Recently in Sixth Amendment Category

U.S. Supreme Court to Decide Whether the Padilla Ruling Applies Retroactively

Many criminal defense and immigration attorneys are aware of the far-reaching implications of the U.S. Supreme Court's decision in Padilla v. Kentucky. The ABA Journal has recently posted on its website that the Supreme Court is considering whether the 2010 Padilla decision will apply retroactively to convicted criminal defendants who faced deportation before the Padilla decision was made.


In the Padilla case, the defendant pled guilty to transporting a large amount of marijuana. Mr. Padilla was not a citizen of the United States, and he asked his attorney whether he would face deportation if he agreed to the guilty plea. Relying on the fact that Padilla had lived in the United States for such a long time (and had served in the Vietnam War), his defense attorney erroneously told him that deportation would not be an issue. In reality though, pleading guilty made his deportation mandatory under the law. Padilla appealed to the Kentucky Supreme Court, insisting that had he had known that he could be deported for pleading guilty he would have gone to trial. Because the Kentucky Supreme Court denied Padilla post-conviction relief, Padilla's case eventually went to the United States Supreme Court.

The United States Supreme Court ultimately found that Padilla's defense attorney should have at least advised Padilla as to the risk of deportation, and by failing to do so had violated Padilla's Sixth Amendment right to effective counsel. Regarding whether this error was enough to reverse Padilla's conviction, the United States Supreme Court left that up to the state of Kentucky to determine.

Now, the Supreme Court must decide whether the holding in Padilla should apply retroactively. The Court has recently granted review to Chaidez v. United States, which involves a Mexican immigrant who pled guilty in 2003 to fraud involving more than $10,000, and is accordingly subject to deportation. Contrary to what the Supreme Court may have assumed when issuing the Padilla ruling, "federal and state courts are openly and intractably divided over whether the Padilla holding applies retroactively."

More information on this upcoming decision in the Chaidez v. United States matter can be found at the SCOTUSblog.

Tennessee Court Reprimands Detectives Who Posed As Criminal Defense Attorneys

January 18, 2011, by The McKellar Law Firm, PLLC

The Sixth Amendment to the U.S. Constitution provides, among other things, that an accused shall have the right to assistance of counsel for his/her defense. The Tennessee Constitution, Art. 1, ยง 9 provides for similar protections by mandating that "[I]n all criminal prosecutions, the accused hath the right to be heard by himself and his counsel." In Tennessee, the right to counsel attaches following the issuance of an arrest warrant, the holding of a preliminary hearing when no arrest warrant precedes the hearing, or the return of an indictment or presentment by the grand jury. State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980).


On January 13, 2011, the Tennessee Court of Appeals decided a unique case involving a defendant's right to counsel in the matter of State v Dawson 1-13-11.pdf, No. E2009-02469-CCA-R3-CD. In Dawson, two Sheriff's Department detectives devised a scheme to convince the accused, Dawson, that they were either attorneys themselves or were working for "mob lawyers" out of Detroit by the names of Harris and Fink, and that they were willing to provide him with legal representation. Dawson had previously been appointed counsel by the trial court. According to the Court of Appeals opinion, "The defendant testified that he believed that the fictitious attorneys Harris and Fink were representing him on all of his charges. He stated that the 'lawyers' instructed him not to cooperate or discuss any of the underlying facts of his cases with appointed counsel." Further, Dawson testified that he had no interest in working with appointed counsel while he was purportedly represented by attorneys Harris and Fink and that he had turned down plea offers from the State because he thought he would be released based upon their promises. Dawson said that attorneys Harris and Fink said that they would call appointed counsel. He said that he believed that "[t]hey had it all under control."

The Dawson court wrote, "Once the right to counsel has attached, the State is under an affirmative duty to ensure that no action is taken to interfere with an accused's right to counsel." The Court concluded that Dawson's right to counsel was violated by the Sheriff's detectives, and the Court referred to the officers' actions as "abhorrent," "unconscionable," and "egregious." The Appeals Court reversed the trial court's decision to deny the defendant's motion to dismiss the case, and the Court vacated Dawson's pleas and dismissed the indictments against him.

Convicted Murderer May Go Free After Improper Use of Informant

October 10, 2010, by The McKellar Law Firm, PLLC

Being a federal criminal defense attorney, I often hear people complain about how criminal defense attorneys will have their clients escape responsibility based on "technicalities" or "loopholes." If you are such a person, you will not be pleased with the Sixth Circuit Court of Appeals decision in Ayers v. Hudson, which was decided on October 5, 2010.


Ohio resident David Ayers was convicted of murdering 76-year-old Dorothy Brown by striking her repeatedly with a small, black iron. Ayers stole $700 from the victim. Ayers' conviction was based in part on the testimony of a jailhouse informant, who claimed that Ayers had confessed his role in the murder. Ayers appealed his conviction on the basis that his Sixth Amendment right to counsel was violated by allowing the jailhouse informant to testify against him.

The Sixth Circuit summarizes this area of the Sixth Amendment:

The Sixth Amendment guarantees a criminal defendant the right "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "This right has been
accorded, . . . 'not for its own sake, but because of the effect it has on the ability of the
accused to receive a fair trial.'" Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Thus, "once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009) (citations omitted). "Interrogation by the State is such a stage." Id. at 2085 (citing Massiah v. United States, 377 U.S. 201, 204-05 (1964); Henry, 447 U.S. at 274). See also Cronic, 466 U.S. at 659 n.25 ("The [Supreme] Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.") (emphasis added).

The Sixth Circuit ultimately decided that the Government's use of the jailhouse informant in Ayers' case violated the Sixth Amendment, and they ordered that Ayers receive a new trial or be released. The Court's reasoning behind its decision rested greatly on the fact that the Court viewed the jailhouse informant as a government agent once the informant had spoken to the police and returned to Ayers for additional questioning.

Additional Resources
David Ayers v. Stuart Hudson, Sixth Circuit Court of Appeals, October 5, 2010