SCOTUS decided Padilla v. Kentucky today holding (7-2) that defense counsel can provide ineffective assistance of counsel in failing to advise a criminal defendant of the risk of deportation. Part of the syllabus:

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

(a) Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6.

(b) Strickland v. Washington, 466 U. S. 668, applies to Padilla’s claim. Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, this Court has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9.

(c) To satisfy Strickland’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id., at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “‘[p]reserving the ... right to remain in the United States’” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr, 533 U. S. 289, 323. Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance. Pp. 9–12.

“An Unbroken Phalanx of Federal Authority” holds that deportation is a collateral consequence beyond ineffective assistance of counsel under Strickland. State v. Denisyuk, 2010 Md. App. LEXIS 49 (March 29, 2010):

What makes certain costs of a criminal conviction collateral? Let us count the ways. Or, at least, some of them as illustrative of the larger phenomenon. If following a conviction for drunken driving, the Motor Vehicle Administration should suspend or revoke one's driving privileges, that's a collateral consequence. If following a felony conviction, one may no longer vote or hold public office, that's a collateral consequence. If following a conviction, one may face enhanced sentences for future crimes, that's a collateral consequence. If following a conviction, one is found guilty of a violation of probation for some earlier offense, that's also a collateral consequence. If one is not eligible for parole or only for delayed parole, that's a collateral consequence. A prohibition on the right to bear firearms is a collateral consequence.

If following a conviction for a sexual offense, one is required to register as a sex offender, that's a collateral consequence. (In 2008, Maryland Rule 4-242(e) was further amended so as to add subsection (e)(2) and to require that a defendant pleading to any of a series of sex offenses be advised by judge, prosecutor, or defense attorney about the collateral consequences of having to register as a sex offender.) If following a conviction for child abuse, one is barred from employment as a teacher or a pediatrician or a scoutmaster, that too is a collateral consequence. If one's passport is lifted and one may not travel abroad, that's a collateral consequence. If following a guilty plea to bribery, one is forced to resign the Vice Presidency of the United States, that's a collateral consequence. If following a hypothetical plea to covering up a "third-rate burglary," one could be impeached as President of the United States, even that would be a collateral consequence. And, of course, being deported is also a collateral consequence, but there is nothing unique about it compared to some of the other collateral consequences. As United States v. Campbell, 778 F.2d 764, 769 (11th Cir. 1985), noted: "We do not find deportation so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea." See also United States v. Del Rosario, 902 F.2d 55, 59, 284 U.S. App. D.C. 90 (D.C. Cir. 1990).

In each of these instances, it is not the criminal court judge who takes the plea who imposes the consequence. The source of the consequence is some other person or some other arm of government or the operation of some other law. That's what makes it collateral.

. . .

It is, of course, impossible in this case not to feel compassion for the appellee. Banishment is a cruel fate. If that compassion is to be anything more than unrestrained emotion, however, it needs to be tempered with some realistic perspective. For a thirty-one-year-old man, who has lived in Harford County since he was a boy of 14 and who has grown up in the county and been graduated from the local high school, the prospect of being forever exiled to a world but dimly remembered was, indeed, a grim specter. It was a specter, however, that if it were to have had any helpful influence on the appellee's choices, needed to be confronted before he committed the crime, not later as he sat at the trial table.

At the trial table, he no longer had any realistic options left. His appreciation of the wages of sin was already hopelessly too late. The grim apparition of expatriation peered down mercilessly upon him, whether he folded his hand immediately or whether he dragged the game out for a few more fitful hours or days. Imminent exile was already an effective fait accompli. If he folded, he at least saved himself a few years in prison. Whether he folded or not, conviction was a virtual certainty. The guilty plea, under the circumstances, was the only smart choice to make. To try, in hindsight, to transfer his moment of meaningful choice from the crime scene forward to the trial table is simply to allow compassion to trump logic in an effort to give a forlorn defendant an essentially lawless break. The head cannot permit what the heart would like to do.

And the court couldn't wait until Padilla v. Kentucky, see preceding post, was decided?

A Colorado lawyer was suspended for charging an unreasonable fee and then divulging privileged matter after being discharged and then defaulting the disciplinary. In re Fain, 08PDJ002 (Colo. January 25, 2010).

Hat tip to LegalProfessionBlog.

Defendant was wrongly removed from the courtroom because he talked loudly with counsel. United States v. Ward, 09-1182 (8th Cir. March 29, 2010).

FL Defense lawyer finds grenade hanging from office doorknob, on ABAJ.com.

On ABAJ: Attorney Suspended for 6 Months Due to Paralegal’s Alleged Embezzlement of $80K--failure to supervise an employee.

Attorney General Eric Holder speaking at the Pro Bono Institute Gala on March 19, 2010:

In all of this work, you’ve helped people in crisis and in need. And, as you have stood by your clients, you have also stood up for, and honored, a basic principle that defines who we are as a nation of laws. As you all know, advancing the cause of justice sometimes means working for the sake of the fairness and integrity of our system of justice. This is why lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts – even when this requires defending unpopular positions or clients – deserve the praise and gratitude of all Americans. They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned. Let me be clear about this: Lawyers who provide counsel for the unpopular are, and should be treated as what they are: patriots.

