Tuesday, February 15, 2011

A Judge Does the Right Thing

I was just reading that a judge in Virginia refused to follow a ruling by his state Supreme Court because that ruling would result in a violation of a criminal defendant's rights as established by the United States Supreme Court.  At issue is the obligation of an attorney to advise his criminal clients of the immigration consequences of a conviction or guilty plea.  That obligation was imposed by the United States Supreme Court in Padilla v. Kentucky.

The Virginia Supreme Court ruled that certain procedures are not available to raise the issue in state court post conviction relief proceedings.  Judge Dean Worcester disagreed and permitted a criminal defendant to raise the issue.  His rationale was that not permitting the issue to be raised is the equivalent of denying the right in violation of the holding in Padilla.  His opinion can be found here.

Without taking a position on whether he is right or wrong, it is nice to see a judge who understands that he has the same responsibilities as appellate court judges when it comes to following the constitution.  I am reminded of a hearing on a motion to suppress that I had in a case in east Tennessee a year or so ago.  The issue there was the recording of a criminal defendant in her home by a paid informant.  Many states have held that these recordings are inadmissible.  Tennessee has never ruled.

After completing my argument, the judge stated that he thought that it had merit but that he was going to deny the motion because, he said, these matters are best addressed by the court of appeals not trial judges.  I pointed out to him that he took the same oath to uphold the constitution as did the appellate judges but he was not swayed.

The rule of stare decisis, following the court decisions that have come before, is necessary in our legal system.  It is what brings stability to our rule of law. But blindly following precedent is just as damaging.  A judge must be free to uphold his oath to the constitution, no matter what level of the system he represents.  It is nice to see that at least one trial court judge agrees.


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