Criminal Defense of Immigrants
§ 11.50 iv. The Evidence of Guilt is Weak, or the Client Has a Plausible Claim of (at Least Partial) Innocence
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Any plausible claim of innocence or weakness in the prosecution evidence forms a powerful factor that increases the likelihood of obtaining post-conviction relief. For example, if the client possessed a small quantity of drugs, yet was convicted of possession for sale, the case may have been triable on the defense that s/he possessed the drugs for personal use rather than with the intent to distribute. In one such case, the client was charged with attempted murder and pleaded to assault with a firearm, yet had merely shot the gun into the air. He was in fact innocent of both charges. Any plausible claim of innocence lends substance to the client’s claim that if s/he had been correctly informed about the immigration consequences of the plea, s/he would have chosen to take the case to trial where s/he would have had some chance of winning.
Even if the claim of innocence is only partial, it still bears significance. In plea bargaining, the partial innocence may well have been worth enough to motivate the prosecutor to alter the charge to an immigration-harmless offense with the same sentence.