New Marquette Lawyer Spotlights the Role of Law Clerks — and Much More

Marquette LawyerJudicial assistants or junior judges? That was the key question at a recent gathering at Marquette Law School of experts on the role of law clerks who work for judges in many courts, including U.S. Supreme Court justices. The Fall 2015 Marquette Lawyer magazine highlights excerpts from the presentations at that conference in a cover story that sheds light on the important but rarely spotlighted role of clerks (the full symposium is available in the Law Review).

Shedding light is also a prime goal of several other pieces in the new magazine.

Charles Franklin, professor of law and public policy and director of the Marquette Law School Poll, examines the muted level of support that Gov. Scott Walker received from Wisconsin voters during his unsuccessful bid for the Republican presidential nomination. Weak support from independent voters receives particular attention from Franklin in his piece, “Downtown on the Home Front.”

Joseph A. Ranney, Marquette Law School’s Adrian P. Schoone Visiting Fellow, is working on a book about the role that states have played in the evolution of American law. In several pieces posted on the Marquette Law School Faculty Blog and printed in the new magazine, Ranney sheds light on the Badger state’s legal past, describing “Wisconsin’s Legal Giants.”

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In Memory of Justice Patrick Crooks

Justice CrooksJustice N. Patrick Crooks was the epitome of a lawyer and judge who lived to serve. In his fifty-two-year legal career, he served as a captain in the office of the Judge Advocate General at the Pentagon and then as a lawyer in private practice in Green Bay, before becoming a Brown County circuit court judge and then justice of the Wisconsin Supreme Court. In 1994 he was named Wisconsin Trial Judge of the Year by the Wisconsin Chapter of the American Board of Trial Advocates. Justice Crooks served on the trial bench for nineteen years and on the Wisconsin Supreme Court from 1996 to his passing, in chambers, last week on September 21.

I was honored to work for Justice Crooks as his clerk during the Wisconsin Supreme Court’s 1999-2000 term.

Justice Crooks approached each case with fresh eyes and an impartial mind. He reasoned through cases carefully and understood that he had a solemn role in deciding a case. Justice Crooks believed in the law and the justice system. Every case was fully analyzed and researched before oral argument. Opinions were to be written to guide lawyers, judges, and Wisconsin citizens. Justice Crooks was proud of his work on the trial bench and felt that his knowledge of the trial courtroom was important to his understanding of cases on appeal.

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Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence.

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