On ABAJ.com: Stolen Case Info Creates Ethics Haze for Lawyers.

In today's NYTimes: The Right to Counsel: Woman Becomes a Test Case. A PD is alleged to have had a client plead to a felony that was not a felony, and a class action resulted that is argued this week in the New York Court of Appeals:

Usually, such a minor case would go unnoticed; a little test of the constitutional right to a lawyer, results unknown. Instead it has made Mr. Barber an emblem of the problems of the state’s ramshackle system of providing lawyers for indigent defendants. On Tuesday, New York’s highest court is to consider a class-action suit, filed by civil liberties lawyers in Ms. Hurell-Harring’s name, that seeks broad changes in the state’s frayed network of public defenders, who are routinely unmonitored and often overwhelmed. Her case, now being pored over by some of the state’s leading lawyers and judges, offers a window into the everyday corners of the legal system, where no one is usually watching.

NACDL's amicus brief is here.

In a lawyer discipline case for false billing investigative services to his firm and he kept the money (>$520k), the Georgia Supreme Court rejected a voluntary discipline submission with a 6-12 months suspension, retroactive to June 2009. In re Shaw, S10Y0571 (Ga. March 15, 2010). The Concurrence:

I write to express how troubling I find it that Shaw and, even worse, the State Bar apparently believe that such a short “break” from practicing law is appropriate discipline for his extended, extensive, and serious misconduct, notwithstanding the factors he presents in mitigation. I expect that most members of the Bar, and almost every citizen in this State, would be equally disturbed by that concept of attorney discipline.

He did repay the money before the disciplinary hearing, but 6-12 months for theft of half a million, retroactive to when he admitted fault? Hell of a deal.

The Houston criminal defense lawyer accused of barratry for allegedly using a homeless man to pass out business cards at the criminal court building? Grand jury declines to indict lawyer in barratry case.

On HuffPo: The Best Prosecutor? Perhaps a Defense Attorney about Manhattan DA Cyrus Vance's Conviction Integrity Unit.

Springs man allegedly started 2nd investment scam to pay lawyer in 1st scam. Well, only part:

The Colorado grand jury has alleged that Hamilton Alan Bird, indicted in 2006 for bilking $7.5 million from hundreds of investors in the western United States, began a second scam in which he collected $690,000 from investors in seven states, including Colorado.

Money from the second scam was used to pay his defense lawyer in the first case and to purchase furniture and cars, the grand jury alleged in an indictment returned today.

Defense counsel was ineffective for not putting on defendant's mental deficiencies in the penalty phase of his death penalty trial. Stanley v. Schriro, 2010 U.S. App. LEXIS 5175 (9th Cir. March 11, 2010):

Stanley has a stronger argument regarding use of the Hammitt interview as mitigation evidence during the sentencing phase. We pause for a moment to note our dissenting colleague's disturbing argument that the passage of time should somehow militate against habeas relief. See Dissenting Opinion, pp. 4175-76. Indeed, Stanley has met all deadlines in filing for post-conviction relief, including the restrictive AEDPA deadlines. After the Arizona Supreme Court affirmed Stanley's conviction in 1991, Stanley filed a preliminary petition for post-conviction relief in the trial court. The trial court took nearly five years to deny the petition even though [*27] it did not hold a hearing. Less than three weeks after the Arizona Supreme Court's denial of Stanley's state petition, Stanley filed his federal habeas petition. The district court took more than eight years to deny the petition. Stanley then promptly appealed to the Ninth Circuit. For the dissent to suggest that the lengthy process, none of it due to a lack of diligence on Stanley's part, is reason to deny him an evidentiary hearing violates every sense of fairness and justice. Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals "spent more than 3,400 years in prison for crimes for which they should never have been convicted . . ."). We note this phenomenon, not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice.

. . .

We cannot agree with our dissenting colleague that defense counsel's failure to inform the mental health experts of Stanley's statements to Dr. Hammitt was a reasonable tactical decision at the sentencing phase of the trial. It was entirely reasonable to keep this evidence out at the guilt phase because Stanley was still challenging the admissibility of his confession and testimony regarding his statements to Dr. Hammitt would have established an independent admission of guilt. However, that consideration evaporated once Stanley was convicted. Moreover, because the admission of expert testimony regarding the mental state of the defendant at the time of the offense is barred in Arizona, any attempt to introduce the expert testimony during the guilt phase would have been futile. Just the opposite was true for the sentencing phase. That was the time for defense counsel to muster all available mitigation evidence. Testimony from the defense experts would have countered Dr. Hammitt's testimony on a two-to-one basis and explained how Stanley could have acted in such a depraved manner at the time of the killings.

On the blog Otherwise, NJ Advisory Committee Suggests Supreme Court Re-examine Bar on Contingent Fees in Criminal Cases. It examines a disciplinary matter where a New Jersey attorney promised a fee reduction if he couldn't get a traffic citation reduced. The ethics committee suggests a re-examination of the rule against contingent fees in criminal cases.

