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Right v. Just

Statue.jpgThe Supreme Court's 2009 decision in Padilla v. Kentucky is interesting for a couple of reasons.  First, it breaks new ground on the law on effective assistance of counsel.  Padilla was 52, and had moved to the US in the 1960's, even serving in the Army in Vietnam, but had never become a citizen.  He entered a plea to a drug offense in 2002, his lawyer telling him not to worry about his immigration status because he'd been in the country so long.  BZZZT!!  Wrong answer.  The lower courts brushed aside Padilla's claim that his lawyer had been ineffective, holding that this didn't apply to advice on collateral matters.  The Supreme Court held to the contrary.

But the opinion's also a good read on the history of immigration in this country.  You know that "give me your huddled masses" thing?  That was for real for most of the first century of this country's existence:  you showed up, you were allowed in.  It wasn't until 1875 that Congress barred "prostitutes and convicts," and not until 1917 that it got around to passing a law which allowed deportation of non-citizens based on acts committed in this country.

While certain crimes could get you deported, there was a safety valve:  a court, either state or federal, could make a JRAD -- judicial recommendation against deportation -- which was binding, and the Attorney General also had discretion to issue a waiver of deportation, and did so in over 10,000 cases between 1989 and 1995.  All that came to an end in the last quarter century:  Congress passed a law eliminating the JRAD in 1990, and another removing the AG's power to grant a waiver six years later.  The range of deportable offenses, which had previously been mostly limited to murder, drug trafficking, and gun crimes, was also greatly expanded during this time:  it now reaches any "crime of violence," which basically includes any offense in which force is used.  And "deportable" means just that in most cases:  if you qualify for deportation, you're going.

And so we come to Issa Kona.  Back in 2006, he went to Home Depot, and it ended badly:  he swiped a $79.93 battery charger, some undercover security guards followed him out of the store and confronted him over it, and a tussle ensued, with the upshot being that Kona was charged with robbery, or what we call in the trade, "aggravated shoplifting."

Kona wasn't a citizen, and his lawyer, being a sharp guy, checked with immigration attorneys who told him that a conviction of robbery, or even attempted robbery, would result in mandatory deportation.  So he worked out a deal:  Kona would enter the diversion program.   That's basically like being on probation for a year, except if you successfully complete it, the charges are dropped.  So that's what happened:  Kona entered the program, did what he was supposed to do, and a year later the case was dismissed.  In fact, the records of the case, even the arrest, were sealed.  Problem solved.

Not so much.  I dislike doing diversions for my clients, because there's a lot of paperwork involved.  (It is indeed All About Me.)  The diversion packet is about 20 pages or so, and you've got to fill out information about where the client's lived, his mother and father, his bank accounts, his military service history, and so on.  One of the forms is a statement from the offender admitting guilt.  You used to be able to get away with bullshit like "I accept responsibility for my actions," but no more:  now, the statement has to admit all the elements of the offense.

And that's what nailed Kona.  See, it's not just a conviction which gets the attention of the INS boys:  a "conviction" includes an admission of guilt made in connection with a diversion program.

So Kona filed a motion to vacate his plea.  Back in 1989, to ensure that non-citizen defendants were aware of the consequences of a conviction on their resident statute -- consequences that could be far more severe than even prison time -- the Ohio legislature passed RC 2943.031, which requires that a judge specifically advise a defendant that the conviction "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."  That's construed liberally.  In most cases, a defendant moving to withdraw a plea after sentencing has to show a "manifest injustice"; for the most part, here he only has to show that the warning wasn't given.  And nothing in the packet included that warning.

The problem was that Kona was moving to withdraw a plea he'd never made:  the trial judge decided that the statement in the diversion packet wasn't a plea, so he wasn't entitled to the warnings, even though the statement was the equivalent of a plea which would get him deported.  The 8th District affirmed.

The Columbus Seven agreed to hear the case, and it'll be interesting to see what happens.  The case presents the classic example of the difference between what's legally right and what's just.  The county prosecutor's office defends what happened to Kona, but the best indication of its discomfiture with the result is that it's changed the program to prevent a recurrence:  the diversion packet now includes the warning mandated by 2943.031, and the defendant now enters a plea where he's advised of those rights by the judge.


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