I've either been in trial or working on a complicated federal writ for the last several weeks, and haven't had a chance to write anything about the Supreme Court's decision in United States versus Padilla. The reaction to that decision has been surprisingly mixed. I would have thought all defense lawyers viewed it as a step forward. Unfortunately, some look at it as another obligation -- something else they have to do. I can't argue with the fact that determining the immigration consequences of a conviction is a difficult process, especially for non-immigration lawyers. However, it's not about us -- it's about the clients, and it is important to them.
What interests me more about the decision in Padilla is the impact it will have on prior convictions. At first blush, it would appear to have little effect in jurisdictions such as Texas, where immigration admonishes are provided. However, looking at it more closely I believe it can be a viable means to attack some convictions. There is a distinction between those crimes which automatically lead to deportation, and those where deportation is only a possibility. Where the result is known, it is not going to be enough to tell a defendant that he might be deported. That carries the possibility that he might not be. If the conviction was for something that would automatically lead to deportation, I believe a defendant may be able to challenge that conviction if he did not know that would be the result.
Of course, being able to challenge a conviction and actually being successful are two separate things. To be successful, you will have to convince the court that you would not have pled guilty had you known the consequences. When the evidence is overwhelming, and there is no doubt you would be convicted, that is going to be a difficult burden to overcome. On the other hand, if there were legitimate issues to pursue at a trial, he might be successful. Of course the problem will be that you have been deported, and many of those who qualify for relief may live no longer be in the United States.
A more interesting aspect of Padilla is the effect it may have on other cases. The courts consistently rejected claims, because they found immigration consequences were collateral. The law has always been that a lawyer does not have to advise a defendant of all the collateral consequences flowing from a conviction. To a point that is reasonable. However some consequences are so significant that no one can seriously claim it would not be an important factor in deciding to enter a plea. Four years, courts considered sex offender registration to be a collateral consequence. Now most courts make efforts to ensure that a defendant is aware of the registration requirements before taking a plea.
What else may be collateral? One that comes to mind immediately are the surcharges imposed for driving while intoxicated convictions. Can you seriously argue that a $1000 year assessment is not a significant consequence. Hopefully, alll lawyers advise clients of that requirement. If they don't however, that could be a legitimate basis for challenging a conviction.
In the end, what is a collateral consequence that may invalidate a conviction is probably based on at least two things. One is that it is a consequence that is automatic -- that is it is imposed in every case. The other is that it is significant, in that it has a serious impact on a person's life. If those two factors are present I believe you have a legitimate claim, and one that is worthy of consideration.
In the end, instead of criticizing Padilla we need to embrace it. Not only is it a guarantee that clients will be aware of all the consequences before they enter a plea, but also may provide a vehicle for challenging convictions that were not knowingly entered into. In my mind, that can be nothing but a good thing.
The traditional thinking among criminal defense lawyers is that publicity is a bad thing. Most of the time that is true. Everyone has seen the press conferences orchestrated by the government where they announce an indictment or big arrest. Along the same line are the perp walks, were some prominent defendant is pared into the jail in front of a crowd of cameras. There is only one reason to do that, which is to get the general public starting to view the accused as a criminal defendant. In other words, someone who did exactly what he is charged with doing.
Maybe it's because most of the facts in criminal cases are bad, and we don't want to reveal them. The reality is we spend much of our time in negating and explaining the evidence. Rarely do you see a criminal defendant actively seek out publicity. When they do it usually backfires. Think of how many times you have seen defendants impeached with statements they made to the media.
What started me thinking about this is seeing a news story about a defendant who put up a billboard proclaiming his innocence. Granted, it was someone who had already been convicted and was now trying to challenge that conviction. It was still an affirmative use of publicity that which you rarely see.
Maybe the story caught my eye because I have several cases where I have been struggling with the proper use of publicity in a couple of cases where actual innocence is a real issue. There is a big difference between a defendant going to trial, and one who is already convicted. You don't have as much to lose, because there is not as great a potential for harm; of course there is still some, because anything can be used against you. On the other hand you face a far bigger hurdle than you do before trial. Once you are convicted, everyone assumes you are guilty and you are just one of thousands of defendants who are claiming they are innocent. That view is shared by the legal system. Postconviction litigation is extremely complex, and most of the rules are in place to ensure that convictions are rarely overturned.
