Justices consider: Can lawyer's bad advice void guilty plea?

McClatchy NewspapersOctober 13, 2009 

WASHINGTON -- The U.S. Supreme Court questioned Tuesday whether defendants are entitled to accurate legal advice on all the potential consequences of a guilty plea.

The case, Padilla v. Kentucky, which focuses on Jose Padilla, a Honduran-born immigrant who faces deportation after pleading guilty to felony marijuana trafficking, has broader significance for the more than 12.8 million legal immigrants living in the U.S.

(Padilla isn't connected to the so-called "dirty bomber," a U.S. citizen of the same name convicted of conspiring to aid terrorists.)

Padilla wants his guilty plea tossed out, arguing that it violates his Sixth Amendment rights guaranteeing effective assistance of counsel. He maintains that he wouldn't have pleaded guilty if he hadn't been misinformed by his court-appointed attorney of the broader consequences.

"The court will decide whether criminal defense attorneys must give their clients accurate information about the likelihood of deportation after entering a guilty plea," said Alison Parker, deputy U.S. Program director at Human Rights Watch, an international human rights advocacy group. "But it can't untie the hands of judges who have no choice but to deport people like Padilla with strong U.S. connections, tearing apart families and lives."

Attorney Stephen Kinnaird, representing Padilla in the Kentucky case, argued that it is the responsibility of defense lawyers to inform clients of both the direct consequences of a plea -- such as the scope and duration of a prison sentence -- and the broader "collateral" consequences of guilty pleas such as deportation.

"A lawyer has a distinct duty to assess the advantages and disadvantages of a plea," Kinnaird told the court.

In 2001, Padilla, a Vietnam War veteran, truck driver and legal permanent resident of the U.S. for 40 years, was pulled over at a Kentucky weigh station and arrested when Styrofoam boxes containing 1,033 pounds of marijuana were found in his 18-wheeler. Padilla was charged with several state crimes and felony drug trafficking. He originally pleaded not guilty but was detained for a year pending investigation of possible deportation.

The following year Padilla agreed to a plea agreement of reduced jail time after his court-appointed attorney told him that a guilty plea wouldn't affect his immigration status.

That advice was wrong.

Padilla was sentenced to five years in prison and five years of probation and now faces deportation -- fallout Kinnaird attributes to the poor legal counsel Padilla received.

The justices sharply questioned Kinnaird and expressed concern that such a stance would force attorneys to give myriad legal advice on the indirect consequences of a plea rather than focus on the case at hand.

Justice Ruth Bader Ginsburg wondered how time-strapped and overloaded court-appointed attorneys could be expected to distinguish between the broader consequences that could affect a defendant and those that don't.

Justices Anthony Kennedy, Antonin Scalia and Samuel Alito pressed Kinnaird on how attorneys and courts could protect themselves from situations in which, after sentencing, defendants later say they were misinformed of a plea's larger consequences.

Kinnaird argued that there are clearly distinctions between counsels' and defendants' responsibilities. Lawyers should give accurate legal advice if it's critical to a defendant's decision to plead guilty, and lawyers could always say they don't know the answer and recommend clients seek the assistance of an attorney with greater expertise, Kinnaird said.

"With all due respect, that's ridiculous," Scalia said. "It's a very strange line you draw."

Later, Justice Stephen Breyer pressed Kentucky Assistant Attorney General William Robert Long Jr., who argued on behalf of the state, on whether an attorney who failed to advise his client on possible deportation as a result of a plea had failed to meet prevailing professional norms. Scalia scoffed that if the norm included "lawyers who don't know diddly about immigration law giving advice, the norm was met."

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McClatchy Newspapers 2009

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