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April 17, 2010

Effective early commentary on SCOTUS ruling in Padilla

This weekend's must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court's important decision late last month in Padilla v. Kentucky. The piece is forthcoming in the May 2010 issue of The Champion, and it is titled simply "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction."  Here is the abstract:

In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty.  It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing.  While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction.  But if that were all, it would not “mark a major upheaval in Sixth Amendment law,” as the concurring Justices warned.  While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients.  The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.

April 17, 2010 at 02:59 PM | Permalink


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The number of collateral consequences is infinite, and all the criminal must be set loose. For example, an employer must calculate the value of the defendant at work and balance it against the higher risk of torts litigation for negligent retention. The lawyer must predict and read the mind of the employer to warn, a plea may cost your job.

If that is not the case, specifically, where is the perimeter of this decision?

As with Gideon, this decision generates lawyer jobs, and sets free the clearly guilty. A favor was not done to guilty defendant, Gideon. He spent his freedom drinking and beating up the wife, and died prematurely.

Posted by: Supremacy Claus | Apr 17, 2010 3:50:41 PM

See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).

1. Failure to advise of sex offender registration status is not IAC.

2. In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing. 29 Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

Miller, 64 M.J. at 459.

3. See also, Denedo v United States, 64 M.J. 114 (C.A.A.F. 2008), aff'd and remanded, United States v. Denedo, 129 S.Ct. 2213 (2009). This was a writ of coram nobis case on the duty to accurately tell of immigration consequences. (The first portion of the case relates to jurisdiction.) The case was on remand for additional findings, and may be affected by Padilla. On remand the lower court found that even if IAC, (http://goo.gl/xas4) no prejudice, so the case is on its way back to CAAF.

Posted by: Phil Cave | Apr 17, 2010 3:52:49 PM

In Florida, the failure to advise any person pleading to a sex offense of any nature will consign him/her to living under a bridge. In some states a dwi plea would prevent the defendant from driving a school bus.
Any professional who pleads to a tax fraud case might not be licensed to practice their accounting or other profession. A college student pleading to a dwi or other offense might not get into professional school or be admitted to the bar after law school. Dr. so and so will not be admitted to practice medicine if he pleads to a prescription drug violation.

One blogger wrote in a previous blog on Padilla that in North Carolina the judge inquires of the defendant if he/she is a citizen. That should be on the agenda dof every judicial conference anywhere in the country this year where judge functions are discussed. The failure to advise by the court should be grounds for setting aside a plea. The Tea Party would use an Obama city ordinance violation in years past as grounds for deporting him back to Hawaii. The court cannot assume that because the defendant standing in the dock is named Chris Rockefeller that he is in fact a citizen. A lawyer can not assume that because he is looking at citizenship documents proving his client to be a born in America citizen or a naturalized one, that his client is going to get a trial at all if some act of Congress styled the Patriot Act is invoked in some prosecution for his patriotic client.

Posted by: mpb | Apr 19, 2010 4:49:42 AM

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