Can a non-citizen who pleads guilty to a drug charge be deported because of that plea, even if his lawyer told him that he would not risk deportation by pleading guilty?
The Kentucky Supreme Court said “yes.” Now, several students and professors involved in a new Supreme Court Clinic at the University of Pennsylvania Law School are hoping to convince the nation’s top court to say “no.” Oral argument in Jose Padilla vs. Commonwealth of Kentucky is scheduled for the fall.
“The lawyer was wrong,” says Penn Law Professor Stephanos Bibas, a former law clerk to Justice Anthony Kennedy and a former federal prosecutor who is leading the new Supreme Court Clinic. “Federal law is clear on automatic deportation for certain charges, and this is one of them. It’s draconian. And you shouldn’t be kicked out of the country because your lawyer got it wrong.”
Penn Law’s Supreme Court Clinic will be the first of the approximately half-dozen in the country that closely integrates clinic work with a semester-long academic seminar on the workings of the Court, Bibas said. Clinic students will be expected to enroll in the seminar before or at the same time as their clinic work.
The Supreme Court seminar is taught by Professor Amy Wax, who has argued 15 cases before the Supreme Court, and adjunct lecturer James Feldman, who has appeared before the Court 45 times. Both are former assistants to the solicitor general, the office that represents the United States at the Supreme Court. Guest lecturers typically include current and former high-ranking officials in the solicitor generals’ office and others who advocate before the Court.
The Padilla v. Kentucky case came to Bibas’ attention through two routes. Yolanda Vazquez, a clinical supervisor and lecturer at Penn Law, sought his advice for a paper she was writing about the issue at the same time that his former Yale Law School classmate and former fellow Kennedy law clerk, Stephen B. Kinnaird, contacted Bibas to see if he wanted to help petition the Supreme Court to take the case. Kinnaird is chair of the Supreme Court practice in the Washington, D.C., law offices of Paul Hastings.
That confluence of events led to Bibas and Vazquez writing an amicus brief in support of certiorari that, together with Kinnaird's reply brief, convinced the Court to take the case; to Penn Law students helping write a petitioner’s brief on the merits of the case; and to the formation of the new clinic at Penn Law that will work with the Supreme Court practice at Paul Hastings.
“This allows students to see how the Supreme Court really works,” said Kinnaird. “Some think of the Supreme Court as a self-contained institution, but it is outside parties and law firms that shape the Court’s docket.
“And for our law firm, we need bright and aggressive students to search for good cases, conduct research and help write briefs,” he added. “By having a law school on board, we can show clients that their cases are of broad public importance.”
Rachel Fendell, a member of Penn Law’s Class of 2010, researched immigration law for the Padilla brief and said she was struck by “how meticulous everything needs to be. It’s a whole different level; you need to be prepared for anything that could happen at oral argument.”
Bibas is using the new clinic’s search for cases as an opportunity to teach students about how the Supreme Court uses case selection to bring harmony to lower court rulings and what factors influence whether a case will be accepted and, if so, how to recruit others to help prepare an argument that goes before the justices. One of the next cases he plans to have the students work on is Ratliff v. Astrue, a South Dakota case in which the government seized an attorney’s fees to satisfy debts that her clients owed to the government.
“The quality of appellate lawyering in non-death-penalty criminal cases can be quite poor,” Bibas said. “We are looking to help underserved populations in cases that could improve legal protections for everyone.”
The new Supreme Court Clinic joins seven other clinics at Penn Law, along with externships, in which students get valuable practical experience in civil, criminal, transactional, legislative, mediation and transnational law, among others.
And for Professor Bibas and lawyer Kinnaird, the new clinic is creating partners out of one-time adversaries; in law school, Bibas defeated Kinnaird in the moot court finals when he persuaded a panel of judges that a jury had to be informed that the defendant was ineligible for parole before they could impose the death penalty.
“Stephanos got the side that actually won the real case,” Kinnaird said with a chuckle. “That’s the only reason he beat me.”