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March 27, 2017

Dynamic SCOTUS week for criminal law fans

I am on the road and thus going to be on-line and blogging only intermittently over the next few days. Perhaps for that reason, I am anticipating that the Supreme Court is going to be up to some interesting criminal work, given that this morning there will be an order list and Tuesday and Wednesday opinions may be released. In addition, a majority of cases up for oral argument this week involve criminal law issues.  Via SCOTUSblog postings, here are links/previews for the criminal law cases the Justices will be hearing on Tuesday and Wednesday:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining


Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.


Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. ยง 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

March 27, 2017 at 07:58 AM | Permalink


Lee was pretty much the issue I saw ducked in Padilla. And I believe that if Strickland is to be meaningful that the lower court got this one right. You can't be prejudiced by an attorney's bad advise if the bad consequences would follow regardless of that advise.

Posted by: Soronel Haetir | Mar 27, 2017 11:04:50 AM

In order:


Posted by: Daniel | Mar 27, 2017 11:59:11 AM

"And I believe that if Strickland is to be meaningful that the lower court got this one right."

Insofar as the second prong of Strickland is still good law I agree. However, I remain dubious as to the vitality of the second prong. The underlying problem is that in this case--like so many others--you can't unring the bell. Every defendant is going to think that the bad advice prejudiced him under the theory "if I only knew then what I know now" and every prosecutor is going to yawn and say "not a chance." So what does one do? The second prong of Strickland is really replacing the defendant's judicial roulette with judge-made crystal ball gazing. Is that replacement an actual improvement in the social good? Perhaps from the perspective of judicial economy it is but from the perspective of justice probably not.

Posted by: Daniel | Mar 27, 2017 1:16:47 PM

My thoughts:

Lee - I doubt it's per se irrational. If someone is facing life in prison and they get a deal where they just leave the country, they might want to take it (I know of one person who did just that).

Turner - Sounds like precisely the case that's ripe for a wrongful conviction. I don't buy the Circuit split that post-trial conduct of an alternate suspect is relevant. That being said, the items are undoubtedly exculpatory. The question is whether they're material. The confessions create some issues. Some of the district court rulings seem problematic (the fact that impeachment isn't material because the witnesses had been impeached on other grounds when those other grounds weren't enough to shake the jury's belief in their credibility). I could see this going either way.

Honeycutt - Don't know, too much effort to find out.

Posted by: Erik M | Mar 27, 2017 2:31:15 PM

:joint and several liability:

Does this involve marijuana?

Posted by: Joe | Mar 27, 2017 2:32:26 PM

Looks like it was related to the manufacture of meth (specifically iodine).

Posted by: Erik M | Mar 27, 2017 3:05:44 PM

To me, Lee depends upon how "objectively" you read Hill's reference to a reasonable probability that the defendant would reject an offer and go to trial. Some of the language in Hill suggests that strength of the case is one factor in determining if a defendant is credible in claiming that they would go to trial but that the ultimate test is factual (neither objective nor subjective) -- did the bad representation lead to defendant waiving the right to trial.

Posted by: tmm | Mar 28, 2017 5:29:07 PM

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