Criminal Defense of Immigrants


§ 3.28 c. Prior Convictions and Their Validity

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The second area in which the client’s information is indispensable is how the client’s conviction came about.  In this part of the interview, counsel will be looking for errors in the process that can be used to try to vacate the conviction.


                It is wise for counsel to review the grounds for setting aside convictions based on guilty pleas in order to determine whether they are present in each case.[111]


                The client’s memory must be consulted concerning the content of the attorney‑client conversations in which the immigration consequences of a plea or conviction were — or were not — discussed.  In particular, counsel should probe the following areas: 


·         Was the client represented by counsel or did s/he request self-representation?  If the client appeared pro se, what did the court tell him or her during the proceedings concerning waiver of the right to counsel?  In particular, what exactly did the court say about the dangers and disadvantages of self-representation?


·         Did defense counsel render ineffective assistance, i.e., fail to take any action requested by the client in the defense of the case, or perform badly, fail to visit the client, fail to investigate or call witnesses or perform legal research? 


·         Did anything unusual occur with respect to defense counsel, during or close in time to the representation in question, such as suspension from the practice of law, disbarment, loss of job with a criminal defense agency, going to work for the prosecution, writing a book, running for office, a romantic relationship with anyone else in the criminal justice system, or the like?


·         What exactly was the client told in the lawyer-client interview that preceded the entry of the plea?  Was the client aware of the nature of the charge(s), including the exact elements of each and the potential defenses?  Was the client made aware of certain constitutional rights prior to entry of the plea?  What were the exact elements of any bargain reached between the defense and the prosecution?  Did the prosecution faithfully adhere to each part of the plea agreement?


·         With respect to the immigration consequences of the plea, what exactly did counsel say concerning the potential immigration consequences of the case and the chances that each would in fact occur?  Did the defense attorney explain specifically what the adverse immigration consequences would be before the guilty plea was entered?  (A statement of what might happen is often not enough.)[112]


·         Did anyone threaten the defendant, directly or indirectly, to induce his or her cooperation with the plea process?  Did the police threaten to arrest the spouse, and throw the children into foster custody, if the client did not cooperate with their search, interrogation, or desire for a plea?  Did a codefendant insist that the defendant accept his or her part of a “package deal” so that the codefendant could avoid something worse or enjoy a sweetheart disposition?


·         Did the client suffer from any mental disability during the case?  What medications, if any, was the client taking?  What doctors treated the defendant?  Was the client’s memory sufficient to enable defense counsel to obtain an accurate understanding of the facts of the offense?


                If an interpreter was used, either in private to translate attorney‑client conversations, or in court to translate the court proceedings, the client’s understanding of what the interpreter said the attorney said is the only initial source of that information.  It is critical to probe the precise nature of any interpreter’s abilities, so as to detect whether client and interpreter in fact spoke the same dialect.  It is important to discover the exact choreography of client(s), attorney(s), and interpreter(s) in and out of court.  Did the client and lawyer share one or more languages?  Did they enjoy the services of an interpreter in the cell or corridor where the attorney-client conversations occurred, or merely in court?  When in court, was the client the only person in need of interpretation, or were codefendant(s) and witnesses also in need of translation services?  Did each lawyer-client pair, with a need for translation services, have a dedicated interpreter, or where they forced to share one interpreter with the court (to translate witness testimony) or other lawyer-client pairs with whom the possibility of a conflict of interest existed?  See Chapter 4, infra.


[111] See § 11.70, infra; N. Tooby, Post-Conviction Relief for Immigrants, Chapter 6 (2004).

[112] An example of a statement of what “might” happen is required by state statutes such as California Penal Code § 1016.5 to be delivered by the court as an admonishment to the defendant prior to the acceptance of a plea of guilty or no contest: that the conviction “may” result in deportation, exclusion, or denial of naturalization.  This “may or may not” advice is not sufficient to discharge the obligation of the client’s own attorney to investigate and advise the client on the exact immigration consequences the client will suffer as a result of the plea.  See § 2.38, supra.  It is quite common for the criminal defense attorney to commit Soriano error by advising the client only in the language of § 1016.5 of the consequences that may or may not occur.  People v. Soriano, 194 Cal.App.3d 1470 (1987).  Affirmative misadvice concerning the actual immigration consequences can also constitute ineffective assistance of counsel, requiring reversal if prejudice is shown.  In re Resendiz, 25 Cal.4th 230 (2001).  See § 2.38, supra.