Kentucky Supremes Reject Challenge to Guilty Plea Based on Bad Parole Advice

Thursday involved another major re-visit of the scope of the Padilla  decision, by the Kentucky Supreme Court. But was this really a Padilla issue at all? We’re talking about whether a criminal defendant can set aside a conviction based on bad lawyer advice regarding certain “collateral” issues.

This time, the court issued three opinions, involving allegedly bad advice regarding parole eligibility and sex offender status. On parole eligibility, one David Stiger says that he was misinformed by trial counsel about his parole eligibility nine years ago when he pled guilty to Robbery, and should have his conviction set aside. Parole eligibility, argues Mr. Stiger, is just the same as immigration consequences were for Mr. Padilla, so if I prove my lawyer provided ineffective assistance and misadvised me, I should at least get what Mr. Padilla got (a new trial).  It is not the same, says the Supreme Court, and in any event Mr. Stiger can’t prove that he would have done better at trial. Conviction affirmed. Same outcome for the Defendants Pridham and Cox on the issue of sex offender misadvice.

What is odd about these decisions is that there was not a single cite I can find of the U.S. Supreme Court’s most recent two decisions granting relief from guilty pleas, which were just decided in March (Cooper and Frye, here). Most agree these two decisions changed existing law on this topic—enough so that I taught a class on them in May, so that means something, doesn’t it? (See also, the cover of this month’s ABA magazine—I love it when I scoop the ABA). Not clear the outcome of these cases would be different, but odd nonetheless.

U.S. Supreme Court: let’s define when your state supreme court can (and can not) grant you more rights than we do.

This term, the U.S. Supreme Court will hear oral arguments on October 29, 2012 (my wedding anniversary, I must add, so I won’t be attending) regarding a search and seizure ruling by the Florida Supreme Court, in which the state supreme court held that an alert by a drug-sniffing dog was, by itself, insufficient probable cause to search a car. An astute student of the Supreme Court or civil liberties will predict that the Court will have a problem with that conclusion.

Some of our readers may not be aware, however, that a state supreme court can, indeed, recognize more constitutional rights than the U.S. Supreme Court does. More rights, and stronger rights in the same area. For example, the U.S. Supreme Court has never held that a motorist is entitled to a sort of “Miranda” warning by a police officer prior to requesting consent to search the motorist’s car (“Sir, do you mind if I look in the car—but before I do, I must inform you that you have the right to refuse.’ – something like that). A few state supreme courts, however, have experimented with recognizing a right like that. For a brief, and perhaps shining, moment in the 1990s, our sister state of Ohio recognized this “car search Miranda warning.”

The problem arises when the state supreme court announces the basis for its decision to recognize “more” rights. If that court states that its decision is based on the federal constitution—and not state law or the state constitution—then the U.S. Supreme Court is free to accept that case for review and reverse it. In effect, some would say, taking the right away. That same U.S. Supreme Court, however, has zero authority to “take away” a right granted under a state constitution. It has no jurisdiction  over state law per se, only “federal questions.”

So, you ask, why would a state supreme court not just overtly say that its decision was based on state law? Then, the U.S. Supreme Court would have no jurisdiction over the issue. There, my friends, is the realm of judicial politics, in my humble opinion. There are a lot of punts in that game. Indeed, these high oracles of law in some states manage to write opinions the basis for which is virtually impossible to decipher. Is it state law? Federal law? The Vienna Convention? Who knows?

Todd Lewis & Khalid Kahloon Present to Children’s Advocacy Physicians

Attorneys Todd Lewis and Khalid Kahloon, of Louisville law firm Kahloon, Pasic & Lewis, will be presenting on Friday, October 11, 2012, to physicians with Kentucky’s child advocacy centers, on behalf of the Kentucky Association of Children’s Advocacy Centers. These physicians conduct the state’s examinations of victims of alleged child sex abuse. Lewis and Kahloon, whose practice partly involves the representation of physicians, hope to offer their nearly 30 years of trial experience to instruct these important physicians on the topic of courtroom testimony and cross examination.

Kentucky Court of Appeals: Following U.S. Supreme Court, Padilla Gets New Trial in Hardin

In a “where are they now”? moment, the Kentucky Court of Appeals issued a  sort of follow-up opinion last Friday regarding one Jose Padilla, a criminl defendant indicted in Hardin County, Kentucky, who has become somewhat famous locally and nationally in the last couple years as the subject of the U.S. Supreme Court’s Opinion in Padilla v. Kentucky (2010). Folks practicing immigration law and criminal law definitely need no reminder of the impact of Padilla: the ruling was that a criminal defendant is entitled to be warned by his attorney of the possible immigration consequences of a guilty plea. If he can show that he was not so warned, and it was what the law regards as “prejudicial,” he may be abe to set aside his conviction.

So, following the U.S. Supreme Court’s decision, Mr. Padilla’s case took a trip back to the Kentucky Supreme Court, then back to Hardin Circuit Court, who ruled  that even if Mr. Padilla could show that his trial attorney did not warn him of immigration consequences, he suffered no prejudice, and therefore would not get a chance at a new trial. That ruling prompted an appeal to the Kentucky Court of Appeals, who ruled that Padilla did, indeed, suffer prejudice and vacated his conviction. Now, this only means that Padilla can now stand trial– and face a possible ten-year sentence rather than the five years in his original plea (or, indeed, receive an acquittal). Incidentally, the Court also pointed out that Mr. Padilla is a forty-year legal permanent resident of the U.S. who served in the U.S. military in the VietNam conflict– but could still face deportation under current rules.

