Tag Archives: Effective Assistance of Counsel

Justice Stevens’ Last Hurrah (Maybe)

Last week the U.S. Supreme Court  handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that  criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction.  Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction.  One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected.  After Padilla, that will no longer be the case.  And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.

What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings.  An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial’s] fundamental fairness that is “implicit in the concept of ordered liberty.” ”

For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.

Just Another Day at the Office

I was helping out on a criminal matter that resulted in a good outcome for the client.  What started as a multi-count indictment with gun and drug possession charges and a fairly lengthy sentence, ended in the client’s release for time served.  The attorney I was working with even managed to reinstate his probation even though the client had been “revoked” before the criminal case came about.  This outcome was largely the product of shoddy police work and the prosecutor, to his credit, knew it; hence, the reduced charges.  Client ended up pleading guilty to misdemeanor obstruction.

To the general public this result may seem like familiar examples of the criminal justice system run amok and criminal defense attorneys up to their usual tricks .  Even the judge, who accepted the plea but had almost no knowledge of how the police trampled on the client’s constitutional rights in their haste to rid society of another criminal element, was taken aback by the deal the client received from the prosecutor.  To hear the incident recounted during the plea proceedings, one would be hard pressed to think otherwise: guns and drug-like substances were recovered, client’s friend fleeing the scene, client slamming the door on the police and then attempting to flee himself.  But what was not disclosed and what really turned the case around was how the police violated god knows how many constitutional and statutory provisions against unreasonable searches and seizures when they searched the apartment client was at without a valid warrant, and the one they eventually did get was just as good as no warrant at all when they failed to comply with appropriate procedures.

The unfortunate thing is that the public will, for the most part, never learn of what the police did and, for that matter, didn’t do, in the client’s case.  The fortunate thing though is that the client had  attorneys who did find out what happened (not always a given) and raised hell with the prosecutor about it as was their duty under the Constitution.