This past Friday, the Court denied application for leave to appeal in six cases. Three of those involved a question arising under Padilla v Kentucky, the 2010 United States Supreme Court case holding that it can be ineffective assistance of counsel for a criminal defense attorney to fail to advise his noncitizen client of the immigration consequences of pending criminal charges. Additionally, the Court denied reconsideration in two cases, and it vacated a previous grant of leave to appeal and denied leave to appeal in one case. In the latter, the Court indicated that a jury may discuss a criminal case among itself while the case is ongoing.
In Butirus, Chan, and Chan, three of the denials issued on March 9, Justice Markman issued a concurrence stating that even if Padilla applies retroactively to these cases, in each the defendant failed to present any evidence that he was actually prejudiced by his trial counsel’s failure to advise him concerning the risk of adverse immigration consequences because each failed to establish that he would not have pleaded guilty but for the lack of advice about possible deportation.
In Richards, the case in which the Court vacated its earlier grant of leave to appeal, involved a criminal case where, under a pilot program instituted by the Court, the jury in a criminal case was permitted to discuss the trial evidence in the jury room while the case was ongoing. Chief Justice Young wrote a concurrence in the vacation and denial, stating that although criminal defendants have a right to an impartial juryand to a fair trial, the Constitution does not require unconditionally that jurors not discuss the case among themselves before the matter is submitted to them for decision.
Justices Kelly and Hathaway each wrote separately in dissent. They conclude that allowing jurors to discuss the evidence before deliberations begin violates a defendant’s Sixth Amendment right to a fair trial and an impartial jury, and accordingly they dissent from the vacation and denial of leave to appeal.
Justice Hathaway concurred in Justice Kelly’s dissent, and wrote separately to emphasize consternation at the Court’s failure to adhere to People v Hunter and to contest the evidence that the pilot program, and predeliberation jury discussions generally, enhance a jury’s ability to reach a fair result