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Thursday Roundup

Today's Helpful Hint.  If you're a sex offender who's reading this, keep in mind that if you become destitute, you're legally required to tell the Sheriff that your address has been changed to the homeless shelter, and they'll come out and check to make sure.

Okay, that's not exactly the blog's target demographic, but what piqued my interest was this post in Professor Berman's Sentencing Law & Policy.  It quotes extensively from another post discussing what's happening with residency bans for sex offenders in California, especially after a court ruling striking down a local ban in Englewood.  The law prohibited any sex registrant from living within 2,000 feet of a school, park, or playground; the effect was to make 99% of homes and rentals off limits for sex offenders.

But what caught my attention was this paragraph:

And this year, California's Supreme Court could make an even bigger ruling -- whether to toss the state's 2,000-foot law itself.  A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed.  The judge cited an increase in homelessness among registrants as a key reason.  Statewide, the number of homeless registrants has doubled since the law passed in 2006.

In the past few years, I'll bet I've handled half a dozen cases of sex offenders in homeless shelters failing in some aspect of their registration requirements, mainly because it's a lot harder to comply with them.  You might find a friend to stay with for a week or two, just to see how things work out, but if you don't notify the sheriff of that "change of address," you've just committed a third degree felony.

In other words, we impose residency restrictions that make them more likely to wind up homeless, which makes them more likely to violate the restrictions.  There's something wrong with that.

When does a lawyer have to start being competent?  Interesting decision from the 6th Circuit a couple weeks ago, in Kennedy v. US.  One of the strategies used much more in Federal court than state court is proceeding by way of information, instead of indictment:  your client gets a "target letter," and you start negotiating a deal, which ultimately sees your client pleading guilty to an information charging a lesser offense. 

Kennedy got the letter and got an attorney, who told him that he could reduce his sentencing exposure by pleading to an information.  Kennedy then got another attorney, who told him he could beat the case, so Kennedy told the government to go pound salt.  And pound it the government did at Kennedy's trial, to the tune of a 15-year sentence.  By that time, Kennedy was on his fourth lawyer, which tells you all you really need to know.

Kennedy appealed, claiming that the second lawyer provided ineffective assistance by telling him not to try to negotiate a deal at that stage.  "At that stage" turns out to be the crucial language. 

A few years back, the Supreme Court in Lafler v. Cooper reversed a defendant's conviction because his attorney gave him advised him to go to trial, which advice was based on a gross misunderstanding of the law.  That opens up a whole can of worms.  What if the attorney's advice to go to trial is based on an insufficient knowledge of the facts, through lack of investigation?  What if it's based on a gross miscalculation of the strength of the government's case?

The court in Kennedy decides to close that jar, to an extent anyway, holding that the right to effective assistance of counsel only applies once "adversary judicial pleadings" are initiated.  That wasn't triggered until Kennedy was indicted.

I'm not criticizing the decision; the abstract says the court is relying on a US Supreme Court decision on that point, and I've got other things to do besides look it up.  And perhaps it's appropriate from a policy point of view. 

But from a logical standpoint, it doesn't make sense.  In the vast majority of cases, you're going to be retained or assigned after the defendant is charged.  But if you're consulted before that, what you do is critical.  Another key strategy in criminal defense is the proffer, which often occurs before formal charges have been lodged.  I've gotten cases where another lawyer's decision to make a proffer was disastrous; I've seen it used to reduce a defendant's sentence by more than half. 

Lafler and Missouri v. Frye hold that the right to effective assistance counsel applies to plea bargaining.  I don't see how you make a distinction based on the stage of the criminal proceedings; plea bargaining is a critical stage of the criminal process, regardless of whether it takes place before or after the defendant is formally charged.


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