High Court hears ineffective assistance case

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Having a bad lawyer can cost you time and money. But when relying on bad legal advice results in a deportation order, does that cost you your constitutional rights?

That is the question the justices of the U.S. Supreme Court considered Tuesday during oral arguments in Padilla v. Kentucky.

Jose Padilla was charged with marijuana possession and trafficking and a number of other, less serious crimes.

His attorney advised him to plead guilty to the drug charges in exchange for having the other charges dismissed. Padilla asked the attorney whether the guilty plea would affect his immigration status, but the lawyer said it wouldn’t.

However, drug trafficking is an aggravated felony punishable by mandatory deportation.

The Kentucky Supreme Court upheld his conviction, holding that an attorney is not required to advise about the collateral consequences of a guilty plea, and therefore incorrect advice cannot qualify as ineffective assistance of counsel.

Stephen B. Kinnaird argued on the defendant’s behalf. He urged the Court to adopt the standard that bad advice from a defense attorney regarding deportation can trigger Six Amendment concerns.

But Justice Ruth Bader Ginsburg wondered how far such a ruling would go.

“How do you distinguish that from saying ‘You’ll lose your driver’s license’ or ‘You’ll lose your right to vote?’” Ginsburg asked. “How do we distinguish the consequences that count and those that don’t?”

“There is no need to draw lines,” Kinnaird said. “If this Court is troubled by a broad rule and is inclined not to issue a general rule, it may simply recognize deportation as among the few collateral consequences” that trigger Sixth Amendment issues.

Kentucky Assistant Attorney General William Robert Long Jr. argued that defense attorneys only have an obligation to warn of direct consequences of a guilty plea.

But Justice Stephen Breyer asked about the moral obligation of lawyers to give crucial information to their clients, using a political asylum hypothetical.

“What if [the defendant] tells you this story where it is quite apparent to you that if he pleads guilty, back he goes, where he might be killed and so might his family?” Breyer asks. “[Of] course, you would tell the client [of the consequences.] Then has a lawyer who has failed to do so not met the prevailing professional norm? … I don’t see how you avoid answering that question ‘yes.’”

Deputy Solicitor General Michael R. Dreeben, arguing as amicus on the federal government’s behalf, straddled the line between the two sides. Although the government agreed that defense attorneys have a duty not to dispense incompetent advice, in this case Dreeben argued that the advice did not rise to the level of violating the Sixth Amendment.

On the first point, Chief Justice John G. Roberts, Jr. asked if such a finding would have a chilling effect.

“Then every lawyer is going to say: ‘I’m here for the criminal case; I’m not telling you anything about anything else,’ as opposed to sitting down and saying: “Here’s what you need to know,’” Roberts said.