Supreme Court Says Lawyers Must Inform Clients of Deportation Risks

From the ABA Journal:



The U.S. Supreme Court has ruled that lawyers have a Sixth Amendment obligation to warn their clients when their guilty pleas can result in deportation.

Justice John Paul Stevens wrote the majority opinion (PDF) finding that the lawyer for Jose Padilla should have advised him that a guilty plea to transporting marijuana would make him subject to automatic deportation.

"When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," Stevens wrote.

“We now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens said. “Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

Justices Antonin Scalia and Clarence Thomas argued in dissent that majority was seeking to make the Constitution "an all-purpose tool for judicial construction of a perfect world."

Padilla alleged his lawyer had assured him that he did not have to worry about deportation because he had been in the country for so long. He never got a hearing on the claim. He will be allowed to withdraw his guilty plea if a court on remand determines he was prejudiced by the bad advice.

Padilla was a Honduran native who had served in Vietnam and was a legal permanent resident in the United States for 40 years before he was caught with 1,000 pounds of marijuana in his truck.

The state of Kentucky had argued that lawyers are obligated only to make sure their clients understand the direct consequences of a guilty plea, rather than the collateral consequences such as deportation.

The United States took a middle ground in an amicus brief, arguing that even if there were a Sixth Amendment violation, Padilla’s guilty plea must stand because evidence of guilt was overwhelming.

Stevens' opinion was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Anthony M. Kennedy and Stephen G. Breyer.

A concurring opinion by Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr., said a criminal defense lawyer provides ineffective assistance if he or she misleads a noncitizen about the consequences of conviction. But the lawyer should not have an obligation to advise the client other than to warn of possible adverse consequences and to advise the client to seek an immigration lawyer’s advice, they said.

Scalia wrote the dissenting opinion that was joined by Thomas.

“In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised,” Scalia said. “The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”

Reduction of Community Service Periods

Probation, or as it is called in Texas, Community Supervision, is a good way for clients to avoid having to go to jail. Under Chapter 42.12 §20 of the Texas Code of Criminal Procedure, a defendant who is on community supervision may have their community supervision reduced or terminated. Once a defendant has completed 1/3 of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced by the judge. A defendant’s community supervision shall be reduced or terminated upon the completion of 1/2 of the original community supervision period, unless the defendant is delinquent in paying fines, costs or fees that the defendant has the ability to pay, or the defendant has not completed court-ordered counseling or treatment. If the judge discharges the defendant, the judge may set aside the verdict or permit the defendant to withdraw his or her plea, and the accusation, complaint, information or indictment shall be dismissed. The defendant would then be released from all of the penalties and disabilities associated with having a guilty verdict or plea on their record.

This chapter of the Texas Code of Criminal Procedure is a great tool for a client that has either fully completed community supervision, or has completed at least half of the community supervision period. Once the judge has set aside the verdict or permitted the client to withdraw his guilty plea, the client can apply for an expungement and his or her record would be clear of the crime. If you think you might qualify for this, please call us at (972) 499-8129 and let us help you clear your criminal record.

Clients Without Citizenship: What every Criminal Lawyer Should Know About Immigration Courts

A very good article from the ABA Around the Bar Blog.

Clients Without Citizenship: What every Criminal Lawyer Should Know About Immigration Courts

An estimated 300,000 children of illegal immigrants are born in the United States every year, according to the Pew Hispanic Center. Because they are born in the United States, these children are automatically U.S. citizens.

In many cases their parents use their children’s citizenship to begin the process of securing citizenship for themselves. However, there are more barriers to obtaining U.S. citizenship than loopholes.

Criminal defense lawyers need to make sure they are aware of the consequences of criminal convictions from both a criminal and immigration court perspective when working with immigrant clients as outcome could permanently affect their opportunities for citizenship.

Those were some of the messages presented at “Prosecuting and Defending Immigration-Based Criminal Offenses: What Prosecutors and Defense Attorneys Should Know,” an American Bar Association Criminal Justice program presented Feb. 5 during the ABA 2010 Midyear Meeting in Orlando, Fla.

Participants discussed the complications and loopholes – or lack thereof – in dealing with various levels of criminal based offenses under immigration law statutes. They recommended that lawyers working with clients who are immigrants should gather the following information:

* Country of origin
* Immigration status of family
* Lawful status (i.e. green card, working visa etc.)
* Criminal history
* Illegal entry or re-entry
* Alien File (A-File)

Panelists pointed out that anything in a client’s criminal history falling under the definition of an aggravated felony will keep that immigrant client from being granted relief from deportation.

Importantly, they stressed, in immigration, misdemeanors can be considered an aggravated felony, meaning that criminal laws for citizens and immigrants are not the same. The definition of aggravated felony in immigration courts has changed many times based on decisions by Congress because the federal government confers citizenship. They also noted that future congressional changes to the definition can be applied retroactively.

Another important factor is that the rights of citizens to counsel in criminal cases and to exclude illegally obtained evidence do not exist in an immigration court. However, due process applies to all persons in the U.S. including aliens.

Throughout the session, panelists emphasized that a criminal defense lawyer should either hire or consult with an immigration lawyer early on the in the criminal process because each discipline has a different objective.

