Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, April 23, 2013

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)

Friday, April 12, 2013

Eagly on Gideon in Immigration Proceedings

Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation. 

Professor Ingrid V. Eagly's (UCLA) article, "Gideon's Migration," posted on SSRN this week, makes a valuable contribution toward this issue.  Here is the abstract.

For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.

From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.

Craig Estlinbaum

April 12, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Tuesday, March 26, 2013

Thurgood Marshall Conference: The Constitutionalization of Immigration Law

The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here).  I am honored to be included among the speakers at this conference.  I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon.  I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel.  Topics covered in the conference are:

  • Pleanary  Power - Supreme Court Deference to the Executive and Legislative Branches:  Brief History of the Chinese Exclusion Cases;
  • Fifth Circuit Practice Pointers - A View from the Bench;
  • Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
  • Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
  • Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
  • Sixth Amendment Right to Effective Assistance of Counsel;
  • Fourth Amendment Search and Seizure in Immigration Proceedings;
  • Restitution and Compensation for Victims of Human Trafficking in the United States; and
  • Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.

Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation.  I am honored to participate in the comprehensive and timely conference.

Craig Estlinbaum

March 26, 2013 in Conferences, CLE, Conferences, Faculty, Constitutional Law, Criminal Law, Federal Law | Permalink | Comments (0)

Wednesday, March 13, 2013

Texas Tech Law Review to Host Juveniles & Criminal Law Conference

The Texas Tech Law Review will host its 7th Annual Criminal Law Symposium: Juveniles & Criminal Law, on April 5, 2013, at the Mark and Becky Lanier Auditorium on the law school campus.  The program as presented on the law review website:

Keynote Address:  Franklin Zimring (Boalt)

Panel 1:  When are (should) juveniles (be) tried as juveniles and when as adults?

  • Ellen Podgor, Moderator (Stetson)
  • Carissa Hessick (Arizona State)
  • Janes HJoeffel (Tulane)
  • David Pimentel (Ohio Northern)
  • Christopher Slobogin (Vanderbilt)

Lexis/Nexis Luncheon Speaker:  Arnold Loewry (Texas Tech)

Panel 2:  Do (should) juveniles have more, less, the same, or different rights?

  • Richard McAdams, Moderator (Chicago)
  • Ronald Allen (Northwestern)
  • Tamar Birckhead (North Carolina)
  • Patrick Metze (Texas Tech)
  • David Tanenhaus (UNLV)

Panel 3:  What is (should be) the scope and limitations of juvenile punishment?

  • Joshua Dressler, Moderator (Ohio State)
  • Joseph Kennedy (North Carolina)
  • Michael Perlin (New York)
  • Kevin Saunders (Michigan State)
  • The Honorable Irene Sullivan (State of Florida)

More Information.

Craig Estlinbaum

March 13, 2013 in Conferences, CLE, Conferences, Faculty, Criminal Law, Law Professors, Law Review Articles | Permalink | Comments (0)

Monday, March 11, 2013

Oregon Death Row Inmate Rejects Reprieve

What happens when a condemned murderer receives a reprieve from death row from the governor, but doesn't want it?  This question likely will be answered soon by the Oregon Supreme Court

Craig Estlinbaum

March 11, 2013 in Criminal Law, Current Affairs, State Law | Permalink | Comments (0)

Thursday, February 7, 2013

Effective Assistance in Plea Negotiations Symposium at Duquesne

Professor Doug Berman at Sentencing Law & Policy commented this morning on what promises to be a very timely and important symposium upcoming at Duquesne Law School. The syposium is called "Plea Bargaining After Lafler and Frye" and will be held February 28-March 1 at Duquesne in Pittsburgh in cooperation with the Criminal Justice Section, White Collar Crimes Committee, Mid-Atlantic Region.  The symposium schedule is here.

Craig Estlinbaum

February 7, 2013 in Conferences, CLE, Criminal Law, Ethics, Law Schools | Permalink | Comments (0)

Monday, November 26, 2012

Novel to Help Jailhouse Lawyers

Interestingly, Terri LeClerq recently wrote a graphic novel to help prisioners. Here is how she describes this important project:

Maybe you wonder why inmates need help learning to write complaints (grievances).  With an average reading level of 5th grade and lots of misinformation, inmates rarely write a grievance that succeeds.  They need our help.

I've written college texts, legal writing columns, and a prison-conditions blog.  Review me at  and  I've spent 10 years creating this graphic novel

  • to help the 1 in 100 Americans in our prison system,
  • to help the courts receive credible writs, and
  • to help taxpayers avoid paying for time-consuming, frivolous, or erroneous filings.

Multitudes of prison officials and staff, court personnel, defense and plaintiff attorneys, reading specialists, and academics have reviewed the manuscript.  A professional artist and professional letterer (yep!) worked to make each page both entertaining and educational.  The formerly incarcerated who have reviewed it are ready to send a graphic novel back to their old roomies.

