The Sixth Amendment of the Constitution guarantees that an accused shall have the effective assistance of counsel. For most, that means that a lawyer will research the facts and law of a criminal case and determine the likelihood of an acquittal, or if a plea bargain is the safest path.
In Howard County District and Circuit Court Cases with Spanish-speaking criminal defendants, the focus has traditionally centered on whether a Spanish-speaking defendant could face jail time, probation, or fines. With the changing approach that the federal government has taken towards immigration, the status of a Spanish-speaking defendant and the potential collateral implications to an accused has become a focus point for how a defense attorney must approach the defense of a criminal case.
The Sixth Amendment and Spanish-Speaking Defendants
In many instances, criminal cases can be resolved through a plea bargain. These agreements can protect a defendant of numerous serious consequences of being found guilty at trial. In order to proceed with a plea bargain and in order to comply with the Sixth Amendment, the defense counsel has a responsibility to advise his Spanish-speaking criminal defendant of the rights that he is giving up as a result of the plea and the potential consequences. The right to a trial by jury, the right to confront and cross-examine a witness, or the right to maintain silence and refuse to testify are all important rights. One area of advisement that can be overlooked is the implication that a guilty finding may have on a non-citizen Spanish-speaking client.
Whether known by a defense attorney or not, in a case where there is a plea to a crime that a state considers to be a misdemeanor, if the sentence is for one year or more, of even suspended time, immigration law considers that misdemeanor to be an aggravated felony and makes deportation mandatory for anyone who is not a citizen of the United States. There is no distinguishment between the undocumented worker, the student visa holder, or even the permanent resident: Deportation is mandatory.
Traditionally, the courts, as well as counsel, have felt that telling their Spanish-speaking clients, "if they are not citizens of the United States, a guilty finding may result in immigration consequences which could include deportation" is sufficient. That is the instruction that most courts currently give and the detail that most defense attorneys normally provide.
The Supreme Court, however, has weighed in on this issue in Padilla v. Kentucky, 130 S. Ct. 1473(2010). That case, which was argued to the Court in 2009 and decided in March of 2010, has been held to require that an accused facing the possibility of mandatory deportation must be advised of that fact. It is not sufficient for a defense attorney to inform his client that deportation is possible, or even to recommend that they consult with an immigration attorney who would be more experienced with that area of law. Instead, the courts have ruled that it is incumbent on the Howard County criminal defense attorney to obtain and provide that information. A failure to provide sufficient information regarding immigration consequences will lead to a determination that their has been ineffective assistance of counsel and that a new trial must be granted based on Constitutional grounds.
If you need legal assistance in a criminal matter in Columbia, Ellicott City or another area of Maryland, please contact Portner & Shure by calling (410) 995-1515 or (301) 854-9000 today. Members of our team speak Spanish and a host of other languages.