Criminal Defense of Immigrants
§ 3.40 B. Obtaining Court Files and Transcripts
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The most authoritative records of a conviction are those created by the court in which the conviction occurred. For each conviction of interest, it is essential to determine the jurisdiction, state, and city in which the court that rendered the conviction is located.
The client’s information, together with the criminal histories, is usually sufficient to identify the court and city in which each conviction occurred. The court’s records of the conviction may then be obtained from the clerk’s office. Generally, felony conviction records are obtained from the state trial courts,[122] and misdemeanor and traffic conviction records from municipal or justice courts. In this era of “court consolidation,” when some states are elevating all courts to the same level, and giving them the same name, it is still useful to think of the various courts under their former names, since the former brick-and-board courthouses still exist, and may tend still to have the same file archives now as they had before consolidation.
In state courts, the most authoritative evidence of the existence and nature of a criminal conviction consists of: (a) a certified copy of the record of the judgment and clerk’s minutes from the sentence hearing; and (b) the sentencing judge’s oral pronouncement of judgment, as reflected in the reporter’s transcript of the sentencing hearing.
In general, a reporter’s transcript prevails over a clerk’s transcript when the two disagree.[123]
The judgment and clerk’s minutes may be obtained from the clerk’s office. In some courts, the reporter’s transcript of the plea and/or sentencing will also be in the court file. If the reporter’s transcript has not yet been prepared, it will be necessary to identify the specific court reporter who attended the hearing by consulting the clerk’s minutes of the hearing, and to order the transcript directly from the court reporter.
PRACTICE POINTER: Request the reporter’s transcript of the plea or sentence immediately (if they have not previously been transcribed) because it sometimes takes court reporters a considerable amount of time to locate their notes and transcribe them. Moreover, if the certified shorthand reporter (CSR) cannot produce a transcript, it is important to know that as soon as possible in order to evaluate what to do about it.[124] In immigration proceedings, lack of records may benefit the party who does not have the burden of proof. See § 15.26, infra.
It is important to obtain the original court records in order to verify the existence and nature of the conviction. Criminal history records from the FBI, the state criminal history agencies, or state departments of motor vehicles are often inaccurate. For example, an assault conviction may be listed on a “rap sheet” as a felony, when it is in fact a misdemeanor. Many arrest records are carried on criminal history reports when the arrests did not result in any conviction. It is necessary to consult additional court records in order to investigate the validity of a conviction, and it makes sense to obtain all necessary records at the same time.
If the strategy is to attack a prior conviction on the basis of a defect in the plea, it is necessary to obtain the following certified[125] documents: (a) the clerk’s docket or clerk’s minutes from the hearing on the day the plea of guilty or no contest (nolo contendere) was entered; (b) the waiver of rights form, if any, that was initialed and signed by the defendant when the plea was entered; (c) the reporter’s transcript of the plea of guilty;[126] and (d) the complaint (in misdemeanor cases or felony cases in which the plea was entered in municipal or justice court) or information or indictment (in felony cases in which the plea was entered in the trial court) containing the charges against the defendant.
In addition, in order to investigate the possibility of ineffective assistance of counsel (other than for failure to inform the defendant of immigration consequences), or of a successful defense after vacating a conviction, it is wise to examine the entire court file, and especially the police reports concerning the commission of the offense.
[122] Often, a client pleads guilty to a felony in lower court, and is sentenced in a higher or trial court. It will be necessary to obtain records relating to the entry of the plea from the lower court, and additional records relating to the conviction and sentence from the trial court.
[123] In re Moss, 175 Cal.App.3d 913, 221 Cal.Rptr. 645 (1985). See also In re Candelario, 3 Cal.3d 702, 91 Cal.Rptr. 497 (1970) (judicial error cannot be corrected by amendment of document).
[124] In some states, it is incumbent on the court to keep records of certain matters, and counsel may win a motion to vacate if the court has lost the records. See, e.g., California Penal Code § 1016.5. On the other hand, if a challenge is mounted to a conviction based on certain records, it is counsel’s responsibility to provide them if they exist.
[125] Some criminal courts will rely on uncertified copies, or take judicial notice of them under statutes such as California Evidence Code § 452(d). Immigration courts insist on certified copies.
[126] Sometimes, there is no reporter’s transcript, possibly because no record was made of what was said when the plea was entered. It is necessary to obtain proof that no transcript exists (or it has been destroyed); otherwise, it is defendant’s burden to produce it. People v. Vallejo, 1 Cal.App.4th 760, 763-764 (1991). If the lack of a transcript is because the proceeding, were tape recorded, it is necessary to obtain a copy of the tape, transcribe it, and produce it. Defendant has the burden of going forward with evidence that s/he did not waive the required rights and/or was not advised of the consequences of the plea when bringing a post-conviction attack in criminal court. People v. Coffey, 67 Cal.2d 204, 215-218 (1967); People v. Sumstine, 36 Cal.3d 909 (1984).