Additional information can about this project can be found here

Mitchell H. Rubinstein


Hat Tip: Legal Writing Prof Blog


November 26, 2012 in Criminal Law | Permalink | Comments (0)

Monday, July 30, 2012

'Public' Tweets Are Subject to D.A.'s Subpoena, Judge Says

The case stems from the Occupy Wall Street protests. A copy of the July 2, 2012, New York Law Journal article discussiing this issue is available here.

Mitchell H. Rubinstein

July 30, 2012 in Criminal Law | Permalink | Comments (0)

Thursday, March 1, 2012

Judge Orders Defendant's Mouth Taped Shut

We do not normally cover criminal law issues on this blog, but this one caught my eye. A Pennsylvania state court ordered a defendant's  mouth taped shut by sheriff’s deputies for repeatedly disrupting jury selection for his trial. Additionally details are available from ABA Journal Blog.

Mitchell H. Rubinstein

March 1, 2012 in Criminal Law | Permalink | Comments (0)

Wednesday, February 9, 2011

Now We Glorify Bail Bondsman!

I was amazed that the New York Times ran an article about bail bondsman, here.  I guess the point of the story was to profile one successful bondsman for the stars-but so what. As the article points out, bail bondsman are basically insurance agents (except they may hire bounty hunters to track down people who may have jumped bail). Before they make loans, they check out defendants assets. I suppose their might be value in utilizing an agent who will keep the stars assets private, but the article does not highlight that.  

Mitchell H. Rubinstein

February 9, 2011 in Criminal Law | Permalink | Comments (2)

Saturday, January 29, 2011

Confessing To A Crime, But Innocent

As hard as it is to believe, defendants sometimes confess to crimes that they did not commit. This occurs in labor law as well when someone admits to misconduct. A recent New York Times article documents this and cites to a law review article where several defendants were later released (despite their confession) based upon DNA evidence. That article is available here.

Mitchell H. Rubinstein

January 29, 2011 in Criminal Law | Permalink | Comments (0)

Friday, May 28, 2010

Interesting Story About Former DA Robert Morgenthau

The ABA Journal ran an interesting story about Robert Morgenthau which readers may find of interest, here. Morgenthau was the Manhattan DA for 35 years and at age 91is of counsel at Wachtell, Lipton, Rosen & Katz in New York City. He also served in the Kennedy Administration. The DA portrayed on the TV Show Law and Order loosely is modeled after him.

I never met Mr. Morgenthau. However, at age 91 I hope that I am not working in a law firm! But then again, maybe I will be lucky to be working at all!

Mitchell H. Rubinstein

May 28, 2010 in Criminal Law | Permalink | Comments (0)

Wednesday, May 26, 2010

Ankle bracelet and breathalyzer technology

Lohan's ankle bracelet has breathalyzer technology is an interesting May 25, 2010 AP article that was picked up by Yahoo News. What attracted me to this article was the fact that ankle bracelets now can detect if a person has been drinking (No, I am not a Lohan fan and  I am not even sure who Lohan is). As the article explains:

The bracelet uses the same technology as a breathalyzer, but instead of checking the breath for alcohol, it samples the perspiration on the skin. After alcohol is consumed, it eventually enters the bloodstream and a small amount is expelled through the skin.

The bracelet tests the skin every half hour. If there's alcohol, it causes a chemical reaction in the device's fuel cell. Usually once a day, the information is sent over phone lines to the company, which alerts the courts or probation officer if alcohol is detected at a blood-alcohol level of 0.02 or higher.

Mitchell H. Rubinstein

May 26, 2010 in Criminal Law | Permalink | Comments (0)

Tuesday, May 4, 2010

Ineffective Assistance Counsel Case In New York

The March 21, 2010 New York Times ran an interesting story about a pending case concerning the ineffective assistance of counsel. The article trys to put a human face on the defendant who plead to felony instead of a misdemeanor. The article is worth a read.

Mitchell H. Rubinstein

May 4, 2010 in Criminal Law | Permalink | Comments (0)

Monday, March 15, 2010

Fifth Circuit on Leg Shackles and Due Process

Fifthcircuit Last week, the Fifth Circuit Court of Appeals reversed a drug conviction against a pro se defendant, finding the district court'violated the defendant's Due Process rights when it ordered him shackled in leg irons during the jury trial.  United States vs. Jose Enrique Banegas, No. 08-10915 (5th Cir. March 9, 2010).

Federal authorities arrested Banegas during an undercover drug investigation and charged him with drug trafficking.  Banegas represented himself pro se at trial (the court appointed a public defender as standby counsel).  The trial judge ordered Banegas be shackled during trial "the same 'as everyone in this court who has tried a case pro se that's incarcerated."  Banegas objected to wearing the leg irons during trial on grounds that the shackles were prejudicial -- the trial judge overruled the objection, commenting that she could not see the shackles and that it would be "difficult" for the jury to see them.  The jury convicted Banegas - the court sentenced him to 365 months in prison.

