Posted on May 18, 2011 by Walter Reaves

Has the CCA declared Padilla retroactive?

Although they never even mentioned Padilla a two-page opinion from the Court of Criminal Appeals last week raises the question of whether the court considers it to be retroactive The case is Ex parte Herrera. As with most written opinions there is not much discussion of the facts or the law. That is because generally the court is only addressing whether the trial court recommendation should be approved. In Herrera the court held it should.

Mr. Herrera's  pled guilty and alleged his plea was involuntary because no one - including the court - advised him of the immigration consequences.He had made the same claim in a prior writ, which had been denied. In the interim he had been deported, and when he returned he was caught and prosecuted in federal court for illegal reentry. The court recognized that a prior writ had been filed,which normally would prevent someone from filing a second writ – especially on the same groundsThe court simply stated that when the first writ was filed he was only subject to deportation,while when the second writ was filed he had already been deported.

The confusion engendered by the decision requires an understanding of habeas law. Texas law requires a court to admonish all defendants that there are immigration consequences from a plea. The failure to give those admonishments may or may not be significant. In the past the court has held that in order to obtain relief a defendant must show that he was not a legal resident. That would be enough on direct appeal. In habeas however you must go further and establish that you would not have pled guilty had you known you could be deported. The fact that you have been deported is not legally significant; The focus is on the voluntariness of the plea, and not on whether you are actually harmed Therefore, if the only change is that you have actually been deported, that should not have been an issue.

Prior to Padilla the only claim a defendant had was that the trial court failed to comply with the statutory admonishments The court – as other courts– rejected the argument that a lawyer had an obligation to advise a client about the immigration consequences of the plea. Obviously, Padilla changed that. Therefore, the claim would now be one of ineffective assistance, which is a constitutional claim as opposed to a statutory claim.

Although the court never said so, it is difficult to understand how it could grant relief on a subsequent writ if it did not rely on the holding in Padilla. That issue has yet to be completely settled (Mark Bennett has discussed a Houston case going the other way) and requires a discussion of retroactivity which is beyond the scope of this post. If you're making that claim though, this decision is certainly one you should rely on.

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Posted on January 7, 2009 by Walter Reaves

What does "not guilty" really mean?

Ask anyone in the criminal justice system what a plea of "not guilty" means, and they will probably tell you it means I am putting the government to it's proof. The first thing that happens after charges if filed is that  a defendant is arraigned, and asked to enter a plea. You don't expect anyone to enter a guilty plea at that point. It appears though that some people view a not guilty plea as a denial of guilt, and question the ethics of entering that plea when you are really guilty.

Scott Greenfield at Simple Justice provided his usual keen insight into the ongoing discussion about the "two most loaded words in the courtroom". He was responding in part to a post by a former defense lawyer turned prosecutor who argued that a defendant who actually committed the offense acts immorally by entering a not guilty plea. I can't add to Scott's discussion of the futility in trying to impose absolute moral guidelines onto an issue that is not absolute. I do want to pose some of my own questions though.

If we are to impose absolute morality into a criminal case, shouldn't it apply to both sides. Prosecutors know by now the problems with eyewitness identifications. At best, the far from accurate; at worst, they are no more reliable than chance. Does a prosecutor have a moral obligation to bring that information to a jury; does he violate some type of moral code when he argues that a defendant is guilty, where the only evidence is an eyewitness? What about where there are reasons to question the accuracy of the identification?

One of the legal obligations prosecutors have is to disclose exculpatory evidence. What is exculpatory is often in the eye of the beholder. Most prosecutors think there is nothing exculpatory in their file. In fact, at least under the legal definition, there is probably a lot; basically anything which points to someone else, or impeaches a witness's credibility can be exculpatory. Does a prosecutor lie when he says there is nothing exculpatory in the file?

Our system is an adversarial one. Many prosecutors take that to an extreme, and believe it is not their job to determine guilt or innocence, but it is up to the court or the jury. If they have doubts about a defendant's guilt, whether strong or not, do they act immorally when arguing for a conviction?

As Scott points out, there are few absolutes in the criminal justice. A person may commit an act, that may actually be less serious than what he is charged with. Does he have to admit to committing the act, and leave it up to the judge to decide what the appropriate offense is?

This is not something distinctive about the criminal justice system. The same process exists in the civil system. If you are sued, something like a general denial is entered. Is that immoral, if you actually did what you are being sued for?

Let's also look at the flip side of this. If a juror finds you not guilty, most people recognize that means the state didn't meet its burden of proof. However, under the morality approach, does it actually mean you are innocent.

As I stated before, our justice system is an adversarial one. It requires advocates on both sides. The day the defense lawyer becomes a representative of the prosecutor is the day our freedoms are lost. There are other systems that don't involve criminal defense lawyers - however, those trying to impose morality in this decision would never agree to live under those systems.

Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.

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