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Sunday, November 22, 2009

Courts - "When, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty"

Tony Mauro of The National Law Journal has this new article, dated Nov. 23rd and headed "Do Defendants Get Enough Warning About a Guilty Plea's Consequences?" Some quotes:

The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon. But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes. The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting. Why? Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky. His lawyer told him the plea would not get him deported, because he had lived in the United States for decades. The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.

Depending on the offense, a guilty plea or verdict can, in addition to the penalty for the crime, also make it impossible for a defendant to vote, live in public housing, become a cosmetologist, carry a gun, drive a car or receive a growing array of government benefits. If you plead guilty to public urination or if, as a 19-year-old boy, you had a relationship with a 16-year-old girl, you can in some states be marked as a sex offender for life.

The laws of some states as well as the American Bar Association's criminal justice standards call for lawyers or others to inform defendants accurately of these consequences. It often does not happen -- especially, as Padilla learned, in the area of immigration law, which may be unfamiliar territory to a harried criminal defense lawyer. "Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile," said Benita Jain, co-director of the Immigrant Defense Project.

There is much more to this article.

Posted by Marcia Oddi on November 22, 2009 09:53 AM
Posted to Courts in general