To permit state defendants to raise those claims in federal court for the first time also undermines respect for state courts. The presentation of new claims after conviction acts to undermine finality and to create inefficiencies.
#PLEA COLLOQUY TRIAL#
To date, the Supreme Court's doctrine has effectively placed almost all lawyer errors at trial off limits when convictions are reviewed, in part because of the Court's concerns with finality and comity. The question at the heart of this article is whether the Sixth Amendment right to counsel should require postconviction review of fundamental failures of lawyers at the trial stage. When a defense is not raised at trial, procedural rules almost always deem it defaulted and thus lost forever. Some defendants go to prison, or to their death, because the defense lawyer did not present the client's strongest case at trial. In that subcategory of cases, the Supreme Court's Sixth Amendment doctrine promising effective assistance of counsel does not deliver on its promise.
This article will identify the types of lawyer errors that demonstrate a fundamental failure to provide the expert assistance that lawyers have provided for 900 years. Court instruction on the immigration consequences of criminal activity is thus necessary in order to: (1) secure well-informed pleas by non-citizen defendants and (2) conserve the limited resources of the criminal justice system. Given the vast deference afforded to defense counsel under the ineffective assistance of counsel inquiry, a mere policing of defense counsel's duty will not actually result in added protections for non-citizen defendants. Standing alone, Padilla's holding is not robust enough to safeguard the interests of non-citizen defendants the holding is deliberately limited to clear cases involving only the adverse immigration consequence of deportation. Taking these considerations into account, in Part III I will thus introduce model language for new criminal rules of procedure that would impose a duty upon courts to inform all criminal defendants of immigration consequences at plea colloquy. Although Padilla does not mandate that trial courts re-assess the language of their plea colloquy warnings, a changed duty on the part of defense counsel will realistically lead to a changed duty on the part of trial courts. This is especially true in light of the fact that a trial court's assessment of the validity of a plea is conditioned on the quality of assistance provided by defense counsel. However, in light of the Supreme Court's cabining of deportation as a unique consequence, the altered legal duty of defense counsel post-Padilla necessarily calls for a re-examination of the legal duty of trial courts as well. Padilla merely addressed the duty of defense counsel to provide constitutionally effective assistance before plea colloquy and did not reach the question of whether a trial court's duty at plea colloquy need be altered as well.
Part II then addresses the legal duties imposed on both defense counsel and trial courts in relation to plea colloquy. Part I addresses the overlap of criminal and immigration law, arguing that the increased use of the criminal justice system to police federal immigration laws calls for greater protection of non-citizen defendants at plea colloquy. This Note argues for the passage of criminal procedure rules that would require judges to warn criminal defendants about immigration consequences at plea colloquy.
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