Knowing the possible consequences

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

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.

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

“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.”•