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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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