This is curious from a human perspective, because it has courts involved in trying to understand the weight an immigrant may place upon avoiding deportation. Indeed, even some very very small criminal sentences may subject a person to possible deportation, and even when they have resided here almost their entire life. It is a possible consequence whose weight is probably unparalleled among possible secondary consequences of a conviction. As the Court quoted Padilla in its Opinion, it was like “putting a gun to his head.”

By the way: our blogs are not intended as legal advice for any individual case– just general information.

Louisville Attorney Discusses U.S. Supreme Court’s Next Immigration Issue

Many know that, two years ago, the U.S. Supreme Court granted possible relief from criminal guilty pleas when the defense attorney failed to advise of immigration consequences, like possible deportation. That case, Padilla, was a local one. Next issue for the high court: how does this apply old convictions that are now being used for deportation?  Attorney Dan Alvarez discussed with the Courier-Journal.

Kahloon, Pasic & Lewis Congratulates Intern Tyler Hitch (“Ty”) on passage of the Kentucky Bar Exam!

Kahloon, Pasic & Lewis today congratulates  their intern Tyler Stuart Hitch, who has learned today that he  has passed the Kentucky Bar Exam and is eligible to be sworn to the Bar of the Commonwealth.

Ty joins us from the West Coast, where he graduated from the University of California-Davis School of Law.  He and his lovely wife, Samina are “coming home” to the Louisville area, where Samina spent her childhood, and will live in Floyds Knobs, Indiana.  Samina will sit for the Indiana Bar in February, and the two will certainly offer a warm and sincere contribution to our community of attorneys.

Ty attended New Trier High School in the Chicago-area, and was Phi Beta Kappa at the University of North Carolina-Chapel Hill, where he competed as a Varsity Cross Country and Track and Field athlete.  His legal experience has included International Corporate work at Baker & McKenzie, Environmental Law and Food Policy at Commonweal, and teaching “Street Law” Criminal Procedure to the public.  His focus is Immigration Law, and he has assisted attorneys Khalid Kahloon and Todd Lewis considerably in research and trial preparation.  Please join us in welcoming Ty Hitch to our community!

Kentucky Court of Appeals Allows Vehicle Drug Search Based on Bad Lane Change, Sidesteps an Issue with Good Faith Searches

In one of a few criminal cases designated to be published last week, the Kentucky Court of Appeals reversed Jefferson Circuit Court’s conclusion that a search of a vehicle for drugs was improper, because the police officer had not really witnessed a traffic offense of any kind when he stopped the car.
In Commonwealth v. Fowler, a police officer testified that he had stopped a car solely because the diver did not signal prior to a lane change. Ah, but, held the trial judge, the traffic regulations do not actually require a signal for lane changes, but only for turns. Therefore, the traffic stop was invalid. Not so fast, says the Court of Appeals: switching gears entirely, Court held that, in fact, the somewhat ambiguous regulations do require a signal change, so the officer’s stop and resulting search were valid.
Who cares, you ask? Well, an interesting issue posed by this case was whether an officer can have a “good faith,” but ultimately incorrect, interpretation of the law. Good faith is a doctrine normally used when search warrants are technically invalid, but the police acted “in good faith.” Whether one can have a “good faith” but incorrect view of the law itself is a little more sticky for obvious reasons. The Court made no decision on this issue as you can see, because it decided that the officer was actually right about the law all along. Is your head spinning yet? No word on whether the defense will seek further review by the Kentucky Supreme Court.
On the appeal for the defense was Hon. Grover Cox; and Hon. Sam Floyd for the Commonwealth, Commonwealth’s Attorney’s Office. Let me take this editorial opportunity to say that one of finest and little-appreciated services of the administration of Commonwealth’s Attorney Dave Stengel was a full-service criminal appeals division in the local prosecutor’ office. These very experienced and intelligent Louisville prosecutors have done a great job over the years, and really help fill a gap that the Office of Attorney General will find hard to cover with its many cutbacks dealt to the current administration.

Kentucky Supreme Court: Facebook and Criminal Juries are Bad Mix

In another case of first impression– and broad interest– the Kentucky Supreme Court today reversed a conviction because of jurors’ potentially accessing Facebook pages of the victim’s mother. The opinion in Ross Sluss v. Commonwealth(from Martin Circuit Court) is here /Supreme/Minutes/MNT092012.pdf. The Supreme Court found that the defendant in this vehicular homicide case should have been permitted to fully explore, at a hearing, juror misconduct stemming from evidence that two jurors had been Facebook “friends” with the victim’s mother. The problem, obviously, is that these jurors were asked questions under oath about any connection they had to the victim in this very high profile case, and apparently denied any connection.

The lesson for trial lawyers is to pose questions about Facebook during jury selection. The lesson for anyone who is a party to litigation is, know who your “friends” are, right?

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