Criminal Law & Process – Page 67 – Marquette University Law School Faculty Blog

Why Were the Lawyers Wearing Blinders?

Post author:Michael Hupy
Post published:September 4, 2012
Post category:Criminal Law & Process Legal Ethics Public

In the September 2009 issue of the ABA Journal, the author of the article “Town Without Pity,” Wendy Davis, asked, “Where Were the Lawyers?” Judge Mark Ciavarella had been giving jail sentences to juveniles that were shocking to the conscience for minor offenses. All the lawyers in the court system, including the district attorney, knew what was happening, but very few challenged Ciavarella. Barry Dyller, a local Wilkes-Barre attorney quoted in the article, stated that “only the absolute strongest lawyers, who didn’t mind facing his wrath” ever argued with the judge’s decisions. The other defense attorneys, the article notes, appeared resigned to these rulings. Additionally, if there were any lawyers who suspected the judge was taking bribes, there is no record of any stepping forward.

In August 2011, Ciavarella was sentenced to 28 years in federal prison on racketeering charges, among others, in a case that was called “Kids For Cash.” Ciavarella, along with another Luzerne County judge, accepted bribes totaling over $2.6 million from the builder of juvenile detention centers in exchange for sending thousands of children to newly built facilities in order to ensure the facilities would be adequately utilized.

Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

Post author:Michael M. O'Hear
Post published:August 20, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.

California Answers Some of the Graham/Miller Questions, Sort Of

Post author:Michael M. O'Hear
Post published:August 17, 2012
Post category:Criminal Law & Process Public U.S. Supreme Court

As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles. In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses. Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide. These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.

Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero. I think Caballero got things right, as far as it went, but the case left much open for future litigation.