Legal Issue: How does the Sixth Amendment’s guarantee for effective assistance of counsel affect a non-citizen where on advice of his criminal defense attorney he pleads guilty to a charge that will cause mandatory deportation in-spite of the attorney’s assurance that deportation was not a consequence.  Does this advice amount to ineffective assistance of counsel and allow the setting aside of the guilty plea?

(This case was heard by the Supreme Court in October of 2009 and should be decided in 2010).

Pertinent Law:

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Jose Padilla, a legal permanent resident, originally from Honduras has legally resided in the United States for forty years and served in the United States Army during Vietnam faces deportation after a plea bargain on drug charges. He was thoughtful enough to ask his counsel if his plea would effect his status and he was told  that he “did not have to worry about immigration status since he had been in the country so long.”  That statement could not be more wrong.

Mr. Padilla (no relationship to the al-Quida suspect) now faces permanent deportation from a country that has been the lawful home to him and his family for forty years.  He has petitioned to set aside his guilty plea and go to trial.  His case is now pending a decision by the U.S. Supreme Court.

Click here to read the law and rationale the Supreme Court will use to reach a decision