2011 Year in Review

Thanks to those who visited Invisible Man in 2011.  I hope this blog has been of use to some.  The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation.  For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013.  I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.

WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.

Thank you all again for taking time out to visit the Invisible Man.  I look forward to another year of blogging on Padilla and other issues.

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The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.

Click here to see the complete report.

UPDATED: Gaitan (NJ Supreme Court) Oral Arguments Webcast

The November 9th oral arguments before the New Jersey Supreme Court in State v. Gaitan, which presents the issue of whether Padilla can be applied retroactively, is now available for viewing online.  Note that Mac users might have trouble playing the webcast.

UPDATE: I found that it wasn’t easy playing the webcast on a PC either.  For those who have had trouble doing so, I would recommend the following procedure: copy the link for the Gaitan webcast (not the one on this blog post, but the one on the webpage to which it directs you under the Gaitan case) and paste it directly into Windows Media Player (from WMP, click on File then Open URL).

11-11-11: Veterans Day and Armistice Day

In commemoration of those who have served their countries with honor and bravery, I post here a video clip of Martin Luther King Jr.’s speech on the Vietnam War.  I do this not to denigrate the sacrifices of those to whom this day is dedicated but rather in hope that those who have gone a different route do not take for granted and are not blinded to the circumstances which have perpetuated the scenarios and theaters that have become the breeding ground for such sacrifices.

A New Form of Apartheid

I was reading a neighborhood newsletter the other day and came across a Q & A column with someone who works at a nearby homeless shelter.  In addition to its tradition function as place of respite for the homeless, the shelter also provides education, job and housing-related support for the down and out.  Services that are more important now than ever with the country in its second worst economic decline since the Great Depression.  Real solutions for folks with real issues.

This makes one wonder why efforts of similar utility and foresight cannot be implemented on a more systemic level.  Especially by those who do little else but profess their affinity for the American people.  President Obama and his use, or, more aptly, disuse, of his presidential pardon power comes to mind here.  According to a recent New York Times report:

In the months since the end of the 2010 fiscal year, the Obama administration reduced the backlog [of clemency applications] substantially by denying nearly 4,000 petitions while granting 17 pardons. The first nine of those were granted last December, barely avoiding a record set by President George W. Bush for the longest wait for a president’s first pardons.

Here is a chart published by the Pardon Power blog comparing Obama’s clemency record with that of other Presidents:

President              Days before First Commutation of Sentence
———–              ———————————————–
Obama                1,004 … and counting
Clinton                  672
Reagan                  317
Eisenhower           282
Nixon                    282
H.W. Bush             206
Carter                    82
Ford (s)                  61
Truman (s)             54
Johnson (s)            30
Kennedy                 19

If there’s anyone who really needs a second chance of sorts it is an ex-offender with a conviction on his or her record.  As I have mentioned previously, society has increasingly little tolerance for anyone who has had any kind of run-in with the law, whether it’s an arrest for shoplifting or a conviction for robbery.  Aside from depriving individuals of jobs on the basis of something that has very little if anything to do with their ability to actually do good work, this two-tier system [i.e., those with clean records and those with criminal histories] increases the racial and socioeconomic stratification that has led to anger and unrest around the country (as seen in the Occupy Wall Street movement and its cross-continental progeny).  That such an issue fails to attract the attention of those in Government is not a surprise.  Prisoners and arrestees do not have a lobby in Washington as far as I am aware.  But ignoring the country’s prison and ex-offender population, as Obama has been doing through his disuse of the pardon power, carries with it far greater risks in terms of social inequality and public dissatisfaction.

 

Split Decisions

Just a quick note that the Third and Tenth Circuit Court of Appeals denied petitions for rehearing in their respective cases dealing with Padilla retroactivity. It is notable that the denial in the Third Circuit came at the expense of the Government, which lost on appeal in seeking to block retroactive application of Padilla.

The Seventh Circuit is still considering whether to rehear its Padilla retroactivity case (Chaidez) and has asked for a response from the Government on the appellant’s request for rehearing.

Cert. Denied in Morris v. Virginia – UPDATED

Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application.  The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.

This ruling should come as no surprise, however.  The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue.  The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida.  I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs.  The Government’s brief can be found here, the appellant’s/defendant’s here.

Not the Last Word

Just a heads up that the losing parties in the three federal appellate court cases that dealt with Padilla retroactivity — Chaidez (7th Cir. — Padilla no retroactive), Chang Hong (7th Cir. — same) and Orocio (3d Cir. — Padilla retroactive) — have all signaled that they will be seeking en banc rehearings.  Also of note is that lawyers from the National Immigrant Justice Center have entered appearances on behalf of defendant in the Chaidez matter.  That will surely be one to watch.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.