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Loudoun judge defies Va. Supreme Court, continues to reopen immigrants' cases

By Tom Jackman
Washington Post Staff Writer
Sunday, February 6, 2011; 10:14 PM

When is legal precedent not legal precedent?

When a judge disagrees with it. A lot.

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren't told that a criminal conviction could lead to their deportation.

Worcester strongly disagreed and reopened his fifth closed case. It was filed by an immigrant who said he wouldn't have pleaded guilty in 2005 if he had known the conviction would result in his deportation.

"If this Court were to abide by the ruling" issued by a unanimous state Supreme Court, Worcester wrote, "a constitutional violation will stand uncorrected. . . . The Court will not allow this to happen."

Loudoun prosecutors were flabbergasted. Even the defendant's attorney was shocked.

"We respectfully disagree with the judge's decision," Loudoun Commonwealth's Attorney James E. Plowman said. "We were under the impression that the Supreme Court was extremely clear in its ruling."

Defense attorney Rob Robertson was surprised to win a case the Supreme Court had apparently declared he should lose, but he said, "It is very refreshing to see that there are judges in the commonwealth who are not going to let a constitutional violation stand."

Plowman said he hadn't decided his next move in the slightly confusing legal area of a case that ended nearly six years ago. But, he said, "we are going to continue to fight this with every legal remedy that we have."

Worcester said he could not comment on a pending case. On Friday, fellow Loudoun District Court Judge Julia T. Cannon, faced with an identical circumstance, declined to reopen a case and wrote that "lower courts are obliged to abide by rulings of appellate courts."

The issue heated up in Alexandria and Norfolk last year when defense lawyers used the writ of coram vobis, meaning the "error before us," to persuade judges to reopen and amend some old convictions. According to Virginia law, the writ can be used to point out "any clerical error or error in fact for which a judgment may be reversed or corrected."

The defendants made the same claim: They wouldn't have pleaded guilty if they had known that the conviction and sentence would affect their immigration status. That included people who were in the United States legally, with work permits or permanent resident "green cards."

Convictions involving a year or more of jail time can lead to deportation under federal immigration law, but the defendants didn't learn of those repercussions until years later, when deportation proceedings began.

And unlike in other many states, revisiting a criminal case in Virginia is difficult. Defendants have 21 days to appeal a felony case or 60 days to reopen a misdemeanor case. They have two years to file a writ of habeas corpus, but only if they are still in custody or under court supervision.

Prosecutors in Alexandria and Norfolk appealed the reopening of cases under coram vobis. While that was pending, the U.S. Supreme Court ruled in Padilla v. Kentucky that defense lawyers must advise their clients of the possible immigration consequences of their cases. That spurred even more coram vobis motions, Virginia prosecutors said.

After Padilla, Worcester began granting coram vobis motions in Loudoun and reopened four convictions involving people who said they weren't told of the immigration implications of their cases. Loudoun prosecutors appealed one of the rulings to Circuit Court and lost. So they waited for the state Supreme Court to decide the Alexandria and Norfolk cases.

That ruling, in the eyes of prosecutors, was a slam dunk. Justice Donald W. Lemons wrote that "ineffective assistance of counsel does not constitute an error of fact for the purposes of coram vobis."

Some immigration lawyers said the Virginia high court ruling nullified the effect of the Padilla case in Virginia, except for those who acted in the short window afforded after a case ends. Worcester evidently agrees with that analysis.

On Monday, Worcester issued a 13-page order in the case of Edgar L. Cabrera, a legal resident who pleaded guilty to misdemeanor petty larceny in April 2005. He was given a 12-month sentence, with all 12 months suspended. In September, he was ordered deported, so Robertson filed a coram vobis motion to reopen the case in hopes of getting a slightly shorter sentence and avoiding the immigration action.

"The decision of the Virginia Supreme Court," Worcester wrote, "leaves Mr. Cabrera without any remedy to correct what the United States Supreme Court has found to be a constitutional violation in the proceedings."

Worcester acknowledged the concept of stare decisis, a legal term meaning that lower courts must follow the precedents set by higher courts. But "stare decisis is not absolute and there are rare exceptions," Worcester wrote. Citing what he considered errors in the Virginia high court's ruling, Worcester wrote that "the Virginia Supreme Court's opinion . . . is at odds with longstanding precedent and jurisprudence."

Jennifer S. Varughese is a Manassas lawyer who represented Emmanuel Morris. The legal U.S. resident originally won his coram vobis case on a 12-year-old embezzlement conviction in Alexandria, and his sentence was reduced. But that ruling was reversed last month by the Virginia Supreme Court, and he faces deportation.

Varughese said that she was encouraged by Worcester's ruling to challenge the state Supreme Court and that she was planning to appeal that case to the U.S. Supreme Court.

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