Criminal Defense of Immigrants

(A)  General Duty to Investigate.  It is axiomatic that defense counsel should conduct appropriate investigation of the criminal case as a whole prior to engaging in plea negotiations.  “Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has [first] been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.”[4]  Professor Herman has given an extensive checklist of information to obtain prior to plea bargaining.[5]  In addition to the normal investigation that must be conducted in every criminal case,[6] counsel should do the special investigation necessary in the case of a noncitizen defendant as outlined in Chapter 3, supra. 

                Counsel’s general duties concerning plea-bargaining are quite extensive.[7]  Defense counsel’s failure to try to negotiate an acceptable disposition in the case can constitute ineffective assistance, if prejudice is shown.[8] 

[4] ABA Standards for Criminal Justice on the Defense Function, Standard 4-6.1, p. 203 (1993). 

[5] G. Herman, Plea Bargaining § 5:02, pp. 48-50 (2d ed. 2004).

[6] See A. Amsterdam, I Trial Manual for the Defense of Criminal Cases [106], et seq. (1988).

[7] See G. Herman, Plea Bargaining § 3:03, p. 19 (2d ed. 2004); Annot., Adequacy of Counsel’s Representation of Criminal Client Regarding Plea Bargaining, 8 ALR 4th 660; Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L. J. 1179, 1310 (1975).

[8] See Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Cole v. Slayton, 378 F. Supp. 364 (W.D. Va. 1974).