kentucky (08-651) and here for Smith v. Spisak (08-724). 

October 13, 2009 at 06:57 PM | Permalink


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Judging by the oral arguments I expect the states to win both of these. And likely not 5-4 either. Even the liberal side was on board with AEDPA deference here. I thought that the jury instruction point that such law still isn't clearly established to be very telling also.

Padilla may get his Strickland analysis but I don't expect that to be much help. I certainly don't expect the justices to credit a rational defendant with preferring to spend ten years in prison to be able to see family instead of being free after five and possibly supporting that same family somehow. Certainly his counsel got the tough questions.

Posted by: Soronel Haetir | Oct 13, 2009 11:08:50 PM

Soronel. I disagree with you on Padilla. I don't think the question were any harder for Padilla's attorney, he just did a really poor job in answering them. Especially with Kennedy's questions.

Overall I felt that the only sure vote to uphold the state was Scalia. To me it was clear that the justices want to find for Padilla but they are having a difficult time finding a workable system. Kennedy is barking at the moon.

I agree, it's a difficult issue. I think the position that the attorney should just shut up is the best one, as awkward as that result is.

Posted by: Daniel | Oct 14, 2009 12:03:26 AM

The other point, not really mentioned, is whether the attorney's advice was truly wrong. What is the likelihood, in the real world, of a guy here for 40 years getting deported for a pot offense?

Posted by: federalist | Oct 14, 2009 10:56:43 AM

You are correct federalist. Even if he had a immigration attorney that attorney could still have given him wrong advice. But to for me, that cuts against the argument that we should be making a rule based upon the pragmatical consequences. Scalia's 100% right that revoking the guilty plea disrupts the advantages to the government of a guilty plea in the first place. That's why a cost/benefit analysis of government interest vs defendant interest is a poor fit for a deciding this case.

That's why I like the shut up rule regarding the collateral consequences. It's not because the defendant is "better off" (even though I think at the margin he is) but because it's the honest response; it's true.

In's interesting to me because in psychology and medicine we don't think twice about giving someone a referral to an area that's outside our field of expertise. It may very well be true that the person can't afford a specialist. But as professional fields we have decided long ago that no advice is better than wrong advice. I find it bewildering that the lawyer profession struggles with that basic concept.

Posted by: Daniel | Oct 14, 2009 11:48:47 AM

There is an easy solution though. A database constantly updated that tracks all direct and collateral consequences. After entering some relevant data, and based on the conviction, with a stroke of a key everyone would know of all the consequences. Print it out and the defendant signs it. It's surprising no company marketed this yet. For that matter, why doesn't the government have such a database? Who knows the laws better than the governments that passed them?

Posted by: George | Oct 14, 2009 12:30:24 PM

I read the transcripts and I guess I just don't understand the problem. The lawyer didn't say "I don't know," he gave wrong legal advice. I just don't see why they wouldn't apply Strickland and move on. The client should have had the opportunity to weigh the risks of trial v. the risk of deportation. If the lawyer didn't know, he should have said so. And what was with the questioning about extending the colloquy? I think it was clear from this OA that 8 out of 9 of these justices have never actually been involved in a guilty plea colloquy. They made it sound like this thing would go on for hours and the justice system would grind to a halt. Just silly. If the guy wants to protest, let them apply Strickland and move on.

Posted by: Talitha | Oct 14, 2009 12:46:10 PM

Come to think of it, maybe the government does not want a defendant to know all the consequences. Trial could be too tempting.

Posted by: George | Oct 14, 2009 1:05:42 PM


I would think for someone caught transporting a half ton of pot removal would in fact be fairly automatic. The guy did not afaik plead to a low level possession count. And since immigration is a civil matter they could probably use the full amount even if the state didn't. Couple this with the feds still being able to prosecute criminally if they want to and I just don't see Padilla having a good argument for staying in the country.

Posted by: Soronel Haetir | Oct 14, 2009 9:16:22 PM

SH, the issue is not whether he'd stay if they focused on him, but whether they'd even focus on him. There are a lot of criminal aliens here.

Posted by: federalist | Oct 15, 2009 2:41:04 PM


I'm not certain but I believe this only became an issue because the feds did in fact begin removal proceedings. I believe this collateral attack on the plea is an attempt to derail those proceedings.

Posted by: Soronel Haetir | Oct 16, 2009 10:01:39 AM

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