Public Defense

Choice quotes from Padilla v. Kentucky

By Gideon

Here are a few things that I noted in Padilla v. Kentucky that I left out of my last post, which I wanted to focus mainly on the immigration issue itself. But these are worth mentioning.

First, for the habeas practitioner, Justice Stevens delivers a powerful statement:

In [the Supreme Court of Kentucky's] view, ?collateral consequences are outside the scope of representation required by the Sixth Amendment,? and, therefore, the ?failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.? 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ?reasonable professional assistance? required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

JACKPOT! Those who practice in the field know that courts are quick to dismiss viable claims of Constitutional defect on the grounds that the basis for that alleged defect is only a “collateral consequence” of the plea. Go forth, defense attorneys, and beat them over the heads with this quote.

In what is more evidence of the complete battiness of Scalia and Thomas, Scalia writes:

We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344?345 (1963), and that the right to ?the assistance of counsel? includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

I thought it needed pointing out that Scalia would only “assume the validity” of Gideon and Strickland. Nino, you crazy old man, you…

Full post as published by A Public Defender on April 01, 2010 (boomark / email).