A Day Can Make a Difference

19 Feb

Continuing with my topic about inexperienced public defenders handling immigration cases….


This past summer I was asked to represent a young man who was a permanent resident. Several years ago, he was involved in the theft of a car and pleaded guilty to a Felony Theft offense. His public Defender at the time got him probation, which was a very good outcome.

A year or so went by and this young man violated his probation. He was arrested, brought before the court and resentenced to time served to 12 months incarceration. The Public Defender thought that this was a good outcome as the young man was immediately eligible for parole. 

However, this was an awful outcome as the young man was immediately taken into immigration custody. The reason— The young man had now been convicted of an aggravated felony. 

Under immigration law if you are convicted of a felony and sentenced to one year or more of jail time, you have been convicted of an aggravated felony. If the young man had been sentenced to 11 months and 29 days as opposed to 12 months, he would not have been convicted of an aggravated felony and would not have been facing deportation. 

The public defender genuinely did not understand the difference and did not argue for that one day reduction. In my experience, most judges are willing to give that one day reduction.

This was an unusual case. I filed a petition to modify the sentence to reduce it by one day. The District Attorney involved basically took no position and left it up to the Judge.

The Judge denied relief. He took the controversial position that Padilla vs. Kentucky only applies to guilty pleas and does not apply to resentencings. He basically decided that my client was not entitled to the effective representation of counsel at the time of a resentencing. While it is true that there is presently no case law on point and there is no case law saying the judge was wrong, there is no case law saying he’s right either. 

The clear intention of Padilla is that non-citizen should know the immigration consequences of their plea at all stages of a proceeding. Saying that a criminal defense attorney must be knowledgeable at one stage, but is allowed to be completely ignorant and unhelpful at others strikes me as irrational and against all the caselaw regarding ineffective assistance. 

I believe that a criminal defense attorney has an obligation to advise his client about immigration consequences and argue for a favorable outcome at every stage of the proceedings. 

This case was just moved to the Superior Court of Pennsylvania. I am hoping for a favorable outcome in the next several months. 

Selection of Criminal Attorneys In Immigration Cases is Important

19 Feb

Last year I began representing a woman who came to the United States to escape some really horrible conditions in her home country. She was lucky enough to be approved for asylum and for permanent residence. 

Unfortunately she became involved in a prostitution service while in the United States. She was arrested and ashamed to tell her family, and  accepted the services of a well-meaning but inexperienced public defender. The public defender did not realize that prostitution is a crime involving moral turpitude and was deportable. The public defender also failed to consider the fact that the woman was eligible for Pennsylvania’s first time offender’s program (ARD).

The public defender told the woman that she was getting a good deal and had her plead guilty to prostitution for one year probation. Immigration showed up shortly thereafter and held the woman for deportation.


The family then found out what was going on and hired me. Thankfully several things happened. The Public Defender took responsibility for his errors, the District Attorney recognized this as an error and offered the woman ARD, the Judge assigned to the case accepted what had occurred and promptly vacated the conviction and put the woman into ARD. 


As ARD is a non-conviction program, the woman could not be deported for taking ARD. 


Unfortunately immigration proceedings move very slowly and it took another year to get the deportation proceedings dismissed. Yesterday they were dismissed and my client is now able to move on with her life, keep her permanent residence and hopefully become a U.S. citizen in another few years. 


The point of this is that if you or a loved one have a criminal charge and you are not a U.S. Citizen, you should consult an experienced immigration attorney. Even public defenders who generally have immigration training often do not have the experience to apply the training and make mistakes. Luckily, this was a case where everyone involved recognized the mistake and was willing to work to correct it. 


Infancy Defense in PA

30 Jul

I recently had a case where the Defendant was charged as an adult with molesting two children when he was 13 or 14. At the time of trial I attempted to argue that the Defendant had an “infancy” defense.

The infancy defense is a common law defense and basically says that children under age 14 lack the capacity to commit a crime.

The Court ruled that the infancy defense had been eliminated by the creation of the Juvenile Justice system in PA. I countered that by arguing that a common law defense such as infancy can only be eliminated by a specific statutory action. While the creation of Juvenile Court eliminated the infancy defense for individuals in Juvenile Court, the infancy defense was not eliminated for individuals like my client whose cases were being heard in adult court.

The Trial Court would not permit me to use the defense.

I appealed the issue to the Superior Court. The Superior Court agreed with me. The infancy defense does exist for individuals in adult court who are charged with crimes that they committed as children.