In the last several years we have seen a steady stream of people coming out of prison after serving years for something they did not do. Most people are now at least willing to accept the idea that innocent people are in fact convicted. Of course, the problem is convincing the courts that your client is one of them. Not only do courts have to deal with the legal presumptions, they also deal with and are aware of public perception. That is why I believe there are some cases where publicity is a good thing.
I don't think a judge or other elected official will ever change their mind,or decide a case based solely on publicity or public sentiment. However, publicity does generate discussion, which they are aware of. After all, they are members of the community, and you have to expect people they know talk with them about issues in the news. While it might not change their mind, it may cause them to look at a case in a different light, or even more closely. Many times, that is all you need, - and all you can ask.
One of the many things people have difficulty understanding is that police officers can lie with almost complete immunity. They can do whatever it takes to obtain a confession, or get evidence. I’m fairly sure that it’s something taught in training. One of the most common techniques where there are multiple suspects is to tell one the other has already given a statement.
Apparently there is a limit on what officers can do. It’s all right to lie, but you cross the line when you physically manufacture evidence. The Texas court of criminal appeals recently considered a case where the officer did just that. In order to get a confession he told the defendant that his fingerprints were on the murder weapon, and created a report which showed that.
Texas has a statute which prevents the state from using evidence that was obtained because of some violation of the law. In this case the defendant argued that the officer violated the statute preventing tampering with a government record. The court agreed, and held that although police can use trickery and deception they cannot use false or manufactured documents.
The question you might have is what happens to the police officer? Clearly, he violated the law when he physically altered and you report. The Court of Criminal Appeals even said so. Will he be prosecuted? I seriously doubt it. After all, anything done in the name of law enforcement is fair game. The worst thing that will happen is that he may not be able to use the confession. That is even in question, because the defendant still must prove the confession was the result of the improper conduct.
There clearly is -and always has been - a double standard when it comes to law enforcement. Is it any wonder why some people question the system? A system that allows officers to break the law as long as they are trying to catch someone who is breaking the law. At least we now know there are limits, even if there are no consequences.
I can’t say that I’m surprised anymore by anything the Texas forensic commission does. To be fair, to be fair, it’s not actually the commission, but it’s chairman - John Bradley. So far the condition has not had a chance to do anything; not only they have not done anything, they can’t even talk about what they are not doing because Mr. Bradley has instructed them to not talk to anyone about commission business.
The latest news from the Texas Forensic Commission that makes you scratch your head is the decision to deal with the case of Cameron Todd Willingham. Those who have been following this know that it was the commission’s decision to hear evidence from Dr. Craig Beyler that caused the jet governor to jump in at the last minute and remove several of the commission members. Now Mr. Bradley has apparently decided that they will take up the case, and appointed a committee to do that. It should be no surprise that he is a member of the three-person committee. It also should be no surprise that they are going to meet behind closed doors next week. What is a surprise is that the confirmation of the committee appointments is on the agenda for the day after the scheduled meeting. In other words, they are going to meet before the full commission has even approved the committee appointments.
Even those who harbored doubts initially now recognize that the committee’s actions are entirely political. Few doubted the governors last minute decision to replace committee members was meant to postpone consideration of the Willingham case. Some had doubts that there was any agreement with the chairman to delay the case, or scuttle it entirely. Those doubts have since been removed also. Almost everyone now agrees that nothing is going to happen until after the election.
What surprises me is that despite the consensus of opinion regarding the commission, Mr. Bradley is either oblivious to it, or doesn’t care. I sincerely doubt he is oblivious, since every major newspaper in the state has been critical of his actions. Not only has he done nothing to try and dispel the concerns, he appears to have gone out of his way to create new ones. You can only assume that both he and the governor shares the opinion that they simply do not care what everyone thinks.
I’ve said before that the commission has lost any credibility it may have had. As such, I wonder why we are even wasting time looking at what they are doing. No matter what they do it’s going to be suspect, and will not achieve the goals the legislature had in mind when they created the commission. Those goals were admirable ones, but like many good ideas it has gone terribly to astray. The best thing the legislature can do now is scuttle the current commission and go back to the drawing board
I doubt they will do that. Instead we will all watch what happens next week with the same morbid curiosity that draws people to slow down when they pass an accident. I admit, I’ll probably be one of those.
My practice is exclusively devoted to criminal defense, in both State and federal courts. I handle case at all stages of the criminal process, from investigation, through pre-trial, trial, appeals and post-conviction proceedings. I practice primarily in McLennan and Hill...More...