Although in criminal law avoiding a conviction is the goal, it may not be such a great thing for an immigrant without citizenship status, panelists acknowledged. Also it is important to keep in mind that reversed convictions do not count in immigration court, but expunged convictions do.

Other tools for a defense lawyer that the panel discussed include awareness of opportunities to reopen the immigration court proceedings, knowledge of how to set aside a removal deportation order and understanding how to vacate prior convictions.

A potential upcoming change in immigration law is the case of Padilla v. Kentucky, a pending Supreme Court case that will determine whether an alien was denied effective assistance of counsel and thus entitled to a reversal of conviction based on failure to warn or advise of the immigration process and convictions.

Panelists included:

* Julia Preston, reporter, National Immigration Correspondent, New York Times
* Jason Linder, assistant United States attorney
* Jaime Hawk, assistant federal defender
* Andrew Feldman, Miami lawyer
* Robert McWhirter, Maricopa County (Ariz.) Legal Defenders Office
* Earle Wilson, U.S. Immigration Judge.

More information about the differences between immigration courts and criminal courts is available in a book written by panelist Robert McWhirter, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers, published by ABA Publishing.

JD Supra: Legal Articles - The Expansion of Constitutional Right to Counsel by the US Supreme Court – Who Pays?

JD Supra: Legal Articles - The Expansion of Constitutional Right to Counsel by the US Supreme Court – Who Pays?

A great and well thought out blog article on the right to counsel afforded by the Sixth Amendment by Terry Lenamon.

The Expansion of Constitutional Right to Counsel by the US Supreme Court – Who Pays?
January 31, 2010 by Terry Lenamon’s Death Penalty Blog

According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid. The result of this financial myopia is a deepening financial crisis in Florida and across the country today.

Applying the Constitutional Right to Counsel

Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application. For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression. State courts were a different story, however.

Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts. Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor. Legal Aid? Public Defender? These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).

Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area. Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern. What was at one time a stigma – that lawyers work for a profit -- is an attitude that has not stood the test of time.

Expansion of the Right to Counsel into State Courts – first, the felonies

As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant. While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.

It took almost 30 years for the 6th Amendment to be applied to state felonies that did not involve the death penalty. With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state. With Gideon, the High Court had spread the shade of the 6th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue.

Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants

Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).

Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process

Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case. Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself.

For example, the Sixth Amendment right to counsel was held to apply in:
arraignments (Hamilton v. Alabama, 368 U.S. 52 (1961));
appeals of right (Douglas v. California, 372 U.S. 353 (1963));
post-arrest interrogation (Miranda v. Arizona, 384 U.S. 436 (1966));
line-ups (US v. Wade, 388 U.S. 218 (1967)) ;
probation and parole proceedings (sometimes)(Mempa v. Rhay, 389 U.S. 128 (1967)); preliminary hearings (Coleman v. Alabama, 399 U.S. 1 (1970));
sentencing (US v. Tucker, 404 U.S. 443 (1972));

More Expansion – Into Quasi-Criminal Proceedings

Like kudzu in the South, the reach of the 6th Amendment right to counsel continues to grow, moving past boundaries of the past. Today, indigent defendants in a range of proceedings that are not within the criminal justice arena proper are nevertheless within constitutional mandate. For example, indigent citizens alleged to be mentally incompetent and facing commitment proceedings are entitled by law to legal counsel. Indigent parents facing the loss of their paternal rights due to allegations of child abuse or child neglect are also entitled to state-funded legal counsel. There are many more.

Show Us the Money

Awareness of the need to fund all these appointments of counsel has not gone totally unnoticed by the U.S. Supreme Court. For example, Justice Powell pointed out that “available funding” was an acute problem back in 1972, when he concurred in Argersinger and its expansion of the right to misdemeanor cases carrying the possibility of jail time. Argersinger, 407 U.S. at 59. And, the Argersinger majority did tip its hat to the money issue when it opined that lawyers be provided when only fines where at issue would “impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.” Id., at 373.

Still, the economic realities of how lawyers are to be paid – and the expenses of litigation are to be covered – by states who are also responsible for paying the legal fees and costs of prosecuting the exact same case have not been a bull’s eye topic of the United States Supreme Court. State legislatures and the federal government are left with the implementation, and things are not going well.

Aside from their personal determination to do their best for their clients, defense attorneys are constitutionally mandated to provide “effective assistance,” and their failure to do so in any criminal proceeding in which counsel appears can be the basis for appellate reversal of any conviction. Strickland v. Washington, 466 U.S. 688 (1984). Financially, the indigent defense matter may not be profitable – it may well be a loss leader on the firm’s docket – but legally and ethically, the case is not to be viewed any differently than any other case undertaken by the firm.

This is particularly difficult conundrum for Florida criminal defense attorneys who are death penalty qualified. The expansion of the right to counsel in this country has grown to stretch beyond all reason the monies available for indigent defense in this state. Some defense attorneys have faced bankruptcy, and some judges have started making involuntary appointments (ignoring the attorney’s needs or desire to decline the case) in their frustration.

