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Knowing the possible consequences

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In her Allen Superior courtroom, Judge Fran Gull makes a point to tell every defendant who comes before her that signing a guilty plea could impact his or her immigration status.

Until recently, the judge didn’t provide that warning. But a ruling from the Supreme Court of the United States in March 2010 made her more mindful of what those appearing before her know, and she wants to ensure they understand that signing a plea agreement could impact their immigration status or residency in this country.

The holding in Padilla v. Kentucky requires criminal defense attorneys to advise clients about possible immigration-related consequences that might materialize from signing a plea agreement. The ruling created ripple effects throughout the legal community as more lawyers and judges have grappled with how to best respect the spirit of that ruling, and many are shifting their practices and policies to make sure that notification isn’t overlooked.

gull Gull

While lawyers are tasked with making sure clients are aware of the impact, some have decided the courts should be the final gatekeepers in ensuring defendants’ Sixth Amendment rights are protected and lawyers aren’t rendering ineffective assistance of counsel.

“The dilemma we face is that if we don’t ask everybody, we’re going to be accused of profiling and not treating everyone the same,” Gull said. “Having the court handle the warning in the guilty plea stage prevents defendants from coming back later and saying they were never warned.”

Allen County’s approach is one that more judges are considering after the Padilla ruling came down – some had already started using a similar approach because of past Indiana appellate caselaw implying that requirement – but a consistent approach hasn’t been established.

Courts continue studying Padilla and its impacts, and some judges in Marion and Lake counties say individually they are notifying defendants during initial or plea hearings about the possible immigration consequences they could face.

In Marion County, Superior Judge Mark Stoner says that he has been asking defendants about those negative immigration effects if the person has an interpreter and confirms being a citizen of another country. The prosecutor’s office incorporates language mentioning deportation in major felony guilty plea agreements, he said.

Lake Superior Judge Tom Stefaniak said he’s also notifying defendants during initial and plea hearings, though he says not all criminal and county court judges are doing that.

Taking responsibility

Not everyone in the legal community agrees the courts should be taking that approach so late in a case since it falls on an attorney’s shoulders to provide that notification and legal advice. But in the end, both courts and lawyers are working together to make sure defendants understand the possible immigration implications of pleading guilty.

finney Broyles

“Developments in immigration law since 1990 have made the whole situation progressively more threatening for aliens convicted of a broad range of criminal offenses, including many that formerly generated no immigration penalties,” said John Scanlan, a professor emeritus at Indiana University Maurer School of Law. “The bottom line is that many criminal lawyers face sanctions unless they learn a lot of immigration law fast, and everyone is trying to make sure this is addressed.”

Questions remain open following the ruling – specifically whether Padilla is retroactive and whether the holding covers collateral consequences outside the deportation context. The 7th Circuit Court of Appeals ruled in August that Padilla is not retroactive, but the Circuits are split on that issue and the SCOTUS will likely need to weigh on at some point.

In the meantime, public defenders have voiced concern that the decision puts additional pressure on them to advise clients on complex immigration issues and in other areas of the law unfamiliar to them. That concern has led both prosecutors and defenders to learn more about immigration law and to seek out more information from fellow attorneys practicing in immigration law.

“There’s a lot more overlap than we’ve ever had before,” Indianapolis immigration attorney John Broyles said about criminal and immigration law. “From our side, we’re getting more criminal defense attorneys referring clients to us and we’re working more closely with a larger group statewide than ever before.”

Broyles said the biggest issue is attorney awareness and making sure they are adequately advising clients about the possible immigration effects. He found many immigration clients post-Padilla had been inadequately advised in a criminal case or not even told about the possible immigration consequences.

“Unless you know substantive immigration law, it’s hard to look into the future and know how this could impact your client,” Broyles said. “Criminal defense attorneys have to figure out what a client’s immigration status is, something not always easy in itself, and then be able to determine how a conviction could impact possible future immigration cases that use complex standards and fall under different laws.”

Broyles sees a danger that some attorneys might start developing a pattern for certain types of clients and cases, thinking that one is similar to another without taking all the nuances and variations into account.

cook-david-mug Cook

“Don’t assume the next person who comes in with an identity theft case warrants the same plea agreement you just gave to someone else in an identity theft case,” he said. “I’m really hopeful they seek out immigration counsel and get that specific information they need on a case-by-case basis.”

Indianapolis attorney Dave Cook, former Marion County Public Defender who went into immigration-focused criminal defense after leaving office in 2007, said he filed multiple post-conviction relief petitions for clients after Padilla came down. Before Padilla, Cook said that there was a mistaken belief in the defense bar that it was sometimes better to not know about those immigration consequences so that if asked, an attorney couldn’t be held to that knowledge.

For example, he handled a drug case where a man’s previous lawyer went on the court record saying that a misdemeanor drug conviction wouldn’t result in deportation, when in fact immigration law says that those lesser crimes could count against someone.

“You recognize that, when you do criminal work, many people are penalty-focused in criminal cases and they’re only looking at whether they will go to jail and for how long,” he said. “So often, you have clients who are willing to plead as long as they can avoid jail. As a lawyer, you have to look past that penal interest and whether you’ll win the criminal case and focus on the bigger picture of how this person’s life might be impacted.”

In Allen County, Gull is trying to make sure those who come before her in court know that plea agreements could impact their residency. She has gotten many surprised looks from people during the guilty plea process when she mentions the immigration consequences. Whether or not the attorney may have informed that person about the immigration possibilities isn’t the point, Gull said. It’s about taking another step to make sure defendants understand their rights.

“It’s making a nice clean record so these issues don’t come back to haunt us,” she said.

But a court’s approach providing the notification isn’t the answer to what the Padilla court found as a problem, Cook said. As an attorney who’s successfully merged immigration and criminal defense practices, he doesn’t think the court notification addresses the concern because it’s aimed more at protecting the courts and not the defendant’s rights.

“Putting a clause in the agreement and telling them about it doesn’t really resolve the issue of whether their attorney has given adequate counsel,” he said, noting that if a court says anything about this it should be at the earliest point in the process and not at the last stage of a guilty plea hearing.

“From a judge’s perspective, it may fix any problem they might see from this. But it doesn’t really fix the problem that exists about adequate representation. You can’t take that from the lawyer’s hands because it’s that person’s job to make sure their client truly understands.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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