The Champion

August 2013 , Page 55 

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Getting Scholarship Into Court Project

By Getting Scholarship Into Court Project

Read more Getting Scholarship Into Court Project columns.

Editor’s Note: The “Getting Scholarship Into Court Project” brings helpful law review articles and other writings to the attention of criminal defense attorneys. The project’s purpose is to identify scholarship that will be especially useful to courts and practitioners. This page summarizes articles the project’s advisory board recommends that practicing lawyers read in their entirely.

Margaret Colgate Love

Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation
31 St. Louis U. Pub. L. Rev. 87 (2011)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883809 

This article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by operation of law rather than by the sentencing court. It proposes a set of reforms that would limit the disruptive effect of these so-called “collateral consequences” on the guilty plea process and make a defense lawyer’s job easier. Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than deportation. At issue in Commonwealth v. Abraham is whether a retired public school teacher should have been warned by his lawyer that pleading guilty to a misdemeanor sex offense would result in the permanent forfeiture of his vested pension benefits. [The Pennsylvania Supreme Court reversed the Abraham decision. – Ed.] Part II looks at the Padilla decision and its progeny to date and proposes a test for determining when a lawyer should be constitutionally required to notify a client about a particular legal consequence of conviction, concluding that the pension forfeiture at issue in Abraham meets that test. Part III proposes three nonconstitutional reforms to complete Padilla’s unfinished business where the substance of plea agreements is concerned. The goal of these reforms is to minimize the extent to which harsh categorical sanctions destabilize the plea process on which the justice system has come to depend. These reforms would involve (1) compiling and disseminating information about collateral sanctions in each U.S. jurisdiction; (2) eliminating those collateral sanctions that are disproportionately severe or bear only a tenuous relationship to the crime; and (3) providing timely and effective relief from the sanctions that remain. These reforms will not only shore up the plea system, they will propel a move away from a punitive model of collateral consequences that is frequently self-defeating and unfair.

Jenny E. Carroll

Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment and Adult Process
61 Hastings L.J. 175 (2009)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375189 

This article argues that the Apprendi case line opens up the possibility that findings justifying transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a “beyond a reasonable doubt” standard. This tenet applies directly to juvenile transfer hearings, which rely on a consideration of facts to determine whether a juvenile should face trial and sentence in adult court. The facts that serve as a basis for transfer result in exposure to a higher sentence than could be imposed if the offender remained in juvenile court. Despite Apprendi’s readily apparent application, many juvenile courts have refused to apply Apprendi to juvenile transfer hearings. This article presents the argument and critiques the reasoning of courts that have refused to apply Apprendi in this context. It then explores the theoretical underpinnings of the reluctance to apply Apprendi, establishing the intersection of Apprendi and the juvenile justice system.

Andrea Roth

Safety in Numbers? Deciding When DNA Alone Is Enough to Convict
85 N.Y.U. L. Rev. 1130 (2010)
http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-85-4-Roth.pdf 

This article offers attorneys a coherent framework for litigating sufficiency of the evidence in cases in which a defendant’s guilt turns solely or primarily on a DNA database “cold hit.” Such cases are unique in that the strength of the DNA match depends on evidence that is almost entirely quantifiable. Despite the growing number of these cases and courts’ routine misapprehension of match statistics, no framework — including a workable standard of proof — currently exists for determining sufficiency of the evidence in such a case. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, the author argues that the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. The article also explains in depth several statistical fallacies courts have committed in determining sufficiency of the evidence in such cases thus far.

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