This week, in somewhat belated celebration of the commencement of another term of the U.S. Supreme Court, we will be doing another of our special series: Marquette Law faculty members will be posting about the most important Supreme Court case in a subject that they teach. First up later today will be Paul Secunda, who will be writing on the most important Supreme Court case in the area of public employment law.
Yesterday the Supreme Court granted certiorari in Ashcroft v. Al-Kidd, the petition in which the United States Department of Justice seeks to establish, on behalf of former Attorney General John Ashcroft, that government officials have immunity from liability for claims that they used the material witness statute to detain a U.S. citizen, not, in reality, to ensure his availability as a witness in another case, but instead as a pretext for what was actually a preventative detention.
As the New York Times explains, the former detainee in question, Abdullah Al-Kidd, is a U.S. citizen born in Kansas as Lavoni A. Kidd; he was (I have read) a football star for the University of Idaho in the mid-90s. In rejecting Ashcroft’s argument for immunity, the Ninth Circuit (in a split three-judge panel decision) first held that, at best, qualified immunity might apply, explaining its reasoning this way:
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.