Criminal Defense of Immigrants
§ 11.26 A. Finding Post-Conviction Counsel
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Different attorneys with different skills may best be able to handle these different stages. An attorney experienced in post‑conviction relief, or better yet, the immigration aspects of post-conviction relief, is often best equipped to vacate or reduce a sentence. Once that has been achieved, standard criminal defense tactics will often work best to minimize the adverse immigration consequences of any new sentence. A public defender or other criminal defense attorney can help the client here, as long as s/he has a reliable source of immigration advice on what specific objectives to seek in order to avoid removal and the other adverse immigration consequences that could result from any new sentence. Immigration counsel, of course, must then defend the client against the potential immigration consequences of the new disposition.
Post-conviction work is very complicated, and a specialty of its own. Many criminal defense attorneys may never handle post-conviction writs, or only rarely. When seeking post-conviction counsel, it is necessary to inquire specifically into potential counsel’s experience in this area.
Post-conviction cases involve simultaneous litigation of a number of different versions of a case:
(1) the original criminal case the way it was in fact litigated;
(2) the original criminal case the way it should have been litigated;
(3) the new post-conviction case being filed in an effort to vacate the conviction;
(4) the even newer re-prosecution if the old case is reopened; and sometimes even
(5) post-conviction relief from the effects of the new resolution of the criminal case, for example, an expungement of the new conviction under California Penal Code § 1203.4(a).
It is important to balance expertise in this specialty against the advantages of local counsel, who:
· knows the personalities in the courthouse on a daily basis and enjoys their respect;
· knows local practice; and
· has offices across the street from the courthouse.
And on the other hand, an expert:
· knows the arsenal of various forms of post-conviction relief available;
· can make one up to fit the case when necessary; and
· either knows or is willing to learn the necessary immigration law.
Possible sources of experienced post-conviction counsel include:
(1) Members of the National Association of Criminal Defense Lawyers (NACDL), a national organization analogous to the American Immigration Lawyers Association. Unfortunately, the NACDL does not make its membership directory available to nonmembers. It is therefore advisable to get to know a member who can consult his or her directory and offer referrals. The NACDL also provides a hotline panel of legal experts who can be consulted on topics such as effective assistance of counsel, immigration, motions to set aside verdict/2255, and withdrawal of guilty pleas. The NACDL may refer you to a member in your area. Call the NACDL at (202) 872-8688.
(2) The local death penalty resource center has staff attorneys with a great deal of experience in post-conviction litigation of capital cases. They may be able to suggest ex-staff attorneys now in private practice who know local post-conviction litigation in depth. The techniques appropriate in a capital case can be used — in full form or scaled-down versions — in immigration-related cases that, after all, involve the threat of a life sentence to exile.
(3) The local National Lawyers Guild Office can offer referrals.
(4) Lawyers’ directories may also be consulted. Martindale-Hubbell is on Lexis and can be searched online.
(5) Look for names that come up repeatedly when you consult public defenders, reputable criminal defense lawyers, judges, local bar associations, and local criminal defense lawyer associations, asking for someone with post-conviction expertise.
Don’t assume someone is good. Check them out. Obtain several references and interview them.
Conduct an interview, as if hiring an employee. Consider asking questions such as the following:
(1) Putting yourself aside for a moment, could you give me the names of three attorneys in this area who specialize in post-conviction relief in criminal cases?
(2) How many post-conviction attacks have you filed in the last year? Motions to withdraw guilty pleas? Habeas corpus? Coram Nobis? Federal attacks: 2255 motions?
(3) What books do you have in your library concerning post-conviction relief? (Look for state treatises concerning post-conviction relief, and other treatises such as J. Liebman and R. Hertz, Federal Habeas Corpus Practice and Procedure (2 volumes); Larry W. Yackle, Postconviction Remedies; D. Wilkes, State and Federal Post-Conviction Remedies (2006); Ira P. Robbins, Habeas Corpus Checklists — annually published. A call to your local law library reference librarian (or one at a local law school) can help you form a list of comparable publications related to state post-conviction relief.)
(4) How much immigration-related post-conviction work have you done, and who were the immigration lawyers on those cases. (You can then call the immigration lawyers mentioned as references to check the lawyer out.)
POST CON RELIEF - FINDING LOCAL POST-CONVICTION COUNSEL
Immigration counsel can encounter criminal convictions from across the country that trigger adverse consequences for their clients. Once the post-conviction strategy is set, it is important to find local counsel who is the best possible person to persuade the prosecutor and court to agree to grant post-conviction relief. A thorough way to do this is to make a sufficient number of phone calls asking a battery of qualifying questions, and ultimately the same name will be recommended again and again, by more than one person, giving great assurance this is the best person for the job. One time, we retained a former law partner of the judge who would hear the case (and who was still on good terms with him). We also want to make sure the person meets other qualifications, such as being academically sharp, extremely experienced and well respected by the prosecutor's office, experienced in obtaining PCR ideally for immigration reasons, etc.