The Changing Role of Criminal Defense Lawyers
A defense attorney is a lawyer representing the defendant in a criminal trial. Most defense attorneys specialize in criminal defense, and some further narrow their practice to specific types of criminal defense. In the United States, they are responsible for representing those who have been accused of criminal activities in court, where a judge and jury will then decide if the defendant is either guilty or innocent.
A criminal defense lawyer works with the defendant to develop the best way to minimize the consequences of any unlawful activity the client may have been involved in. If the client is innocent, it is the job of the criminal defense lawyer to prove that. . A criminal defense lawyer may also help to customize a sentence for the defendant that will help to keep them out of future trouble -- most often the case in juvenile or family court cases. A good criminal defense lawyer knows the ins and outs of the local court circuit.
The roles and responsibilities of the criminal defense lawyers are evolving with time. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the United States Supreme Court decided that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences.
The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. First, where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration consequences.
The American Bar Association created a special Criminal Justice Section Task Force on Comprehensive Representation under Justine Luongo, a supervising attorney in the Manhattan Office of the Criminal Practice. The purpose of the task force is to explore the obligations of lawyers to advise clients about the consequences of criminal convictions and to offer guidance for lawyers on providing services beyond the scope of traditional criminal defense representation in light of the recent decision in Padilla v. Kentucky in which the U.S. Supreme Court ruled that criminal defense lawyers have a constitutional duty to provide advice about the non-criminal implications of a criminal conviction — implications that may include life-altering consequences such as possible deportation or the denial of employment opportunities resulting from contact with the criminal justice system.
The goal is to explore the obligations on lawyers to advise clients about the consequences of criminal convictions and help criminal defense lawyers understand and meet those responsibilities.
In Padilla, the Court found that a defense lawyer's failure to advise a client that a guilty plea would have deportation consequences for the client amounted to "constitutionally deficient" representation.
The ruling has had repercussions not only for lawyers representing immigrants. It is being used in cases where guilty pleas have had consequences in other areas, including employment, child custody and housing. An Alaska appeals court, invoking Padilla, ruled recently that a prima facie case of ineffective assistance of counsel had been made by a client who had been told incorrectly by his lawyer that his no-contest plea in an assault case would not be used against him in a lawsuit for civil damages.
That ruling found that a defense lawyer's failure to advise a client that a guilty plea would have deportation consequences for the client amounted to "constitutionally deficient" representation.
This ruling has had repercussions not only for lawyers representing immigrants. It is being used in cases where guilty pleas have had consequences in other areas including employment, child custody and housing. In a case the Alaska appeals court, invoking Padilla, rules that a prima facie case of ineffective assistance of counsel had been made by a client who had been told incorrectly by his lawyer that his no-contest plea in an assault case would not be used against him in a lawsuit for civil damages.
Mr. Petrus is now a member of the New York State Bar Association and is a practicing New York criminal defense attorney. He is also a member of the New York Association of Criminal Defense Lawyers and has sat on the New York City's Mayoral Advisory Committee for the Appointment & Reappointment of Judges. He actively engages with the issues related to the Criminal Justice System and the Criminal Defense Lawyers. In a criminal defense case, you can rely on him to bring the best of legal, ethical and practical defense of your case.
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