Two Important Federal Decisions (PFO and IAC)

For a variety of reasons, its been a while since the Indignant Indigent has posted. However, the Indignant Indigent just couldn't let the day go by without updating readers on two important federal decisions that will dramatically impact New York State criminal practice.

First, almost one year after the Court of Appeals last upheld New York's persistent felony offender statute, the Second Circuit has invalidated the statute. The 54 page decision can be found here. The Indignant Indigent's previous coverage of the issue can be found here and the Court of Appeals' most recent decision in Quinones can be found here. The most interesting part of the decision (as in any federal habe) is that the petitioners were only entitled to relief if the sentence was imposed in contravention of "clearly established" Supreme Court precedent. In theory at least, it raises the issue of whether New York defense attorneys should have raised the issue on behalf of their clients despite the fact that the Court of Appeals had decisively ruled on the subject. Naturally, an attorney is never required to make a frivolous motion, but is a motion frivolous if it is governed by "clearly established" precedent from the highest court in the land? That question is likely the next to be litigated.

And speaking of ineffective assistance of counsel, the Supreme Court ruled today that it is ineffective assistance of counsel for an attorney to advise her client regarding the immigration consequences of a plea. The Indignant Indigent maintains that it should be a standard part of any defense attorney's practice to ask every client at intake one simple question: "Where were you born?". Sometimes the answers are surprising and the answer to this question can help the attorney avoid a malpractice suit and help the client avoid deportation to Liberia, for example. (Note: the Indignant Indigent suggests "where were you born?" instead of "are you a citizen?" because some clients do not know, or are unwilling to reveal, their actual immigration status).