"S.F. defense attorney [was] busted for interfering with the arrest of a client on an existing warrant who was just released from custody because of crime lab misconduct. The lawyer took the client's wallet as the client was being hooked up. The cops asked for it back, and he refused. They told him to hand it over, and he refused. He was then arrested. Two counterfeit $50s were allegedly found in the wallet.

An intimate relationship between defense counsel and a prosecutor was not enough to establish an actual conflict. Commonwealth v. Stote, SJC-09582 (March 5, 2010):

If the fact of the relationship in Croken, which was serious enough to lead to cohabitation (during the representation), was not sufficient standing alone to establish an actual conflict of interest, the relationship between Walsh and the ADA standing alone is similarly not sufficient. Walsh and the ADA's year-long relationship was surely more than a brief, casual affair, yet we cannot conclude that it was an intimate relationship similar to a marriage. Particularly as they did not live together, their relationship was not conducive to "inadvertent breaches of confidentiality," as cohabitation or marriage is. Id. at 274, quoting ABA Criminal Justice Section, Ethical Problems Facing the Criminal Defense Lawyer 248 (1995) (Ethical Problems) (noting potential for such breaches occasioned, e.g., by receiving telephone calls and messages at home, by working at home, or by explaining absence from home). Nor is there reason to believe that Walsh and the ADA developed a financial or personal interest in each other's careers, that is, that the ADA's professional advancement would have redounded to Walsh's benefit or vice versa. Cf. Croken, supra, quoting Ethical Problems, supra at 249 ("district attorney or public defender may have a special interest in the outcome of a case based on a concern for a promotion or political benefit for one's spouse"). Because the ADA was not handling the Commonwealth's case on appeal, there is no reason to believe that the Commonwealth's success in that appeal could have resulted in any professional benefit for her. In other words, Walsh's relationship with the ADA gave him no incentive to provide less than fully vigorous representation of his client.

In Croken, supra at 274-276, although we could not conclude on the papers that there was in fact an actual conflict, we did conclude that the defendant's motion and affidavits raised substantial questions that had not been adequately answered by the Commonwealth. Here, in contrast, the Commonwealth has provided evidence negating the existence of an actual conflict. Both Walsh and the ADA swear that no confidential information about Stote was disclosed, and there is nothing in the record to suggest otherwise. The ADA further swears that she had no involvement in the Commonwealth's side of Stote's appeal and knew nothing about the case until she read our opinion. This is corroborated by the trial prosecutor, who swears that she worked alone on the Commonwealth's brief and never discussed the case with the ADA. Walsh, the ADA, and the trial prosecutor, all officers of the court, bear a duty of candor toward the tribunal, see generally Mass. R. Prof. C. 3.3, 426 Mass. 1383 (1998), and the consequences for presenting false or misleading evidence to the court are potentially very serious. On this record, the judge properly concluded, without the need for an evidentiary hearing, that Walsh's representation of Stote was not impaired by his relationship with the ADA, that is, that there was no actual conflict of interest. See Mass. R.Crim. P. 30(c)(3), as appearing in 435 Mass. 1501 (2001) ("judge may rule ... on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits").

Hat tip to LegalProfessionBlog.com.

Liz Cheney identifies Gitmo lawyers with clients, and even Sen. Lindsey Graham (R-SC) and Kenneth Starr came to their defense:

"I've been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all," said Graham. "This system of justice that we're so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer."

But, will the wingnuts buy into this new McCarthyism?

I read about this trial a few days ago; now the result: Lawyer Acquitted of Charge He Raped Would-Be Client; Defense Argued Consent, from ABAJ.com. The lawyer is already doing five years for taking cocaine for fees.

On ABAJ.com: Suspect Reportedly Confesses to Lawyer, Helps Police Find Bodies.

Is this lawyer now a witness?

For you forensic science junkies: 50 Fascinating Documentaries for Forensics Science Junkies. [Hat tip to ForensicScienceTechnician.org.]

Just as importantly, jurors watch these shows. Case in point: I was crossing a narc about my client's fingerprints not being on the bag of dope, and the cop said that they couldn't raise fingerprints from that so they didn't try. I said, "Do you watch X show on TLC [or Discovery Channel, or truTV, take your pick]. Just a month ago they were showing how it's done."

If four jurors weren't nodding with me, I would have been afraid it went over their heads. It's not. Not guilty.

Remember: NACDL's 3d annual forensics seminar "Making Sense of Science III" is March 26-27 at Harrah's in Las Vegas.

$10,000 for a phone call a reasonable fee? Depends on the call.

Reminds me of a story I heard, maybe in law school, about Clark Clifford, Secretary of Defense under President Johnson, who as a lawyer, listened to a client's tale of woe and quoted and received a $25,000 fee. He made one telephone call, and the problem went away. The client, happy with the result, felt he was overcharged. Legend has it that Clifford said: "You wanted me to drag it out? Your problem is over, and the fee is earned."

The problem's over; the right guy fixed it. Fee earned.

Assaulting your lawyer in court is never a good idea because the mistrial motion is almost always denied. Depending on how bad the lawyer is hurt, however, the case goes on.