Friday, April 2, 2010

Supreme Court rules that bad advice re risk of deportation in criminal case resulted in ineffective assistance of counsel

Two days ago, the Supreme Court announced its decision in Padilla v. Kentucky (available here) ruling that failure to provide accurate advice as to the risk of deportation while advising a defendant to plead guilty to a crime constituted ineffective assistance of counsel and, thus, a violation of the defendant's Constitutional rights.

The case involved a legal permanent resident from Honduras who pleaded guilty to drug distribution charges after his lawyer advised him not to worry about deportation because he had lived in the U.S. for 40 years. When he found out that the erroneous advise exposed him to near-certain deportation he claimed ineffective assistance of counsel.

The ruling obviously suggests that lawyers have a duty to alert clients about all possible consequences that flow from pleading guilty. Justice John Paul Stevens wrote for the 7-2 majority in which he states that the weight of prevailing professional norms supports a finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel.

For an interesting take on the case go to Simple Justice, which criticizes the decision for imposing a new burden on criminal defense attorneys: "There was never any question that immigrants should be advised that a plea of guilty to an "aggravated felony" had immigration consequences. The question was who was responsible for doing so. . . . .What's unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less." Make sure you read the exchange in the "comments" section too.

For more on this story go to the The National Law Journal, The Blog of the Legal Times, Defending People, (here and here), the Legal Ethics Forum, and Koehler Law (which cites other blogs that I have not seen yet too: Mark Bennett, Gideon, Scott Greenfield, Jeff Gamso and Palm Beach Criminal Blog, (with a little primer on the basic issues criminal defense lawyers should look for).

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