Supreme Court Hears Plea of Honduran

WASHINGTON (CN) - In a case that Justice Antonin Scalia compared to "opening Pandora's box," the Supreme Court heard arguments Tuesday over the deportation of a Honduran drug trafficker who pleaded guilty after his lawyer incorrectly told him that he "did not have to worry about immigration status since he had been in the country so long."

Police found more than 1,000 pounds of marijuana in Jose Padilla's truck, and after pleading guilty to the aggravated felony, he now faces deportation.

The debate centered on whether tPadilla was denied his 6th Amendment guarantee of effective assistance of counsel.

Padilla's attorney argued that claims of faulty advice should fall under the protection of the 6th Amendment.

Deputy Solicitor General Michael Dreeben argued that defense counsel doesn't have an obligation under the 6th Amendment to warn a client "about all of the myriad collateral consequences" that might result from a criminal conviction, just the direct consequences.

Liberal and conservative justices appeared concerned over where to draw the line on what a lawyer needs to warn his client about before a guilty plea.

"How do you distinguish that from, say, you'll lose your driver's license, you'll lose your right to vote?" Justice Ruth Bader Ginsburg asked. "How do we distinguish the consequences that count and those that don't?"

Stephen Kinnaird, Padilla's attorney, said the court could recognize deportation as one of a few severe consequences that a lawyer must warn his client about, and said the court can leave the issue of whether to list other severe consequences for another day.

"We can't leave that for another day. I mean, we have to decide whether we are opening a Pandora's box here, whether there is any sensible way to restrict it to deportation," Justice Scalia said. "What about advice on whether pleading guilty would cause him to lose custody of his children? That's pretty serious."

Justice Anthony Kennedy proposed that the risk be part of the guilty plea. "There is no way the government or the court can protect itself against these consequences," Kennedy said. "And there are any number of them."

Chief Justice John Roberts said that the advice was bad makes no difference, because the suspect didn't have a right to counsel in this situation. "You don't have a right to counsel with respect to those collateral consequences," Roberts said. "Why do we get into whether there is an affirmative representation or not?"

Dreeben, arguing as amicus curiae, suggested that Padilla's attorney should have referred his client to a lawyer specializing in immigration.

"The defendant asks him, 'what are the deportation consequences?' And the lawyer says, 'I don't know. I'm not a deportation lawyer. I'm a criminal lawyer, but my best guess is that you are all right,'" Roberts said, asking whether the suspect would have a claim in this case.

Kinnaird said the client would have a claim that he was incorrectly advised.

"Then every lawyer is going to say what you said they should say, 'I'm here for the criminal case. I'm not telling you anything about anything else,' as opposed to sitting down and saying, 'Here's what you need to know.' And in most cases we expect the lawyer to do a professional job," Roberts said.

Assistant Attorney General Robert Long referred to a Supreme Court ruling defining a voluntary plea as "a plea entered by one possessing full knowledge of direct consequences," and stressed that it mentioned only direct consequences.

Justice Sonia Sotomayor quizzed the attorney general. She appeared to disagree with Long's definition of a voluntary plea.

"A plea is something more than, 'I'm guilty,' Sotomayor said. "It is a strategic decision not to put the government to its burden of proof. Your definition of voluntariness suggests that there is only one component to it: 'Do I know what my rights are?' as opposed to, 'Do I know what they are and making an informed decision to waive those rights?'"

Justice Stephen Breyer seemed to think that that any lawyer that knew of the deportation consequences would have told Padilla, calling such advice a professional norm. "If you fail to meet professional norms you are guilty of inadequate assistance of counsel," he said.

"Supposing this wasn't a drug crime, a sexual abuse of a minor, which would lead to all sorts of restrictions on where the defendant could live and report and reside and the like," Justice John Paul Stevens asked. "Would that be a collateral consequence or a direct consequence the advice on that?"

Long replied that the consequences would be collateral because they are not under the discretion of the court.

Ginsburg noted the increasing number of crimes that are categorized as aggravated felonies, and said this is not a mystery. "So why wouldn't a lawyer whose client is an alien have an obligation, when there is an aggravated felony as the charge, to say, 'This will be the consequence.'?" she asked.

Padilla came to the United States from Honduras during his teens, and has lived in the United States for more than 40 years as a lawful permanent resident.

The county circuit court denied Padilla's motion for post-conviction relief on the basis of ineffective assistance of counsel, but the Kentucky Court of Appeals reversed, holding that Padilla was entitled to a hearing on his ineffective assistance claim.

The Kentucky Supreme Court reversed the appellate court, and upheld the trial court ruling denying Padilla's motion.

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