The United States Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 629 (2007) (Deck was a 7-2 decision; Justice Thomas's dissent is here) controlled the circuit court's analysis.  In Deck, the Court stated that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in exercise of its discretion, that they are justified by a state interest specific to a particular trial."  The Deck Court considered shackling to be "inherently prejudicial" and required trial courts to state the reasons for shackling a defendant outside the jury's presence prior to continuing the trial before the jury with the defendant in leg irons.

The circuit court rejected the government's argument that an objection for "prejudice" did not preserve the constitutional error - prejudice, the circuit court stated, "speaks precisely to the due process concerns that shackling raises."  The court then dismissed the reason for shackling provided by the trial court - that all incarcerated pro se defendants are shackled - as being insufficient to justify shackling this particular defendant in this particular trial.  The court noted that the particularized safety and security concerns normally required to justify shackling a defendant during trial were absent from this record.

Finally, the circuit court noted that when the district court fails to state particular reasons for placing a defendant in leg iron during a jury trial and there is a question whether or not the jury could see the irons, the government bears the burden to prove beyond a reasonable doubt that the irons could not be seen by the jury, and further, to show beyond a reasonable doubt that the shackles, if so seen, did not contribute to the guilty verdict.  With no factual support for this proposition in the record, the circuit court determined that the leg irons were visible to the jury.  The court reversed and remanded the case for a new trial.

Trial judges should pay close attention to the record when taking security measures that may affect a defendant's right to a fair trial.  The Supreme Court has noted that a decision to shackle a defendant, or a decision to take other security measure, has presumably negative effects not readily appearent in the record.  Therefore, absent sound justification, a decision to order a defendant into leg iron will receive close scrutiny on appeal.  Deck and now Banegas show that the court should make a trial-specific finding in the record regarding the need for the security measure being taken at trial.  Taking the time to reduce to written order the evidence demonstrating the security risk and the steps taken to minimize the risk along with a finding that the steps taken are the least restrictive to the defendant's fair trial right among those availble to the court will help judges make and articulate a decision with the best chance to withstand appellate scrutiny.

Craig Estlinbaum

March 15, 2010 in Constitutional Law, Criminal Law, Due Process, Interesting Cases | Permalink | Comments (0)

Tuesday, March 9, 2010

Trial Judge Rescinds Texas Death Penalty Ruling

Court watchers may recall that last week, a Harris County, Texas (Houston) district judge held that the Texas death penalty procedures were unconstitutional.  Today, Brian Rogers (Houston Chronicle) reports that the same judge rescinded that earlier order this afternoon and set the matter for further briefing and a hearing next month.

Craig Estlinbaum

March 9, 2010 in Criminal Law, News, Texas Law | Permalink | Comments (0)

Tuesday, February 16, 2010

Louisiana Sues Death Row Inmates

In an unusual twist, the Louisiana Department of Public Safety and Corrections sued all 84 prisoners on death row in the state last Friday in an effort to prevent the condemned inmates from raising an Administrative Procedures Act challenge against the state’s lethal injection drug protocols.

The Department's lawsuit comes as a counterclaim in death row prisoner Nathaniel Code's legal challenge to the State's lethal injection protocols.  Code's case argues that Louisiana has not met the Administrative Procedures Act's requirements for creating lethal injection guidelines.

District Judge Michael Caldwell of Baton Rouge dismissed Nathaniel Code’s suit on January 8; the Department's countercaim seeks a definitive ruling against all other death row inmates that Louisiana’s three-drug lethal injection protocol was not subject to the Act.

According to the Ridgeway and Casella post linked above, several states have considered whether lethal injection drug protocols are subject to state administrative requirements.  Louisiana, however, is apparently the first state to address this issue by bringing suit against all its death row inmates at one time.

Craig Estlinbaum

February 16, 2010 in Criminal Law, Interesting Cases, State Law | Permalink | Comments (0)

Saturday, February 13, 2010

Jury Acquits West Texas Whistle-Blower

A West Texas jury acquitted Anne Mitchell on misuse of information charges on Thursday after deliberating less that one hour .  Prosecutors charged that Mitchell, while a nurse at Winkler County Memorial Hospital in Andrews, Texas, used her position to collect and transmit confidential medical records to the state medical board with intent to harm the treating physician, Dr. Rolando G. Arafiles Jr.  Mitchell communicated to the board specific allegations against Dr. Arafiles regarding standard of care violations and included references to confidential patient file numbers.   The New York Times has a story on the jury's decision here - for a local point of view, there is this Fort Worth Star-Telegram story.

Mitchell has filed a federal lawsuit against the county, the hospital and several individuals including the sheriff, the physician and the district attorney.  That lawsuit is pending in the Western District of Texas, Pecos Division.  Mitchell's petition is here.

Craig Estlinbaum

February 13, 2010 in Criminal Law, Employment Law, News | Permalink | Comments (0)