New Right-to-Counsel Rulings Address Bail and Waiver

State courts in Maryland and Indiana have recently broken new ground in the right-to-counsel area.  First, a trial judge in Baltimore ruled inRichmond v. District Court that indigent defendants have a Sixth Amendment right to be represented by counsel at bail hearings.  The decision is described in more detail at The Blog of Legal Times.  Additional coverage appears in The Daily Record.

Second, the Indiana Supreme Court ruled in Hopper v. State that defendants who wish to waive their right to counsel and plead guilty must be advised of the benefits of having a lawyer during plea negotiations.  The United States Supreme Court had previously rejected such “formulaic” requirements for a valid waiver of the right to counsel in Iowa v. Tovar, 541 U.S. 77 (2004).  However, unlikeTovar, the new case was decided not on Sixth Amendment grounds but on the basis of the Indiana Supreme Court’s general supervisory authority over lower state courts.

If it is affirmed on appeal and replicated in other jurisdictions, the Baltimore ruling is likely the more significant of the two.  

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Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel

Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel.  Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction.  Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.

Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice.  In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.

In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.  

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Burglary, Violence, and the Armed Career Criminal Act

The U.S. Bureau of Justice Statistics has issued a new report on victimization during household burglary, which might have important implications for the application of the Armed Career Criminal Act.  First, here are the report’s highlights on the burglary-violence connection:

  • A household member is present in about one-quarter of residential burlgaries.
  • A household member is violently vicitmized in about seven percent of residential burglaries (or about one-quarter of the burglaries in which a household member is present).
  • In residential burglaries, simple asault is the most common violent crime (3.7 percent of all burlgaries), while more serious violent crimes like rape (0.6 percent) and aggravated assault (1.3 percent) are far less frequent.
  • In a majority of even the “violent” burglaries, the victim indicates there is no injury; a “serious injury” is sustained in only 8.5 percent of the violent burglaries.
  • In the violent burglaries, fewer than forty percent of the offenders are armed.

Now, for the ACCA link. 

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