by RICH CASSIDY on JUNE 21, 2011
The Honorable Jonathan Lippman, Chief Judge of the New York Court of Appeals, (New York state’s highest Court) addressed an audience of some 70 invited criminal defense lawyers and legal scholars at the Cardozo Law School in New York on Tuesday. The conference, entitled “Padilla and the Future of the Defense Function,” was a day and a half joint exploration of the impact of Padilla v. Kentucky, 509 U.S. ___, 130 S. Ct. 1473 (2010) on the defense of criminal cases. It was sponsored by the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association (NLADA), and co-sponsored by the American Bar Association Criminal Justice Section Task Force on Comprehensive Representation, and supported with a grant from the Ford Foundation.
Chief Judge Lippman noted that the overwhelming number of criminal cases are defended by public defenders or counsel assigned at public expense. He emphasized the importance of strong and competent criminal defense for those who cannot afford counsel. He suggested that the legitimacy of the courts depends upon meeting this ideal of equal justice. The Chief Judge went so far as to suggest that if the system cannot provide access to the courts “we might as well close the courthouses.”
The Chief Judge talked about the importance of active involvement by judicial leaders in making sure that our courts are not just processing cases, but doing justice, by assuring that criminal defendants are well represented.
Chief Judge Lippman acknowledged that Padilla — which held that competent representation requires that a defendant be advised when a plea of guilty would result in deportation — increases the burden on criminal defense lawyers. He went on to tell the audience that, even in the current troubled fiscal environment, the New York Courts have obtained increased funding for indigent criminal defense to permit case limits of 400 misdemeanor/150 felony cases per year, to be phased in over a few years.
The Chief Judge’s remarks keynoted the conference’s discussion about how defense lawyers will adjust to, and fulfill its promise. Many at the meeting described Padilla as the most significant right to counsel case in the nearly 50 years since the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335 (1963).
Conference participants came away understanding that the logic of Padilla extends far beyond immigration to other severe and certain consequences imposed based on conviction. University of Arizona Law Professor Gabriel “Jack” Chin argued that the modern proliferation of collateral consequences has gone so far as to disinter the common law idea of civil death. University of Pennsylvania Law School Professor Stephanos Bibas argued that the Padilla should mean that whether competence requires that a defendant be advised about a particular consequence of conviction is not about whether a consequence is labeled civil or collateral, but whether it is severe and certain enough to be a significant factor in criminal defendants bargaining calculus.
My own comments, in the discussion on “Beyond Immigration: Litigating Expansions of Padilla,” argued that particularly as to convictions for relatively minor crimes, such as misdemeanors, the collateral consequences of conviction often prove far more significant than direct penalties imposed by the court. I noted that some prosecutors seem unwilling to bargain on collateral consequences, but reminded participants that our criminal justice system lives on plea bargains, and that prosecutors will be forced to bargain on this front if the alternative is a significantly expanded number of trials. I suggested that prosecutors will be more willing to support appropriate reform of collateral consequences, such as the Uniform Collateral Consequences of Conviction Act, if they are pressed on these issues during plea bargaining.
In a presentation on “What is Good Lawyering?” Innocence Project Director Barry Scheck argued for the need for legal services programs to maintain time and task records in order to create hard data with which to support arguments for adequate resources for access to justice. Scheck argued that law school clinical programs should train students and the legal services programs should use practice management systems and mobile digital technology to facilitate data collection.
Some participants were resistant, arguing that time-keeping is culturally foreign to legal services lawyers. Only one major defender program in the country is reportedly requiring lawyer time records. They suggest that defenders are too busy putting out fires to keep time records. Others feared that time and task records would be used as a sword against legal services programs, rather than as a shield to protect them.
Jo Ann Wallace, the President and CEO of the National Legal Aid & Defender Association, suggested that legal services programs are losing the battle in terms of developing evidence-based support for demonstrating the need for such programs. She said there is a critical need to create and collect on the ground data and information to demonstrate what amounts effective representation.
The conference was a bounty of creative thinking and talking about post-Padilla criminal defense that covered a far broader range of subjects than discussed here including legal education and standards and ethics for defense lawyers. The Conference program is itself a resource list of ideas and expertise.
In the end, perhaps Jo Ann Wallace, in the final panel discussion on “Redefining Defense Practice: Charting a Plan of Action” tied the various themes discussed together best when she suggested that underlying meaning of Padilla is that criminal defense is about holistic representation, requiring that defense lawyers deal with the real problems of individual clients, and not just processing cases on an assembly line.
Kudos are due to the Conference’s organizers and the Ford Foundation for a great program.
Rich