Friday, April 12, 2013
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.
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.
Tuesday, March 26, 2013
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.
Wednesday, March 13, 2013
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)
Monday, March 11, 2013
Thursday, February 7, 2013
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.
Monday, November 26, 2012
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 legalwritersink.com and prisongrievances.com. 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
Monday, July 30, 2012
Thursday, March 1, 2012
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
Wednesday, February 9, 2011
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
Saturday, January 29, 2011
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
Friday, May 28, 2010
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
Wednesday, May 26, 2010
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
Tuesday, May 4, 2010
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
Monday, March 15, 2010
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.
Tuesday, March 9, 2010
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.
Tuesday, February 16, 2010
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.
Saturday, February 13, 2010
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.
Thursday, January 7, 2010
Have you ever wondered how the law might punish Saimese twins if one committed murder (or any other serious crime) without the other being involved? If so, you might want to read Daniel Engber's interesting and informative essay on just this subject in Tuesday's Slate.
Hat Tip: Paul Cassell at The Volokh Conspiracy
Wednesday, December 16, 2009
New York Times reporter Adam Litvak previews a U.S. Supreme Court case concerning violate juveniles who were sentenced to life without the possibility of parole even though they did not kill. There are apparently less than 100 such prisioners world wide and 88 of them are in Florida. As the article explains:
“By the 1990s, violent juvenile crime rates had reached unprecedented high levels throughout the nation,” Mr. McCollum wrote. “Florida’s problem was particularly dire, compromising the safety of residents, visitors and international tourists, and threatening the state’s bedrock tourism industry.” Nine foreign tourists were killed over 11 months in 1992 and 1993, one of them by a 14-year-old.
Mr. Snyder, the state legislator, put it this way: “Instead of the Sunshine State, it was the Gun-shine State.”
In response, the state moved more juveniles into adult courts, increased sentences and eliminated parole for capital crimes.
The full article is available here. Look for the Supremes to strike down this punishment as cruel and unusual under the 8th Amendment. For those interested in criminal law, law review commentary seems appropriate.
Mitchell H. Rubinstein
Thursday, November 19, 2009
Disbarred defense attorney Lynne Stewart's conviction was affirmed by the 2d Circuit, but the court was very critical of the short prison sentence she was ordered to serve for providing material support to a terror conspiracy.
A divided appellate court said that Southern District Judge John G. Koeltl must take a second look at the sentence of two years and four months he meted out in 2006, a stretch that Ms. Stewart observed she could do "standing on her head." (NYLJ, Oct. 17, 2006). Stewart's bail was also revoked.
Mitchell H. Rubinstein