Black Robes Speak!: March 2010
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Wednesday, March 31, 2010

BREAKING News: U. S. Supreme Court Rules That It Is A Violation Of The 6Th Amendment To NOT Tell Accused Of Immigration Risk Of Criminal Conviction.

The case is Padilla v. Kentucky, 08-651.Ch

Check out the case by reading it here; Or read from the AP, or excerpts below:

WASHINGTON (AP) — Immigrants must be told by their lawyers whether pleading guilty to a crime could lead to their deportation, the Supreme Court said Wednesday.

The high court's ruling came in the case of Jose Padilla, who was born in Honduras. He asked the high court to throw out his 2001 guilty plea to drug charges in Kentucky.

Padilla, who has lived in the United States for more than 40 years as a legal permanent resident, said he asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn't. Padilla's trial lawyer was wrong, and he now faces deportation.

His lawyer for the appeal told the Supreme Court that the incorrect information given Padilla was a violation of the Sixth Amendment right to “effective assistance of counsel.”

The Supreme Court's majority agreed.

“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the 'mercies of incompetent counsel,“’ Justice John Paul Stevens said in writing for the court.

“To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens wrote. “Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

The court sent the case back to the Supreme Court of Kentucky, which will decide whether Padilla's guilty plea should be thrown out.

Justice Samuel Alito and Chief Justice John Roberts concurred but said it was wrong to force criminal lawyers to attempt to explain what immigration consequence a criminal plea might bring. “A criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney's expertise,” Alito said.

Justices Antonin Scalia and Clarence Thomas dissented, saying the immigration consequences of a guilty plea were beyond the reach of the Sixth Amendment.

“The Sixth Amendment guarantees the accused a lawyer ‘for his defense' against a ‘criminal prosecution' — not for sound advice about the collateral consequences of conviction,” Scalia said.

Editor's comment: While I understand the logic behind the concurring and dissenting opinions, I ONLY agree with the majority here because the Attorney gave incorrect information which formed the basis for the guilty plea of his client in the first place.

It was the Attorney's duty to his client to find out what the correct state of law is before offering advice that is incorrect, and which his client relied on to his detriment.

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