'Collateral' No More — The Practical Imperative for Holistic Defense in a Post-Padilla World...Or, How to Achieve Consistently Better Results for Clients

J. McGregor Smyth, 31 St. Louis University Public Law Review 139

(January 2011)
Collateral No More article cover image

This article argues that any discussion of changing defense practices must squarely address why defense attorneys must approach their work in a new way and how they can do it in our high-volume reality. The author asserts that defenders must know that this approach works for clients, works for their practice, and is feasible.

Part I discusses the constitutional duties mandated by Padilla v. Kentucky and how embracing its most important lesson about great advocacy will drive and inspire better defense practice. Recognizing that constitutional mandates never sufficiently motivate change, Part II addresses the why, outlining the devastating impact of criminal charges on families and the measurable, improved outcomes that result from integrating knowledge of this damage into every stage of defense strategy. 

Part III tackles the difficult question of how. Building on nearly fifteen years of proven results from an integrated model of defense services, this section details strategies for using knowledge of clients and these “collateral” consequences to obtain better outcomes in criminal cases from bail to plea to sentencing, manage risk, obtain more equitable discovery, and build better relationships with clients. The U.S.'s high-volume criminal justice system, defined, the author argues, by assembly-line pleas to minor offenses, tries its best to reduce people to defendants and cases and avoid any acknowledgment of the true damage it inflicts daily. The Supreme Court's reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function. Finally, Part IV discusses the imperative for holistic defense in a post-Padilla world and outlines one proven model.