January 17, 2010

Santa Clara County Explores Providing Legal Defense Counsel in Criminal Misdemeanor Cases; Possibly Huge Impact in Deportation Prosecutions

This morning's San Jose Mercury News is reporting plans by the Santa Clara County Public Defender's Office to remedy a gaping hole in the county's criminal justice system, by providing criminal defense counsel at criminal arraignment hearings in misdemeanor cases.  As reported by the Mercury News' Sean Webby,

Unlike most counties in California, Santa Clara County has no lawyers staffing misdemeanor arraignments, a defendant's first court appearance. Many defendants resolve their own cases right then by accepting a judge's on-the-spot-deal and pleading guilty. Critics say the system encourages people to plead guilty to avoid spending more time in custody waiting for their cases to be reviewed by the Public Defender's Office.

Dave Cortese, one of our elected County Supervisors, is "embarrassed" by this due process black hole, and is working with Supervisor Ken Yeager in support of the PD's efforts to get lawyers helping indigent misdemeanor defendants.

If put in effect, such a proposal would have a huge impact in assisting immigrant defendants, who, desperate to get out of jail and back to their jobs and families, unwittingly plead guilty to crimes that may lead to their deportation, when what they should be doing is fighting aggressively to get their charges reduced or dropped altogether.  In our practice, we see numerous, non-English speaking immigrant clients who took guilty pleas to misdemeanor theft, controlled substance, and domestic violence offenses.  The Santa Clara County District Attorney's Office charges these cases aggressively, often with multiple overlapping charges (for instance, methamphetamine possession, under the influence and drug paraphernalia possession; burglary and theft; protection order violations and spousal battery) on the assumption that defendants will obtain defense counsel who will then negotiate a plea deal down to a more favorable disposition.

This adversarial system might make sense if the parties were evenly matched, with zealous attorneys fighting it out on both sides.  But where an unrepresented, incarcerated, non-English speaking defendant is doing battle with the comparatively limitless resources of the District Attorney's office, what we have is not a fight, but a bloodbath.

Taking a misdemeanor plea just to get out of jail typically creates catastrophic immigration consequences.  Many immigrants are unaware that even a misdemeanor conviction can lead to deportation.  For misdemeanor convictions for crimes involving moral turpitude (like theft) transpiring within five years of a permanent resident's admission to the United States, the possible sentence must be one year or more to raise the possibility of deportation.  These limitations however are inapplicable to immigrant defendants convicted of drug or domestic violence offenses, and defendants could face deportation regardless of the length of possible sentence or period of legal residence in the United States.  These limitation do not apply moreover to immigrant defendants who were ever previously convicted of any other crime involving moral turpitude, no matter how long the immigrant has lived in the United States.  

With public defenders in place to assist at the misdemeanor arraignment hearing, immigrant defendants could get a much fairer shake, both in their criminal cases and in avoiding harsh immigration consequences typically far out of proportion to the underlying misdemeanor offense. Under the California Supreme Court's Resendiz decision, defense attorneys are required to provide advice on the specific immigration consequences of accepting a guilty plea. With the aid of a public defender, immigrant defendants could make more knowing and intelligent decisions both in their criminal defense and avoiding deportation down the line. 

For anyone who cares about ensuring that the power of Government to jail and convict is properly limited, so that innocent defendants are not wrongly convicted and guilty persons are only punished in proper measure, this is an effort worth supporting.

As an important aside, positive developments like this are possible thanks to vibrant local reporting.  These efforts are a result of the Merc's editorial advocacy and previous work illustrating deficient due process protections in our local criminal justice system. Please support your local paper and subscribe.  The news isn't free.

Jan 17, 2010 12:36:43 PM | Criminal Immigration Defense, Immigration Law

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