As we approach the two-year anniversary of the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. ____ (2010), the ramifications of Padilla remain unclear. Just yesterday, the New Jersey Supreme Court issued an 18-page decision ruling Padilla was not retroactive. Most observers agree that both Padilla's retroactive application and its effect on other collateral consequences cases will remain hot-button issues for the foreseeable future. But other Padilla issues are also being litigated. Earlier this month two Ohio decisions addressed Padilla. The first haled from the Eighth Appellate District of Ohio, while the other comes from the Sixth Circuit. Both merit a closer look, and the Eighth Appellate District's decision is particularly informative when compared with a Tenth Appellate District of Ohio opinion issued in November, 2011. These cases do not address novel, undetermined issues of law, but rather Padilla's more practical considerations. They highlight how criminal defense attorneys can comply with Padilla, the difficulties in compliance, and the particulars surrounding plea withdrawals.
A brief discussion of Padilla is warranted to understand later case law. Jose Padilla was a Honduran native and U.S. lawful permanent resident (LPR) arrested on drug-distribution charges in Kentucky. Padilla pleaded guilty in part because his attorney advised him that he need not worry about his immigration status because he had been in the country for so long (Padilla had been a LPR for over 40 years). Like almost all drug charges excepting very minor marijuana offenses, the drug-distribution charges against Padilla were deportable offenses under federal statute. As the Supreme Court explained, deportation or removal on such charges is virtually mandatory. The Kentucky Supreme Court denied Padilla's request for postconviction relief without an evidentiary hearing, ruling that the Sixth Amendment's guarantee of effective assistance of counsel did not include advice on deportation, as this was a collateral consequence of the plea. The Supreme Court of the United States reversed and remanded for further proceedings.
Justice Stevens delivered the Court's opinion, and was joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Justice Alito concurred in judgment, and was joined by Chief Justice Roberts. Justice Scalia dissented, and was joined by Justice Thomas. The majority rejected the Kentucky high court's collateral consequences reasoning, though it recognized that this was a widespread view among many appellate courts.
Wednesday, February 29, 2012
Sunday, February 5, 2012
#socialmedia&privacy: On brooklyn gangs, british tourists, and the law #bigbro smh @everyone
When I first signed up for Facebook a close friend was surprised that I had opted to join "the world with no privacy." Undeterred, I ventured on, slowly picking up the Facebook lexicon, though trying to avoid it for fear of it slipping into a motion someday. It was, and remains, remarkably useful and entertaining. But it is also awkward and disturbing in the early going. You are actively invited into people's intimate moments and thoughts, and more likely than not, these are people you may not have seen in years. In part, this was the privacy-lacking world Justice Sotomayor referenced in her U.S. v. Jones concurring opinion, covered here on this blog. As anyone who tried to open a Google-related site this past week only to be warned of a changed privacy policy knows, we are sharing just about everything we do online with someone. This type of inadvertent disclosure, however, is rather different than the intentional disclosures made on sites such as Twitter and Facebook. Yet those intentional disclosures are often made at the spur of the moment, often with a feeling that the universe with whom you're sharing this information is closed and controlled. The truth is far from that, and once made, tweets and posts can have a life of their own. In the past few weeks, two warring Brooklyn gangs and two British tourists found that out the hard way.
In January the Brooklyn District Attorney indicted 43 members of two warring Brownsville gangs, the Wave Gang and Hood Starz. The gangs were responsible for six homicides and 32 shootings in the past 18 months, leaving a total of 38 wounded, including a 9-year old. All of the indicted gang members were teenagers or in their early 20s, which is not surprising given the manner in which law enforcement was able to hone in on their illegal activities.
In their fervor to document and share their exploits both gangs had taken to Twitter, Facebook, and Youtube, leaving behind a trail of electronic evidence. Indeed, the police officers monitoring certain sites grew adept at deciphering the gangs' codes.
In January the Brooklyn District Attorney indicted 43 members of two warring Brownsville gangs, the Wave Gang and Hood Starz. The gangs were responsible for six homicides and 32 shootings in the past 18 months, leaving a total of 38 wounded, including a 9-year old. All of the indicted gang members were teenagers or in their early 20s, which is not surprising given the manner in which law enforcement was able to hone in on their illegal activities.
In their fervor to document and share their exploits both gangs had taken to Twitter, Facebook, and Youtube, leaving behind a trail of electronic evidence. Indeed, the police officers monitoring certain sites grew adept at deciphering the gangs' codes.
Thursday, February 2, 2012
GPS Surveillance and Jones : On Tiny Constables, Gigantic Coaches, and 18th Century Trespass Law. Seriously.
Though the Supreme Court's unanimous decision in United States v. Jones, 565 U.S. ____ (2012) has been extensively covered since it came down on January 23rd, it's worth taking another look at the decision and its practical implications.
The facts of Jones are relatively simple. In 2004 Antoine Jones was the owner of a D.C. nightclub suspected of trafficking cocaine. The FBI and Metro Police joined forces to investigate Jones, using a wiretap, a pen register, and both camera and visual surveillance of the nightclub. On the basis of their information, the Government requested and received a warrant allowing them to place a GPS device on Jones's SUV. They were to attach the device within 10 days, and in D.C. Instead, the GPS was placed on the 11th day, in Maryland. The information from the GPS connected Jones to a stash house where cash and cocaine were found. Eventually, Jones was indicted, tried, and found guilty of conspiracy to distribute. He was sentenced to life. The D.C. Circuit reversed the conviction, and the Supreme Court granted certiorari.
The majority opinion is delivered by Justice Scalia, joined by Roberts, Kennedy, Thomas, and Sotomayor. Meanwhile, Alito's concurrence is joined by three justices - Ginsburg, Breyer, and Kagan. But in Sotomayor issuing her concurring opinion, Jones feels almost as if there were actually two majority opinions.
The facts of Jones are relatively simple. In 2004 Antoine Jones was the owner of a D.C. nightclub suspected of trafficking cocaine. The FBI and Metro Police joined forces to investigate Jones, using a wiretap, a pen register, and both camera and visual surveillance of the nightclub. On the basis of their information, the Government requested and received a warrant allowing them to place a GPS device on Jones's SUV. They were to attach the device within 10 days, and in D.C. Instead, the GPS was placed on the 11th day, in Maryland. The information from the GPS connected Jones to a stash house where cash and cocaine were found. Eventually, Jones was indicted, tried, and found guilty of conspiracy to distribute. He was sentenced to life. The D.C. Circuit reversed the conviction, and the Supreme Court granted certiorari.
The majority opinion is delivered by Justice Scalia, joined by Roberts, Kennedy, Thomas, and Sotomayor. Meanwhile, Alito's concurrence is joined by three justices - Ginsburg, Breyer, and Kagan. But in Sotomayor issuing her concurring opinion, Jones feels almost as if there were actually two majority opinions.
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