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Judges advise defense attorneys to ask clients about citizenship

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The Indiana Court of Appeals used its decision on a post-conviction relief appeal to “encourage” criminal defense attorneys to find out the citizenship of their clients and advise the clients as to the risks of deportation after pleading guilty.

Mark Clarke, who came to the U.S. from Barbados, claimed his trial attorney, Michael Caudill, provided ineffective assistance because he failed to inform Clarke that if he pleaded guilty to a drug charge, he could be deported. Caudill admitted in an affidavit that he did not advise Clarke that his guilty plea to Class B felony dealing in cocaine could subject him to deportation.

The post-conviction court denied Clarke’s petition for relief, and the Court of Appeals affirmed. In Mark Clarke v. State of Indiana, 49A02-1202-PC-65, the judges analyzed his case using Segura v. State, 749 N.E.2d 496 (Ind. 2001). Clarke argued that the requisite special circumstances in his case that justify setting aside the plea are that he has been in the U.S. for 11 years, his two children were born here, and, if deported, he may not see them again.

Judge Ezra Friedlander wrote that 11 years is not a long enough time to compel a finding of special circumstances and pointed out that Clarke’s two children were still in-utero when he pleaded guilty in 2007 and he is not married to either of his children’s mothers.

Also, the state had a strong case against Clarke if it were to proceed to trial, which included the drugs, a large amount of cash in his car, and likely the testimony of the two officers at the scene of the traffic stop and arrest. Clarke also received a significant benefit in exchange for his guilty plea, Friedlander noted.

He failed to establish that he was prejudiced by Caudill’s failure to advise him of the risk of deportation.

The appellate court also devoted a portion of its opinion to suggest that defense attorneys find out whether their clients are citizens and, if not, tell them about the risks of deportation. This would “obviate the need for post-conviction and appellate courts to undertake a ‘special circumstances’ analysis,” he wrote.

Friedlander also pointed out that this issue is coming up in other states, and the early trend appears to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients.

 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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