By Robert Barnes
Washington Post Staff Writer
Wednesday, October 14, 2009; A04
California truck driver José Padilla was considering whether to plead guilty to trafficking in marijuana, but first he had a question for his lawyer: Would the plea affect his status as a legal permanent resident?
Padilla, a native of Honduras, had been in the United States almost 40 years and had served in the Army during the Vietnam War. (He shares a name with, but is not related to, the onetime "enemy combatant" convicted on terrorism charges.) He said his lawyer told him that he did not have to worry about immigration status because he had been in the country so long.
So Padilla pleaded guilty -- and found out his lawyer was wrong.
Padilla's plea to an aggravated felony left him virtually no defense to deportation once his jail term ends. His new attorney was at the Supreme Court on Tuesday arguing that the first lawyer's advice deprived Padilla of his constitutional right to effective counsel and meant he should be able to withdraw the plea.
The question before the court goes to what kind of advice a lawyer must provide someone charged with a crime. The Supreme Court in Kentucky -- where Padilla was arrested -- said a lawyer is required only to advise his or her client about the direct consequences of a guilty plea and not collateral issues, such as how it would affect immigration status.
Padilla's lawyers argued that such advice is necessary to ensuring that a defendant makes an informed decision about whether to enter such a plea.
The U.S. government took a middle ground. It agreed with Kentucky that the lawyer has no duty beyond informing of the consequences of the criminal case. But it also said that if the lawyer decides to provide advice, it cannot be "misadvice" -- the wrong information that Padilla alleges he received.
The case is important because Congress in recent years has increased the number of crimes for which deportation is mandatory, so the nation's nearly 13 million legal permanent residents, such as Padilla, are more vulnerable to deportation than they might think.
Justice Ruth Bader Ginsburg said the changes in the law are "nothing mysterious. . . . 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?' "
Kentucky Assistant Attorney General Wm. Robert Long Jr. replied that it might be well for the lawyer to do so, but that it is not part of the Constitution's requirement of effective assistance of counsel.
Justice Sonia Sotomayor seemed to agree with Ginsburg. She said the threat of deportation was an important component of a defendant's decision on whether to go to trial and risk a longer sentence, or plead guilty to a charge that would automatically send him back to a place where he "might starve to death."
But other justices worried that it would be impossible to limit the issue to deportation -- a tack that Padilla's attorney Stephen B. Kinnaird suggested was one way to narrowly decide the case.
"We have to decide whether we are opening a Pandora's box here, whether there is any sensible way to restrict it to deportation," said Justice Antonin Scalia. "What about advice on whether pleading guilty would -- would cause him to lose custody of his children? That's pretty serious. What if pleading guilty will -- will affect whether he can keep his truck, which is his main means of livelihood, or whether -- whether it would be seized by the government as the instrument of his crime?"
Justice Samuel A. Alito Jr. said he was sympathetic to Padilla's predicament. "Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client, who had been in the United States for a long time," he said. But he wondered how to ever know whether such a conversation had occurred between client and attorney.
Kinnaird said that it would be up to the defendant to prove and that he did not think it would unduly burden the court system if such claims were allowed.
Deputy Solicitor General Michael R. Dreeben told the justices that the federal courts are split on the issue, with some saying there is no duty for lawyers to provide advice on additional consequences and others saying that if bad advice is given, the defendant has a claim.
But even though the federal government thinks Padilla received bad advice, it is not supporting him. It said Padilla, who was picked up with more than half a ton of marijuana packed in coolers in his truck, had no reasonable belief that he would have prevailed if he had gone to trial, and would thus have been subject to deportation anyway.
Kinnaird said Padilla had a possible defense: that he did not know what was in the packages he was hauling.
The case is Padilla v. Kentucky.