Bravo to Commonwealths Attorney Jim Plowman and Chief Deputy James Fisher for their help seeing this issue through.
The topic passed through the media about two weeks ago, but was a bit overlooked here locally, despite Loudoun being a hot-bed of this activity. The spate of crimes committed by those that are not citizens of the U.S. is a serious area of concern regionally and it’s shocking to learn what some local defense attorneys have been doing in our local courts recently.
“A recent U.S. Supreme Court ruling that noncitizens in criminal cases must be advised of the possible consequences of a conviction has sparked a flurry of appeals by defendants who claim that they didn’t know that conviction would lead to deportation” (WaPo 12-29-10). As such, this case, Padilla v. Kentucky, has fired-up a real battle in Virginia between criminal defense attorneys and the local Commonwealths Attorneys’ offices over whether judges can reopen old cases for the purpose of avoiding a criminal’s mandatory deportation.
“A Loudoun County General District Court judge recently reopened four cases involving defendants who say they would not have pleaded guilty if they had known that they would be deported. In one instance this month, [Loudoun’s Commonwealths Attorney, Jim Plowman] sought a court order to stop the judge from reopening such cases, but a Circuit Court judge refused” (WaPo 12-29-10).
Our local Loudoun Chief Deputy Commonwealth’s Attorney, Jim Fisher, who has been assigned to oversee the recent flood of motions and recently appeared on Fox news about the story, filled me in: A criminal defendant pleads guilty in court. Some period of time goes by and the convicted criminal, who is not a U.S. citizen, discovers that the Federal Government is now taking steps to deport him/her (this applies to legal as well as illegal aliens). The Immigration Lawyer rushes to court and files an obscure motion called a writ of “coram vobis,” (meaning there was a factual error before the court, often used to correct clerical errors) to revisit the old case. As a result, judges have actually been setting the convictions aside (on the basis that their attorneys didn’t tell the offenders the immigration consequences of their pleas) and resetting the case for trial over the objection of our local Commonwealths Attorneys. Some of these convictions that Loudoun has been dealing with are 2, 5 and 10 years old and the sentences have already been served. Seriously folks!? Now the prosecution has to try to dig up witnesses on cases from 2002…good luck with that, Jim explains. The result is that judges often end up rewriting the past so that the conviction doesn’t get the criminal deported…
The Latest and Greatest:
Yesterday’s unanimous decision by the Virginia Supreme Court was a huge win for the law-and-order crowd, firmly rejecting the defense’s argument that these cases be allowed to be reopened under the Padilla decision. The ruling that was joined by the entire court held that “ineffective assistance of counsel does not constitute an error of fact for the purposes of coram vobis.”
The Virginia Supreme Court differentiated these cases from Padilla, saying that “although these defendants may have been subject to the ineffective assistance of counsel, their petitions were not timely because neither defendant learned of the deportation aspect of their convictions until many years after their sentences had been served.”
Expect more on this issue across the nation and perhaps before the U.S. Supreme Court. Full story in WaPo here.