I couldn't agree more Terry.

Jinx.

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Originally posted by AndreaW:
Jinx.

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I guess I owe you a Coke.

In talking over with the judges and a few select members of the local defense bar, we're thinking of addressing Padilla by just adding two sentences to our pleas (which are already on the record as a matter of standard practice).

Right after the standard question of "do you think your client competent," we're going to add "have you informed your client of any immigration consequences, should they apply?"

A similar question directed at the defendant proper: "Has your attorney informed you of the potential immigration consequences, if they apply to your case?"

Our thinking is that this will forestall the vast majority of any collateral consequence attack as it confirms and memorializes the collateral consequence question on the record. Certainly, a desperate defendant can still attack on Padilla's faulty "readily apparent" and "bad advice" ground, but we're thinking this should insulate us from a lot of the more frivilous post-conviction attacks.

Thoughts, comments, suggestions?

How is that any more protective than the statutory admonishment? The problem is not with the defendant being ignorant of the chance of deportation; the problem is the SCOTUS implied right to know the exact likelihood of deportation, an answer that is simply not knowable.

A better set of questions would be, "Regardless what you have been told by your lawyer, do you understand that no human being is capable of understanding or predicting how immigration/deportation laws might apply in your case? Would you be pleading guilty even if you knew that you absolutely without a doubt no matter what were going to get deported?"

Simple solution: Always deport anyone convicted of any felony. I don't mean actually send everyone to the physical border... rather something like going through customs in the airport when you fly back into the USA. Citzens and legal aliens can "cross" back easily. Anyone else well I guess that would be up to the Feds but the solution of mandatory universal deportation for felons solves the question of unknowable incertainty.

... on the other hand this solution undermines whatever progress has been made by sanctuary cities.

OK I have another retarded solution: warn everyone that Congress may pass, at some unknown date in the future, a retroactive law condemning felons to a terrible fate worse than death.

This way, no matter what ultimately happens, it will be difficult to show harm.

Again, I agree with John Bradley. Any type of written admonishment or oral admonishment during the plea proceeding may be some help, but will not solve the problem. After all, the basic problem in these situations involves uncertainty as to what admonsihment will be adequate in a particular case, particularly in light of the inability to predict how immigration law will be applied to the situation in the future.

In addition, whatever admonishment counsel or the court give to the defandant, I guarantee that a later application for writ will claim that that admonishment was not sufficient because counsel did not make sure that the defendant understood that precisely whatever situation under current immigration law caused deportation proceedings to be initiated would have that consequence.

Incidentally, we have also learned that some judges here in this border area are sympathetic to efforts to avoid having individuals deported, particularly if they or their families have lived in the U.S. for some time, and thus find such claims to be credible.

Do we know if Kentucky had anything like the deportation admonishment? Why should a lawyer's bad advice trump a judge's admonishment that "hey, they could deport you over this plea"?

The cases I saw rely upon the language in Brady (not that Brady) that says an accused need only be informed of the direct consequences of his plea. As with Texas, Kentucky has held there's no constitutional requirement for informing a defendant about the collateral consequences of his plea. And, as you suspected, there's no admonishment statute (that I could find quickly) in Kentucky similar to the one in Texas. However, I assume the prejudice analysis in the lower court will reveal if Kentucky is different from Texas.

[This message was edited by David Newell on 04-13-10 at .]

My guess is that if the Kentucky case had included a judicial admonishment, it never would have been granted cert.

No doubt, Padilla is a wretched opinion. But it seems that if this decision does open the floodgates to IAC, and successful claims at that, then one way to deter them from arising is to hold counsel accountable for their pre-plea advice. That means someone has got to start regularly taking these successful IAC to the SBOT. The defense bar is always clamoring for more protection for their clients, now they have some, and they have to provide it. So when they don't provide it, they should answer for it.

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Originally posted by John A. Stride:
No doubt, Padilla is a wretched opinion. But it seems that if this decision does open the floodgates to IAC, and successful claims at that, then one way to deter them from arising is to hold counsel accountable for their pre-plea advice. That means someone has got to start regularly taking these successful IAC to the SBOT. The defense bar is always clamoring for more protection for their clients, now they have some, and they have to provide it. So when they don't provide it, they should answer for it.

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And if a defense attorney is found to be ineffective on an appointed case, they should be required to refund the fees paid by the county.

JM

I hear the theme from Man of La Mancha rising up through the air.

If lawyers will not hold each other accountable, then they shouldn't be heard to complain when another steps in to police them.

So criminal def. attys have to become experts in immigration law when giving criminal advice or they risk "being held accountable" by the bar?

Maybe if each def. atty. had four law clerks to research each client's situation, and then had a year to work out all the kinks--like the Supremes do--they could do what you ask. But as we have just seen, even the Supremes sometimes get it wrong. How can you expect defense attorneys--mere mortals--to be better than that?

I'm not trying to be a smart-ass, by the way.

I have to agree on this one. Holding defense attorneys accountable would require someone, somewhere to come to some firm legal conclusion about the immigration/deportation status of the client. We all know that, while you might be able to do some research into federal law, trying to give a definite answer is a losing game. So, how in the world would you hold a criminal defense attorney accountable for an opinion that SCOTUS judges can't even agree upon after a year of intensive work?

Texas really did come up with the best possible warning: hey, if you aren't from here, you might get sent back or be kept out next time you want to return. And, I really think that if the Padilla case had been litigated in the context of that warning, the case would have come out differently. Surely, it would have gathered five votes for saying that the warning was constitutionally sufficient.

I suppose we could change the word "may" in the warning to "dang well will", adopting more certainty in the warning.

Another thought: how long before this same litigation drifts over to the sex offender registration law, endangering thousands of sex offender convictions? After all, isn't it just as difficult to figure out exactly how registration will get triggered?

My point is that members of the defense bar brought the claim that led to the SCOTUS ruling. They got their ruling and it imposes a duty on them (--whatever that duty is!!!), so having got what they asked for, they should be the ones accountable. Other members of the defense bar should be up in arms either at their colleagues for getting the ruling, the court for failing to provide a pragmatic ruling, or both.

Any ideas how Padilla would apply to a situation where the (misdemeanor) prosecutor has the defendant enter into a pre-trial diversion agreement without the benefit of counsel? The PTD agreement includes language that the defendant waives his right to counsel, but nothing about the potential immigration consequences. Defendant is now cliaming that entering the PTD was "involuntary" since he is a resident alien and may be deported. Will Padilla impose a duty on the court or prosecutor in a case where the defendant is unrepresented?