And no where is this financial crisis more grave than in the circumstance where an indigent defendant (sometimes suffering severe mental illness, mental retardation, or other significant handicap) is facing the possibility of death at the hands of the state for a charged capital offense. Particularly in these capital cases, the roar of injustice sounds most loudly.

Four Dallas High Schools Threatened with Closure

This story was from an article in the Dallas Morning News. You can read it here:.

To sum the story up, four DISD high schools: Kimball, Seagoville, Pinkston, and Roosevelt, have received the state's lowest rating possible of academically unacceptable for the past four years. If they don't improve their rating this year, the Texas Education Agency has threatened to shut the schools down. DISD has come up with alternative plans to keep the schools open that would turn the schools into magnet schools. Up to 75% of the staff could be let go, and 50% of the students would be sent elsewhere.

I know this blog is typically a blog on the latest or interesting topics in criminal law, but I thought it was worth spending a few minutes on this topic. The struggles DISD are facing are unfortunately not unique to Dallas. I would venture a guess that a high percentage of major U.S. cities are facing these same problems with their school districts. To me, the answer obviously isn't simple. There are just too many problems converging and the dam just can't hold up. You have the problem of completely inept leadership at the administration level. Michael Hinojosa has been a complete failure as a superintendent, the proof being that for the past two years he has not been given a contract extension at his annual evaluation. That ineptness from the top flows down and permeates every level of administration in the DISD. I'm not saying there aren't good administrators in the DISD, but the inept ones most likely outnumber the good ones. This attitude is present in the classroom as well; there are simply too many teachers working in the DISD that are there to collect their paycheck.

The second issue that is at the forefront with these schools is poverty and the plight of the inner city. Simply throwing money at these four schools will not solve the biggest problem the schools face in my opinion. A huge percentage of these students come from single person households, where mom or dad has to work two, three or four jobs just to put some food on the table. Many of the students themselves are parents. The pressure to join gangs, sell drugs and live the "thug" life is everywhere. What is the answer to this? I know there is a percentage of kids in DISD that want to do well in school so that they can get out and make a better life for themselves. Is the answer to simply concentrate on these students, which I think the magnet school program is designed to do, or is the goal to try and reach every student even if many don't want to be reached. I simply don't know. Hopefully these schools can improve, but recent history isn't on their side. For the students' sake, I hope DISD can handle this without their usual ineptitude and figure out a way to improve these and all the schools in the DISD.

‘Caffeine Psychosis’ May Have Caused Man’s Erratic Driving, Defense Lawyer Says

Really? This is an article posted on the ABA Blog.

‘Caffeine Psychosis’ May Have Caused Man’s Erratic Driving, Defense Lawyer Says

Posted Dec 10, 2009 6:17 PM CST
By Martha Neil



A hard-working financial analyst for the University of Idaho routinely chugged coffee and energy drinks and may have been under the influence of "caffeine psychosis" during an erratic-driving incident that put two college students in the hospital in nearby Washington state, his lawyer says.

Attorney Mark Moorer, who represents Dan Noble, told a Whitman County Superior Court judge that his client could have been high on caffeine when he struck two student pedestrians on the Washington State University campus, according to the Associated Press and the Huckleberries Online blog of the Spokesman-Review.

Judge David Frazier ordered Noble, 31, held until his mental status can be evaluated. Noble is charged with vehicular assault, hit and run and resisting arrest.

The two students are reportedly recovering from their injuries.

Florida v. Powell , Oral Argument December 7, 2009, U.S. Supreme Court

In Florida v. Powell, the issue was whether the Florida Supreme Court's ruling that a suspect must be expressly advised of his right to counsel during custodial interrogation conflicted with Miranda v. Arizona and decisions of federal and state appellate courts.

On August 10, 2004, police investigators went to the apartment of Kevin Dewayne Powell, where his girlfriend permitted the officers to enter the apartment. The officers searched the bedroom, where it appeared Powell had been. In the bedroom, they found a loaded 9mm handgun. Powell was given the Miranda warnings on the Tampa Police Department Standard Police Form 310 and subsequently arrested and questioned at the Tampa Police headquarters. The written warning on the form states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

The detective at Powell's trial testified that Powell agreed to talk and admitted that the handgun belonged to him. Defense counsel objected on the ground that the Miranda warning was inadequate. The court overruled the objection and Powell was convicted of being a felon in possession of a firearm.

On appeal, the Florida Second District Court of Appeals reversed the conviction on the grounds that the warnings read to Powell did not comply with Miranda and were deficient under the Fifth Amendment. The Court emphasized that the right to talk to an attorney before questioning was not the same as having a right to having an attorney present during questioning. The Florida Supreme Court affirmed the decision.

The circuit courts have split over this issue. Four circuits have held that a general warning of the right to an attorney is sufficient, while four circuits have held that Miranda requires an express warning of the right to counsel during questioning.

This case will give the Supreme Court an opportunity to refine the procedural guidelines set forth in Miranda by deciding whether a defendant must be adequately informed of his right to counsel during questioning, or whether a general warning of the right to an attorney is sufficient. It will be interesting to see which side the Court comes down on in this issue.