Tuesday, November 24, 2009

Defendants Get Enough Warning About a Guilty Plea's Consequences? 6th A. requires defense lawyers to advise on Immigration Consequences?

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

"At oral argument in Padilla v. Commonwealth of Kentucky (08-651), the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys. Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards. Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns. Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas. However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea."

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