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The Future of Deportation, Ineffective Assistance, and Plea Deals to Be Reviewed by the United States Supreme Court

Dec 22, 2016

In the United States, we have structured our criminal justice system to be adversarial, meaning when a criminal defendant is brought in for trial, it is this defendant against the government. In a trial in which the defendant violated state law, the adversary would be the state, whereas if the defendant violated federal law, the adversary would be the United States federal government. The profession of an attorney is to ensure fairness in the adversarial system, in particular to protect criminal defendants who may not be familiar with the system, who are not as educated to advocate for themselves, or who do not have the resources to adequately defend themselves against the conviction.

If you or a loved one have been arrested for committing a felony, you have the constitutional right to have access to an experienced criminal defense attorney during the criminal proceedings. Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

The Adversarial System

To balance the system, attorneys are available to criminal defendants to ensure that there is someone who understands the system, who knows the legal precedence, and can tell a criminal defendant’s story in a way that a judge and/or jury can understand the mindset of the defendant who may have in fact committed a crime, but may have done so due to external and internal influences.

The Sixth Amendment: Right to an Attorney and Effective Assistance

The Sixth Amendment of the United States Constitution guarantees that criminal defendants not only have an attorney there to represent them in the proceedings, but have an attorney who only has the defendant’s interest in mind, and who provides effective assistance. A criminal defendant who has been convicted of a felony offense may be able to get a new attorney and a new trial if he or she is able to show that the attorney did not provide effective assistance.

The Effective Assistance Two Prong Test

The United States Supreme Court requires that to demonstrate ineffective assistance by an attorney, a defendant has to sufficiently prove two elements: first, that the attorney’s representation rose to the threshold of being ineffective, inadequate, and deficient, and secondly, that this ineffective representation prejudiced the case and but for the prejudice, a different outcome might have emerged.

U.S. Supreme Court Rules Bad Legal Advice About Deportation is Ineffective Assistance

In a 2010 Supreme Court decision, the court ruled that an attorney who does not advise a client that is non-United States citizen of the possibility that he or she could be deported for a guilty plea or a guilty outcome in a criminal proceeding would rise to the level of ineffective assistance. The court ruled that bad legal advice regarding the consequence of a guilty plea was ineffective assistance under the Sixth Amendment and the case was remanded to a lower court to determine whether or not that prejudiced the case. The 2010 case dealt with a legal permanent resident, who was originally from Honduras but was not a citizen, who was told by his attorney that filing a guilty plea would not affect his immigration status. After pleading guilty, deportation was a ready result.

The U.S. Supreme Court to Review Whether a Defendant Can Have the Chance to Prove Prejudice Resulting from Ineffective Assistance

The Supreme Court granted review on a case involving an immigrant from South Korea who moved to the United States at the age of 13. He was arrested for possession with intent to distribute the drug ecstasy. His attorney falsely told the defendant that he would not be subject to deportation after serving the lighter sentence associated with the guilty plea. The 2010 Supreme Court case dealt with whether or not bad legal advice about deportation would rise to the level of ineffective assistance. This case focuses on the second element, the extent to which a defendant would be able to demonstrate prejudice resulting from the ineffective assistance.

The Circuit Courts’ Split to be Finally Decided

The Circuit Courts are currently split on whether a defendant facing strong evidence of guilt could be able to show prejudice. Eleventh Circuit, which governs Florida’s caselaw, entitles the defendant to relief. The split in Circuit Courts over this issue provide that some defendants are mandatorily and permanently deported, even where ineffective assistance is proven. The other camp, which includes Florida’s Eleventh Circuit, provides the opportunity to negotiate a new plea or to permit the case to go to trial.

Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

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