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Prosecutors balking at proposed new ethical duty

VSBA Virginia State Bar panel is still pondering how best to prevent criminal defendants from unwittingly creating immigration problems for themselves when they accept plea offers in misdemeanor cases.

A proposal to recognize an ethical duty for prosecutors to guard against ill-advised guilty pleas drew fire from Virginia commonwealth’s attorneys, who say they have no way to discern or address immigration issues.

Meanwhile, immigrants’ rights advocates say the only way to avoid unforeseen deportation or other immigration consequences is to appoint lawyers for all criminal defendants believed to be born outside the U.S., regardless of whether they face the threat of jail.

Such a provision would come with a major price tag, although no one offered any cost estimates.

The controversy was fueled by the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky that faulty legal advice on immigration consequences violated a defendant’s constitutional right to counsel. The current debate was sparked by a proposed legal ethics opinion offered by the VSB.

Proposed LEO 1876 – as drafted by the VSB’s Standing Committee on Legal Ethics – would bar Virginia prosecutors from making plea offers to unrepresented noncitizen defendants without mentioning the possibility of immigration consequences.

The proposal emerged from the efforts of immigrants’ rights advocates and criminal defense lawyers to address what they say is an abuse of the right established in Padilla. They claimed immigrants were accepting plea deals for minor crimes without any warning that those deals could get them deported.

Civil rights lawyer Victor M. Glasberg of Alexandria persuaded officials at the Supreme Court of Virginia to include a warning on a court form about possible immigration consequences. He also urged judges not to rush suspected immigrants through the criminal process without considering the risk of collateral consequences.

Glasberg then suggested the legal ethics committee provide guidance for prosecutors.

The result was the proposed declaration that a prosecutor would be taking advantage of an unwitting and unrepresented noncitizen defendant if the prosecutor offered a plea deal without mentioning the possibility of immigration consequences.

The proposal is based on a flawed understanding of Padilla, said Nancy G. Parr. The Chesapeake commonwealth’s attorney is president of the Virginia Association of Commonwealth’s Attorneys.

“The Draft Opinion improperly blurs a defense attorney’s Sixth Amendment duty to properly advise his client … with a non-existent due process right to be advised of the immigration consequences of the guilty plea,” Parr wrote.

A Sixth Amendment right to effective defense counsel “does not equate to the creation of a duty on behalf of the trial court or a prosecutor to advise a noncitizen of immigration consequences or the right to immigration counsel,” Parr said.

State prosecutors have no involvement with possible immigration consequences, she added.

“The federal immigration laws regarding the deportation of noncitizens are not within our jurisdiction or our control,” Parr wrote.

Realistically, prosecutors would be poor substitutes for knowledgeable defense attorneys, said Colonial Heights Commonwealth’s Attorney William B. Bray.

“The average prosecutor will not want to offer legal advice of any kind to an unrepresented defendant. And we have little training in immigration issues,” Bray wrote to the VSB.

Discerning defendants who have immigration exposure is impossible, another prosecutor said.

“We don’t have any way to know what the status is if they don’t have a detainer on them,” said Prince William County Commonwealth’s Attorney Paul B. Ebert in an interview.

If the judge knows a defendant is a noncitizen, the judge customarily appoints counsel, Ebert said.

“The ones you don’t know about – those are the ones that cause you trouble,” he said.

Acknowledging prosecutors’ concerns, Glasberg took another tack.

He recommended all uncounseled criminal defendants be given “standard, clear, prominent, court-approved written” statements in numerous languages warning of possible immigration consequences. The notices could be audio recordings for illiterate defendants.

“Directing a defendant to read a piece of paper or listen to a pre-recorded statement on disk hardly constitutes the unethical provision of advice from a prosecutor,” Glasberg wrote.

Padilla demands more, said advocates for immigrants. It requires appointed lawyers for all unrepresented indigent defendants if there is reason to believe they were born outside of the U.S.

That view came from the Capital Area Immigrants’ Rights Coalition and two similar groups.

In a seven-page letter, the CAIR Coalition stated that prosecutors should never inquire in any way into a defendant’s citizenship or immigration status to avoid possible ethical and constitutional concerns.

Prosecutors “should not, and usually cannot, conduct the legal analysis” to determine if a plea offer would be a deportable offense, the advocates wrote.

Warnings from a judge also are no replacement for meaningful advice by a lawyer, they said.

The CAIR Coalition and the prosecutors diverged on whether Padilla affected the requirement for procedural justice in the court system.

The immigration advocates say prosecutors’ ethical obligation to ensure “procedural justice” includes a duty not to prosecute an unrepresented noncitizen.

Parr said immigration consequences are entirely collateral, outside the requirement for fair criminal procedures.

The advocates’ proposal to provide lawyers for all noncitizen criminal defendants, no matter how small the crime, would require statutory changes and a lot of additional funding, said David J. Johnson, executive director of the Virginia Indigent Defense Commission.

“It would be a big impact,” he said.

In Prince William County, the focal point for Virginia’s immigration debate, there is no public defender’s office, Johnson said. Additional court-appointed lawyers would have to be paid from the criminal fund administered by the Supreme Court, he said.

That fund – used to pay for court-appointed lawyers as well as guardians ad litem and interpreters – often runs short near the end of the fiscal year.

The proposed LEO is still under consideration by the ethics committee, according to VSB Ethics Counsel James M. McCauley. “It’s going through some changes and revisions pursuant to the comments and committee discussion,” McCauley said.

The proposal is expected to be on the committee’s agenda when it meets again March 19.

Meetings of the VSB’s ethics committee are closed to the public under rules that deem all deliberations of that panel to be confidential.

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