THE COUNSELORíS CORNER

 

Sometimes I just donít get it.There is a penal code section that has been in existence since 1978 which requires judges to inform defendants that if they plead guilty or no contest to a criminal charge, their plea can result in their being deported or denied naturalization or excluded from admission to this country.The law says that this must be told to a defendant before he pleads guilty and he must acknowledge that he understands this.The purpose here is to have an individual warned of significant potential negative consequence of his plea.

 

So what happens?In 1992, Jose Francisco Zamudio pleads no contest to auto theft, and is never told by Judge Michael Platt that he could be permanently barred from this country.Sure enough, Mr. Zamudio finds himself in trouble with the INS.He then moves to withdraw his plea of no contest, as he had not been made aware of the potential immigration consequences.

 


Did the State Supreme Court follow the law as it was put forth by the legislature, and as one might reasonably assume they would do?No!The State Supreme Court found that defendantsí pleas in this type of situation can only be withdrawn if the defendant can show prejudice.The showing of prejudice means that the individual must show the court that he would not have accepted the plea agreement and would not have pleaded no contest had he known of the potential immigration consequences.Now, the penal code section says nothing about a defendant having to show prejudice.The State Supreme Court is reading into the statute something that doesnít exist.The Court sent the Zamudio case back to the trial court, directing it to determine whether or not Mr. Zamudio can show prejudice.

 

In reality, I donít think this ruling will affect too many non-citizens.I think itís safe to say that if you plead guilty to a crime and because of it, you are about to be deported, that would be a pretty good showing of prejudice, such as would permit the individual to withdraw his plea of guilty.So I donít think that too many people will be adversely affected, however, I am not a big fan of judicial legislation.We have the State Legislature, not to mention all of those propositions on our ballot every November with which to pass laws.The role of the Court is to interpret the laws, not add to them.This is not logical.The statute in this case is not at all ambiguous.It doesnít say, ďoh, by the way, you have to show prejudice.ĒIt is a clearly stated rule of law. However, by a five to two vote, the State Supreme Court decided to do a little legislating of its own.It would be nice for lawyers and other to be able to rely on the plain meaning of words.Life is complicated enough at times that it is not at all useful to add a complicating factor where none exists.