Judges advise defense attorneys to ask clients about citizenship

Back to TopCommentsE-mailPrintBookmark and Share

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.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.