At oral argument in Padilla v. Commonwealth of Kentucky (08-651) on Tuesday, the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys.  Arguing on Mr. Padilla's behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards.   Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between "the consequences that count and those that don't," Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns.  Mr. Kinnaird also emphasized the importance of Strickland's prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas.  However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.

Arguing on behalf of the United States as amicus in support of affirmance, Michael Dreeben agreed with Mr. Kinnaird that if an attorney does elect to advise a defendant with regard to the consequences of a guilty plea, his affirmative misadvice constitutes deficient representation under Strickland.  However, Mr. Dreeben went on to argue that the Sixth Amendment does not entitle a defendant to advice regarding potential immigration consequences in the first place.

Wm. Robert Long, in his argument on behalf of the Commonwealth of Kentucky, responded to a series of questions concerning the "professional norms" governing attorney conduct.  Disputing Justice Breyer's assertion that an attorney offering affirmative misadvice fails to meet professional norms, Mr. Long asserted that Strickland treats these norms as "guidesand does not set them as hard, fast rules."  Mr. Long also emphasized that a guilty plea must be "voluntary," indicating that Mr. Padilla met this requirement because he "possess[ed] full knowledge of [the plea's] direct consequences."

In his rebuttal, Mr. Kinnaird asserted that (1) Strickland does not apply solely to trial consequences, as indicated in Hill's application of the case to parole eligibility; (2) Brady v. United States, which governs the voluntariness of a plea, assumes that a defendant received competent advice from his attorney; and (3) courts which distinguish misadvice from failure to advise have not been overly burdened by their application of this practice.  Responding to Justice Alito's request that he identify the hypothetical circumstances which might fall into the same category as immigration consequences, Mr. Kinnaird indicated that the Court "should not draw lines" under Strickland, and that the Strickland inquiry should be applied on a case-by-case basis.

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