Migrants facing criminal prosecution can turn down a plea offer and elect to go to trial no matter how good the plea deal, the U.S. Court of Appeals explained recently. DeBartolo v. United States, No. 14-3579, slip op. (7th Cir. June 26, 2015). Any ineffective assistance of counsel suffered along the way isn’t absolved simply because they turned down a perfectly good plea offer.
This case involved an Italian citizen with a string of low-level drug convictions. His last eventually resulted in his deportation. Along the way, however, he was denied the competent legal counsel required by the Sixth Amendment right to effective assistance of counsel when his defense attorney failed to mention the possibility of deportation prior to accepting a plea deal as required by Padilla v. Kentucky, 559 U.S. 356 (2010). Id. at 3. After DHS initiated removal proceedings, DeBartolo sought to withdraw his guilty plea, thus opening himself up for a new prosecution. Id.
The key question facing the Seventh Circuit was whether DeBartolo could show that his attorney’s failure to advise about the possibility of deportation prejudiced him. To do that, “The defendant must show that if his counsel had not made the error of which he complains…there was a ‘reasonable probability’ that he (the defendant) would have gone to trial rather than have pleaded guilty. The defendant must also show that to reject the plea bargain and go to trial would have been ‘rational under the circumstances.’” Id. at 4. These two requirements, the court noted, are somewhat at odds with one another. The first—reasonable probability of going to trial—is a subjective inquiry regarding what the actual defendant would’ve done with the newly learned information. The second—rational decision to go to trial—is an objective inquiry that asks what the reasonable person being prosecuted under these circumstances would’ve done with the newly learned information. Id. at 4-5.
Without much fuss, the Seventh Circuit concludes that “[t]he first standard is more congenial to the usual understanding of the criminal process, which is that a criminal defendant, unless mentally incompetent…, has a right to a jury trial no matter how slight his chances of prevailing.” Id. at 5. No judge can force a defendant to accept a plea deal and neither should a defense attorney be allowed, whether through compulsion or by restricting valuable information about the consequences of accepting the plea deal. Id. at 5. In effect, the court takes the position that a defendant’s individual autonomy trumps misinformed decision-making based on attorney deficiencies.
The court could’ve ended its decision here. To be sure, it’s holding only extends this far. But the court’s opinion, perhaps because it’s written by the famously bombastic Judge Richard Posner, goes on to criticize the alternative rational decision standard. “Judges and prosecutors,” the court wrote, “should hesitate to speculate on what a defendant would have done in changed circumstances.” Id. at 5. I tend to agree, especially because most judges and prosecutors have very limited experience with the high-risk decisions facing criminal defendants. Few have ever represented defendants and fewer still have ever sat in the position of a defendant.
What’s more, the court noted that it wouldn’t have been such a crazy idea for DeBartolo to elect a trial over a plea. Giving popular opinions about low-level drug crimes, it’s possible, the court says, that a jury would’ve acquitted even if the evidence pointed toward DeBartolo’s guilt. Id. at 7. Besides, going to trial might have strengthened his hand at reaching a more favorable plea deal or simply of having spent more years in the United States (albeit in prison) closer to his family than he currently is in Italy. Id. at 8.
Two final pieces of the opinion interest me. First, the court says that defendants can expect to receive credit for time served while in immigration detention. Id. at 8. In mentioning this point without citation, the opinion implies that this is an obvious and longstanding position. It’s not. The Seventh Circuit itself didn’t come to this conclusion until just over two months ago (in a decision I blogged about here). As more migrants face imprisonment under civil immigration and criminal powers, this is an important trend for attorneys to keep track of.
Second, the Seventh Circuit erroneously refers to the Immigration and Naturalization Service as if it still exists. Id. at 9. It doesn’t and hasn’t for over a decade. It’s long past the time for federal judges (or at least their law clerks) to figure out who is imprisoning upwards of 400,000 people a year: it’s DHS not the INS.
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