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Case Update - SCOTUS

President Trump's immigration ban is apparently on its way to the Supreme Court, and the hot topic du jour among the Talking Heads is something that wasn't covered in law school:  the effect Trump's tweets might have on the outcome.  The government had argued in its briefs that the policy was only intended to pause immigration while vetting procedures were tightened, only to see Trump reiterate in numerous tweets that it was indeed a ban.  The Solicitor General has urged the courts to ignore Trump's campaign-trail comments, because taking the oath of office "marks a profound transition from private life to the nation's highest office."  The Times' Linda Greenhouse counters that "it is "the very absence of such a 'profound transition' in President Trump's behavior that increasingly concerns his critics and even some close allies."  Feel the burn!

The Court did hand down one decision, in Honeycutt v. United States.  It's a complicated fact pattern on forfeiture, but essentially holds that co-defendants aren't subject to joint and several liability on forfeiture, especially where there's a disparity in the benefit each received from the crime. 

There are still several cases awaiting decision.  Perhaps the most interesting is Packingham v. North Carolina.  Packingham beat a traffic ticket, and celebrated with a Facebook post declaring, "God is good!"  The problem?  Packingham was a registered sex offender, and North Carolina law makes it a felony for an offender to access a website that "is known to allow minors to have accounts."  Oral argument seemed to favor Packingham, and if he wins, he'll be able to read about it on Facebook and Twitter.

Another case still to be decided is Lee v. U.S.  He was given spectacularly bad advice by his lawyer, who told him that a plea to possession of drugs wouldn't result in his deportation, when deportation in fact was mandatory.  The courts below held that Lee wasn't prejudiced, the second prong of the Strickland test, because the evidence against him was overwhelming.

That's where things get tricky.  Prejudice here is usually determined by gauging whether a reasonable defendant would have gone to trial if he'd been given accurate advice on deportation.  That's a problem in itself.  There are people who go through life making one bad decision after another.  Criminals are vastly overrepresented in this subset of the population.  The "reasonable defendant" is basically an oxymoron. 

Even assuming we find one, there are a a lot of things go into the calculus of a plea bargain.  It usually boils down to a single question:  what gets the defendant less time?

But there are all kinds of ways that can go.  It's hard to claim that evidence is "overwhelming" when the case is coming up on a plea; the government's case certainly wasn't subject to "the crucible of adversarial testing."  For some defendants a reduction of seven years imprisonment to three years is a major accomplishment.  For others, three is as good as seven:  the goal is to avoid imprisonment at all costs.

And then you throw deportation on top of that.  The Court in Padilla v. Kentucky recognized that deportation might be a greater punishment than imprisonment.  Lee is arguing that even if he had a minimal chance of success at trial, avoiding deportation was worth the risk of a longer prison sentence.

I'm not sure how Lewis is going to come out, but one thing's for certain:  Lewis is going to make a lot of law on plea-bargaining.   

Turner v. U.S. and Overton v. U.S. might make some law on Brady violations, but probably not:  the case is too fact-intensive to have much of a broad reach.  How fact-intensive?  At one point, the Assistant Solicitor General described the geography of the D.C. neighborhood where the murder took pkace and provided the justices with the "street names" of the defendants.

An indigent defendant is entitled to expert assistance at state's expense.  What kind of expert assistance will be decided in McWilliams v. Dunn.  Dunn was sentenced to death after the judge rejected his pleas to consult with an independent psychiatrist. 

The case would be relatively straightforward, except that it comes up on habeas.  That means the question isn't whether Dunn should have gotten an independent expert at state expense, but whether the state courts' decision that he wasn't entitled to one was "directly contrary" to the Supreme Court's earlier decision in Ake v. Oklahoma. 

This is why I think sometimes we lawyers and judges get so wrapped up in the law that it becomes a game to us.  We move concepts - motive, elements, burden of proof, evidence rules - around like pieces on a chessboard, with The Law becoming an end in itself.  And so we lose sight of Justice.  There is no way the state should be allowed to kill a person without giving him the means to defend himself.  That should be the end of the inquiry.

As if to prove my point, we come to the issue in another habeas case, Davila v. Davis, which is:

Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

'Nuff said.

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