Unfortunately, the Superior Court found harmless error and refused to reverse, but I’ve got a motion for reconsideration pending that will hopefully lead to a just result for my client.

Grandparents of Unmarried Children’s Rights in PA

30 Jul

I am pleased to report that I received a favorable appellate decision from the Superior Court of Pennsylvania yesterday.

I had a case in which grandparents sought a regular schedule of time with their grandson. The grandson’s parents had never married. The mother of the grandson had primary custody and would not agree to give the grandparents time with the grandchild.

I filed a custody petition and the Judge incorrectly ruled that grandparents can only seek visitation if the grandchild’s parents have been married.

I appealed the case to the Superior Court.

In a published decision, the Superior Court decided that all grandparents have a right to seek visitation with their grandchildren if the grandchild’s parents have been separated for more than 6 months. This is a significant decision as it clarifies the rights of grandparents in all of Pennsylvania.

Recusal of Judges in Pennsylvania

28 Nov

There is an article in today’s paper about a case in which I sought recusal of all the judges in the county. This arises from a case in which a deputy sheriff had been killed.

Recusal is a very tricky thing. There are not clear standards for recusal in Pennsylvania except in cases where financial interests are involved. The Canons of Judicial Ethics reference an “appearance of bias”, but don’t set concrete rules for those situations. I’m not even sure it would be possible to set concrete rules in such a situation.

Recusal is clearly discretionary under Pennsylvania law. As such a recusal is very rarely appealled. Where a recusal is appealled the appellate courts overwhelmingly back the Judge’s decision to recuse or not to recuse.

From a practical perspective, recusals are problematic, because an implication of bias tends to offend judges. Knowing the power that judges have in discretionary aspects of a case, I go out of my way to avoid offending judges.

I’ve only asked for recusal a couple times before and those were in clear cut cases where a judge knew a witness or a party to a case.

This case was different because the judge did not know the people involved, but obviously had ties to the sheriff’s department. Sheriff’s are the enforcement arm of the court and provide courtroom security. This was a case that the sheriff’s department did take a close interest in.

I argued that because of the appropriately close relationship between the sheriff and the judges, there is an appearance of bias. Thankfully, the judge was not offended and agreed with my argument. The judge recused himself and has now put the matter before the supervising judge to see if any of the county judges can handle the matter.

Conspiracy to Commit Murder In Pennsylvania

28 Nov

I came across an interesting issue in a case I’m currently working on. Pennsylvania has three types of murder. 1st Degree Murder requires a specific intent to kill. 2nd degree murder is felony murder. Third degree murder is a killing where there is an intentional act, but no specific intent to kill.

An inchoate act (attempt, conspiracy, solicitation) always requires a specific intent to complete the whole crime. It is for this reason that there is no attempted 3rd degree murder in Pennsylvania- a defendant can’t be convicted of intending to commit a killing, when 3rd degree murder acknowledges that there was no specific intent to kill.

However, Pennsylvania has been less clear about conspiracy to commit 3rd degree murder. I see no difference between attempt and conspiracy in this case, but some courts do. The Supreme Court of Pennsylvania is set to make a decision on this in the near future.

I presently have a client who is alleged to have handed a gun to a conspirator. The conspirator then shot and killed the victim. Conspiracy to commit third degree murder is charged. If the Supreme Court takes away that charge it will make a big difference for my client.

Obama’s Big Step Towards the DREAM Act

17 Jun

This past Friday saw the Obama administration take a big step towards the DREAM act. In a memo sent to the department of Homeland Security, Obama has created a new class of individuals- non-deportable young people who entered the country illegally.
This is a long time coming. There are thousands of young people who were brought to the United States as children, who grew up in the U.S. school system and hold down jobs with U.S. companies, but have no legal status. These are by and large law abiding individuals who would do anything to stay in this country legally.
I’ve talked to dozens of these people in the course of my career and up till now had to tell them to go back to their home country (a country they’ve never been to) and pray and wait (possibly for decades).
This new status does not convey any legal rights to these young people other than the ability to lawfully work and avoid deportation. However, for most of them that will be enough. They will now be able to raise a family and lawfully work without the constant fear of deportation. This will hopefully be enough to make banking institutions and schools more comfortable so that these individuals will be able to borrow to continue their education.
There is a lot that is unknown and a lot to be implemented in the next 60 days (the effective time period). As will all other areas of immigration, this new status will certainly come with plenty of new forms, fees and procedures to be followed.
Conspicuously absent from Obama’s memo is any discussion of long term status of these individuals. There is no mention of the long term possibility to change their status to permanent resident. This is likely because Obama does not have the power to implement such a change. That kind of change would require legislative action.

