Deportation or Jail? The Padilla Case.
Posted By Cliff Tuttle | April 6, 2010
The US Supreme Court in Padilla v. Kentucky held recently that a legal immigrant was given ineffective assistance of counsel when advised to plead guilty to a serious criminal charge because it would not affect his status as a legal alien of 40 years duration. The truth was, as Justice Stevens’ opinion noted, that under current law, deportation was virtually automatic with a guilty plea to a serious charge, regardless of how long the alien had resided in the country.
The allegation of ineffective assistance of counsel is a primary avenue to a new trial following guilty plea or a conviction. A waiver of trial by pleading guilty must be knowing and courts frequently make queries on the record to establish that a guilty plea was given with full knowledge. Advice as to collateral matters, such as deportation, has not ordinarily been considered by courts in determining effective assistance. But now it must.
CLT
FOOTNOTE: This is not the Padilla who was involved in Padilla v. Rumsfeld, a well-known 2003 Supreme Court Case involving terrorism.