Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, October 23, 2014

Effective Plea Bargains for Noncitizens

I have posted Effective Plea Bargains for Noncitizens on SSRN.  Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.

I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April.  The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.

Craig Estlinbaum

October 23, 2014 in Conferences, Faculty, Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Thursday, July 3, 2014

Interesting Blog Posting About 7th Circuit Criminal Law Decision

The 7th Circuit issued a recent decision addressing the definition of sexual activity under a criminal law statute. Some readers may find this blog posting  (which discusses this case) of interest because of Judge Posner's statutory construction analysis. 

 Hat Tip: Melissa Baduria

Mitchell H. Rubinstein

July 3, 2014 in Criminal Law | Permalink | Comments (1)

Wednesday, April 30, 2014

New Mexico Law Review: Call for Papers

Saturday, March 15, 2014

Texas: Miller v. Alabama Applies Retroactively

The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively.  In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age.  The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).

A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery.  The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict.  Maxwell was 17 when the crime occurred.

Texas utilizes the frameword announced in Teague v. Lane, 489 U.S. 288 (1989) to determine whether or not a Supreme Court opinion should be applied retroactively to criminal convictions already final following direct appeal.  The Teague framework provides a new rule applies retroactively in a latter collateral proceeding only if the rule (1) is substantive or (2) is a "watershed" rule of criminal procedure.  This court noted the split in authority nationally on Miller's retroactivity, and the court further observed a split on the question between two Fifth Circuit panels -- Texas lies within the Fifth Circuit.  The majority examined the cases creating the split, acknowledged the Supreme Court must ultimately resolve the split, looked into its "crystal ball" and concluded that evenutally the Supreme Court would apply Miller retroactively.   

The court decided the case 5-4 and generated short two dissents (see here and here).  This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity.  We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.

Craig Estlinbaum

March 15, 2014 in Constitutional Law, Criminal Law, Recent Developments | Permalink | Comments (0)

Thursday, March 6, 2014

Interesting Infographic on Crime Stats

Readers who are interested in criminal statistics such as the the number of rapes and murders may find this infographic of interest, here

Mitchell H. Rubinstein

 

Hat Tip:    Viviana Shafrin

March 6, 2014 in Criminal Law | Permalink | Comments (0)

Sunday, March 2, 2014

The 20 Most Infamous Celebrity Mug Shots of All

Readers may find the article,  “The 20 Most Infamous Celebrity Mug Shots of All” of interest. hich Here is the link: http://blog.arrestrecords.com/the-20-most-infamous-celebrity-mug-shots-of-all-time/.

Guess who number one is? Tim Allen

Hat Tip: Ashleigh Bell

Mitchell H. Rubinstein

March 2, 2014 in Criminal Law | Permalink | Comments (0)

Wednesday, February 19, 2014

Texas Tech: 2014 Criminal Law Symposium

Texas Tech Law Review will host its 2014 Criminal Law Symposium on the subject of Homicide on April 4 at the Mark and Becky Lanier Auditorium on the campus in Lubbock.  The schedule includes Carol Steiker (Harvard) as keynote speaker and panels on intentional homicide, unintentional homicide and capital murder.  For more information, look here.

Craig Estlinbaum

February 19, 2014 in Conferences, Faculty, Criminal Law | Permalink | Comments (0)

Thursday, October 24, 2013

Cohen on State v. Miller

Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013).  His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.

Craig Estlinbaum

October 24, 2013 in Constitutional Law, Criminal Law, Due Process, Ethics | Permalink | Comments (0)

Tuesday, October 8, 2013

Iowa Law Review: Predicting Wrongful Convictions

The Iowa Law Review with the Innocence Project of Iowa and the University of Iowa Center for Human Rights will present Professor Jon Gould on "Predicting Wrongful Convictions" on October 10.  The free lecture will be held in the Levitt Auditorium on the Iowa law school campus.  Gould is a professor at the American Univesity's Department of Justice, Law & Society and Principal Investigator at the department's Preventing Wrongful Convictions ProjectProfessor Gould's article, which includes three co-authors, is scheduled to be published in an upcoming issue of the Iowa Law Review.

Craig Estlinbaum

October 8, 2013 in Conferences, Faculty, Criminal Law, Due Process, Equal Protection, Law Review Articles | Permalink | Comments (0)

Friday, July 5, 2013

Yale Law Journal Symposium on Gideon v. Wainwright

The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright.  This issue includes:

Craig Estlinbaum

July 5, 2013 in Constitutional Law, Criminal Law, Due Process, Law Review Articles | Permalink | Comments (0)

Tuesday, May 28, 2013

Bibas: Justice Kennedy's Sixth Amendment Pragmatism

Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN.  Here is the abstract:

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.

The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.

This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.

Craig Estlinbaum

May 28, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Sunday, May 19, 2013

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

May 19, 2013 in Articles, Criminal Law, Ethics, Interesting Cases | Permalink | Comments (1)

Wednesday, May 8, 2013

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum

May 8, 2013 in Constitutional Law, Criminal Law, Interesting Cases | Permalink | Comments (0)

Monday, May 6, 2013

King; Enforcing Effective Assistance after Martinez

Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN.   Here is the abstract:

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.

This Essay is forthcoming in the Yale Law Journal.

Craig Estlinbaum

May 6, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Saturday, April 27, 2013

Extraneous Facebook Remarks Leads To Remand For Re-Sentencing

Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing.  From the story:

...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.

The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."

Craig Estlinbaum

April 27, 2013 in Articles, Criminal Law, Interesting Cases | Permalink | Comments (0)

Thursday, April 25, 2013

To Mirandize Or Not To Mirandize

Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days.  I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here: 

Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments.  As an aside, I predict a healthy increase in law review submissions by  professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.

Craig Estlinbaum

April 25, 2013 in Articles, Constitutional Law, Criminal Law, Current Affairs, Law Review Ideas | Permalink | Comments (0)

Tuesday, April 23, 2013

Probable Cause Order Details Charges Against Former Texas Prosecutor

On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.

Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife.  Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated. 

In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online hereThis article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.

Hat Tip:  Grits For Breakfast

Craig Estlinbaum

April 23, 2013 in Criminal Law, Current Events, Ethics, Texas Law | Permalink | Comments (0)

Roberts on Effective Plea Bargaining Counsel

Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network.  The article appears to have been accepted for later publication by the Yale Law Journal.  This is the abstract:

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.

In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.

The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?

Roberts' article highlights proposed professional and ethical norms relating to plea bargaining.   The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings.   The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges.  This article is recommended reading.

Craig Estlinbaum

April 23, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Saturday, April 20, 2013

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

  1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
  2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
  3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

April 20, 2013 in Criminal Law, First Amendment, Interesting Cases, Judges | Permalink | Comments (0)

Sunday, April 14, 2013

NIU Law Review Symposium: Eavesdropping, Wiretapping and Privacy

The Northern Illinois Law Review will host a symposium titled "Eavesdropping and Wiretapping in Illinois" on April 19, 2013.  Here is the announcement, which includes links for times, location, registration and agenda, among other things.

Craig Estlinbaum

April 14, 2013 in Conferences, CLE, Conferences, Faculty, Constitutional Law, Criminal Law | Permalink | Comments (0)