My egregious faux pas last week - in which I goofed on the effects of a no-contest plea - is still a hot topic; even our soon-to-be Supreme Leader chimed in with a 4:00 AM tweet, "@russbensing screws up again. Sad! @realDonaldTrump will make #thebriefcase great again!" Let's hope he saves me further embarrassment by not mentioning this in his inaugural speech, instead continuing to lambaste Rep. John Lewis, the civil rights icon whose participation in the March on Selma resulted in a skull fracture from a police beating, as "all talk and no action."
SCOTUS granted review in 13 new cases, including two of a criminal nature. One is a habeas claim, and the convoluted nature of those proceedings is best demonstrated by the issue:
Whether the Supreme Court's decisions holding that an ineffective attorney in state habeas proceedings can constitute cause to overcome a substantial claim, which would otherwise be defaulted, that the inmate's state trial attorney was ineffective also applies to substantial but defaulted claims that an inmate's attorney during his state appeals was ineffective.
The Court did hold oral argument in one criminal case last week, Nelson v. Colorado. After his conviction was reversed, Nelson tried to get back the money he'd paid in costs and fines, only to be told that his exclusive remedy was the state's Exoneration Act, which required him to prove his actual innocence of the crime. None of the justices seemed to buy into the State's rationale, the Chief finally correcting the state's attorney's constant reference to Nelson's "compensation," noting that "you keep talking about compensation. The issue is restitution." Expect a reversal.
A friend of mine has a sister who works for the Illinois attorney disciplinary board. She says that when they want to look at the harshest sanctions, they check Ohio cases.
Further proof of that was on display in the oral argument on Shamir Coll's application to take the bar. The admissions form requires you to list traffic violations, and, for reasons not clear from the argument, Coll refused to provide any information about violations he'd had more three years ago. Coll represented himself, and although the video doesn't lend much support to the idea that his calling is appellate law, he did manage to point out that in previous cases where lawyers were denied permission to take the bar, it was because they didn't answer questions about drug abuse and other transgressions a bit more serious than raising the alert of Officer Barney Fife of the local police department, who tries to make his quota by hanging out at an intersection and stopping people who turn right on red a nanosecond after the right turn arrow goes off.
Not that something like that ever happened to me.
At any rate, French took pains to elicit from Coll that he had in fact submitted an application with answers to all the questions, so nothing more than a public flogging seems the likely result.
The 5th District's decision in State v. Tapia-Cortes provides both an excellent analysis of the immigration consequences in criminal law, and a window into the workings of the low levels of the criminal justice system.
Mateo Tapia-Cortes came here in 2008, and has been a legal resident since 2013. On October 14, 2015, he got into a tussle with his wife, and the next day was brought in from the jail to the municipal court for a plea hearing on a domestic violence charge. He met his court-appointed attorney for a few minutes, who told him that he'd get out that day if he pled. He signed one form pleading guilty, and another containing the statutory advisement that his plea could have immigration consequences. And that was that.
Tapia-Cotes was not released that day; he was held by the immigration people. He filed a motion to vacate his plea seven weeks later, but the judge denied it.
The 5th District doesn't have to do a lot of heavy of heavy lifting with this one. The trial judge denied the motion because he determined that the statutory warning solved any problems. While the courts were once willing to buy into that, as I've argued, the judge's 5th Amendment obligation to make sure the plea is knowing, voluntary, and intelligent doesn't cure the lawyer's 6th Amendment obligation to properly advise his client.
And here, the lawyer didn't. Under Padilla v. Kentucky, if the immigration consequences are unclear, the attorney need only advise a client that the charges may carry a risk of adverse immigration consequences, but it they're clear, the lawyer has to advise the client of that. Here, immigration law clearly requires deportation for a conviction of domestic violence, so the panel finds the lawyer's performance was deficient.
The next question is prejudice: the defendant has to show that if he'd been given the correct advice, he would have chosen to go to trial. The court notes that the defense attorney, who testified at the hearing, "provided little insight as to his understanding of the factual background of the offense or his awareness of any potential defenses"; there's no indication that he "ever communicated with appellant's wife concerning her account of the incident and her willingness to cooperate in the prosecution." Coupled with the fact that Tapia-Cotes didn't receive any benefit from the plea -- he pled guilty to the charge, and wasn't released as promised -- this is sufficient to show prejudice.
But let's take another look at this. Forget the immigration consequences. How does a lawyer meet with his client for a few minutes and advise him to plead guilty to a domestic violence charge, which in itself has collateral consequences (a second one is a felony)?
Municipal courts tend to take on the aspects of an assembly line: dozens of defendants can appear in a single seating on cases as varied as a speeding ticket or a domestic violence case, which creates an atmosphere where expediency is the prime, if not sole, virtue. The court in Padilla pointed out that oftentimes the immigration consequences of a conviction can outweigh the direct consequences. That's especially true with misdemeanor charges. Lawyers need to remember that.