Best of the Blogs: SVU, Carrots, and Yale Law

When I write the “Best of the Blogs” feature, I usually try to identify some common theme that ties together some of my favorite posts of the past week.  It doesn’t seem to be working this week.  I’ll leave it as a challenge to enterprising readers to see if they can connect the following dots in some way that is eluding me.

First, I stumbled across this fun blog called Prime-Time Crime Review.  The author is a real-life sex-crimes prosecutor named Allison Leotta.  She posts after each new episode of Law & Order: SVU with an evaluation of how realistic the episode was.  I could pitch this blog as a crim-pro supplement for law students, but really it’s much more entertaining than that would imply.  Sample comments on the October 14 episode:

What they got wrong: First, the dress the new ADA was wearing. Skin-tight red leather with ruffles? I don’t think so. But she did look amazing. But then she went over the top with her lawyering tactics. When the nutty professor came in to plea bargain with his high-paid lawyer, they argued and the prof asked, “Can I fire him?” The ADA answered, “Sure!” and got the prof a new (young, inexperienced) lawyer. That would never happen in real life. The criminal justice system is adversarial, which means the prosecutor cannot advise the defendant, hook him up with a defense attorney, or even talk to him alone once he has a lawyer. If a defendant asks a prosecutor for a new lawyer, she can set up a hearing where the judge can listen to his concerns and appoint a new lawyer for him. This was as realistic as Jennifer Aniston selecting the dress for Anglina Jolie to wear to the Oscars.

The blog reminds me of one of my favorite lines from my all-time favorite TV lawyer — while watching L.A. Law, Lionel Hutz sarcastically observed, “Oh, sure, like lawyers work in big skyscrapers and have secretaries. Look at him, he’s wearing a belt!”  

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Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct

In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction.  Ineffective assistance law should reflect this reality.  Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction.  Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer. 

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Seventh Circuit Reverses Position on Fast-Track Sentencing

Last week, in United States v. Reyes-Hernandez (No. 09-1249), the Seventh Circuit overruled United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), and held that sentencing judges may consider “the disparate treatment of immigration defendants that is created by fast-track programs in determining whether a Guidelines sentence is greater than necessary under the § 3553(a) factors” (30).  This is an important decision that deepens a circuit split on the sentencing of illegal reentrants into this country. 

At least sixteen districts, including the Mexican border districts, have developed fast-track programs that offer extraordinary sentencing benefits for illegal reentrants who plead guilty in an especially expedited fashion.  (For background, see my article at 27 Hamline L. Rev. 357.)  However, many other districts, including all of the Seventh Circuit districts, do not offer defendants the fast-track option, which creates wide sentencing disparities in illegal reentry cases.  When the federal sentencing guidelines were converted from mandatory to advisory in 2005, many defendants in non-fast-track districts argued that judges ought to give them the fast-track benefit in order to mitigate the disparities.  Appellate courts, however, uniformly rejected these arguments prior to 2007, when the Supreme Court reemphasized the discretionary nature of federal sentencing in Kimbrough v. United States, 552 U.S. 85.  Post-Kimbrough, three circuits, now joined by the Seventh, have ruled that sentencing judges may consider the fast-track disparities.   

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