Pretrial negotiations and IAC

Thanks to LawProfsBlog here is a link to an interesting article:

Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

Stephanos Bibas, University of Pennsylvania Law School, U of Penn Law School, Public Law Research Paper No. 10-33, California Law Review, Vol. 99, Forthcoming

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

For court-martials under the UCMJ, think United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006)(sex offender registration) and Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff’d and remanded, United States v. Denedo, 129 S. Ct. 2213, 2224 (2009)(immigration consquences).  For further information about Denedo here is my post after the March 2010 action by NMCCA, and here is the denial of a grant by CAAF in September 2010.  Sadly, Denedo lost his challenge at CAAF because his appellate defense counsel missed the filing deadline.  So an appellate case that – Denedo alleges — began with trial defense counsel IAC ends with his appellate defense counsel missing a filing deadline.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

[this is not good cause to waive the deadline]

Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied[.]

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