There will be plenty more to come in upcoming weeks.

School Discipline Cases are not that Different from Criminal Cases

15 May

I do a handful of school discipline cases a year. Despite what is commonly reported, there is no such thing as a “permanent record” and school discipline (other than expulsion) does not follow a student into college or adulthood.

From preparing for a case recently, I reviewed the relevant law in this area. School discipline procedures are moderately well mapped out under the Pennsylvania Administrative Code. As with criminal offenses, a student is entitled to know in advance what the school “code of conduct” is and what the potential penalties are under that code of conduct. Every school is required to have a code of conduct.

In many cases students are not entitled to a hearing, however, if a suspension is more than 3 days, they are entitled to an informal hearing. Suspensions of longer than 10 days or expulsions allow for a formal hearing.

A student is entitled to advanced notice of the hearing and its purpose and is also entitled to be able to present witnesses and argue about the case.

Pennsylvania Courts have found that defects in the hearing procedure will invalidate school discipline.

Unfortunately, as I’ve seen with these school discipline cases, schools make their own procedure and the individuals enforcing discipline have little to no awareness of the law.

Should your student end up in a position where they have been wrongfully disciplined, get the case reviewed by an attorney. It may be possible to have the discipline removed from their record.

Pennsylvania’s Confusing Stance in Relation to Collateral Consequences

30 Dec

Collateral consequences are indirect legal consequences of a criminal conviction. Collateral consequences generally include things like driver’s license suspensions, loss of other public licenses, loss of firearms rights, loss of the right to vote, loss of the right to serve on a jury, loss of certain public benefits and loss of immigration status. The infuriating thing about Pennsylvania law is that in many cases, these consequences are not spelled out in any way when you plead guilty. In fact, in most cases, the Court staff has no idea of these consequences. Some of these consequences are “hidden” in other parts of the law, so that someone casually reading the law won’t find them. Only an experienced legal practitioner will be able to tell you all the consequences.

I have had many cases in which a client has pleaded guilty to a traffic offense (without consulting me), only to discover that they are facing a driver’s license suspension. While that guilty plea can often be reversed, that is not true in every case. The problems can be even worse in immigration cases, where people have found out years after the fact that they’ve lost the ability to legal reside in the United States. By then, it is far too late to change anything.

Until a year and a half ago, Pennsylvania had uniformly taken a “too bad” position. A court was only required to tell you your sentence and your fine. It was up to you to determine what collateral consequences may apply. If you were surprised by a unexpected collateral consequence, or were misinformed by your lawyer- “Too bad” – the courts would not help you.

In March of 2010, the U.S. Supreme Court handed down Padilla v. Kentucky. Under Padilla, collateral consequences relating to immigration are now important. A guilty plea  in which a defendant was not informed of the immigration consequences is now invalid. Later in 2010, the PA Superior Court decided that failing to tell someone that they may lose their pension due to a guilty plea may invalidate the plea.

So, the law began to move in the right direction, but then stopped. It is still not entirely clear what you have a right to know before your guilty plea. I currently have a case in the Supreme Court and a case in the Superior Court dealing in part with these issues.

It is my hope that the law will continue to move towards the requirement of fully informing the public of the consequences of a plea before they enter it, but until then, the best thing a member of the public can do is to consult with a knowledgeable attorney every time they enter a plea.


Gist of the Action Doctrine

30 Dec

I’m currently working on a federal brief in a case involving Gist of the Action Doctrine. This is a case in which my client, the plaintiff, has claims under Pennsylvania State law that were brought in Federal Court. The claims arise from a mortgage contract and some bad behavior by the mortgage company after the mortgage. My client brought a breach of contract claim in relation to the mortgage contract as well as tort claims under Pennsylvania’s consumer protection laws. The opposing party has argued “Gist of the Action Doctrine.” This doctrine says that when an action is brought in contract and tort for the same conduct, only one, tort or contract can survive.
The doctrine is interesting, as while it has been widely accepted by federal courts and lower state courts, it has never been addressed by the PA Supreme Court.
I don’t expect to have a problem in this case, as there are multiple examples of behavior outside the contract, so I should have a good argument that both tort and contract claims should survive.