Padilla v. Kentucky – Oral Argument – October 13, 2009

Media for Padilla v. Kentucky

Audio Transcription for Opinion Announcement – March 31, 2010 in Padilla v. Kentucky

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 08-651, Padilla v. Kentucky.

Mr. Kinnaird.

Stephen B. Kinnaird:

Mr. Chief Justice, and may it please the Court:

The Kentucky Supreme Court announced a categorical rule so restrictive of the Sixth Amendment that the United States Government disavows it.

The court held that the Sixth Amendment never provides a remedy to a defendant who pleads guilty to a crime on the false advice of his attorney that he would not be deported as a result.

The narrowest ground on which this Court may reverse the Kentucky Supreme Court is to hold that mis-advice claims are cognizable under the Sixth Amendment.

Any advice that a lawyer actually gives to a defendant on whether to plead guilty is advice affecting criminal liability.

Such advice must meet Sixth Amendment competency standards.

John G. Roberts, Jr.:

Well, other advice, for example advice about whether to take the stand, that can have significant collateral consequences — you know, he might lose his job or lose government contracts based on what he says.

Is that the sort of advice that would be covered in — under your position?

Stephen B. Kinnaird:

I think, for mis-advice, the test would be whether it’s a material misrepresentation that would be material to a reasonable defendant in deciding whether to plead guilty, so it–

John G. Roberts, Jr.:

Only plead guilty?

Not, for example, whether it would be material to the defendant in deciding whether or not to take the stand?

Stephen B. Kinnaird:

–I think to plead guilty is the key strategic decision that is in the — in the client’s sole duty and prerogative, to make that decision.

Samuel A. Alito, Jr.:

Why would it be limited to a decision to plead guilty?

What if a decision to plead guilty would have lesser immigration consequences than a guilty verdict after — after going to trial?

Wouldn’t you have the same situation there?

Stephen B. Kinnaird:

I’m not aware of any consequences that would depend on whether the conviction was based on a guilty plea or a trial.

Samuel A. Alito, Jr.:

Well, what if — what if an offer is made for a plea to an offense that would have lesser immigration consequences than the offense for which the person might be convicted if the person goes to trial?

Stephen B. Kinnaird:

Well, that would be subject–

Samuel A. Alito, Jr.:

And the — and the attorney doesn’t fully apprise the client of the situation?

Stephen B. Kinnaird:

–And he goes to trial?

Samuel A. Alito, Jr.:

Right.

Stephen B. Kinnaird:

I think that — that would only be a Strickland claim if this Court were prepared to rule that going to trial is ever prejudiced under Strickland, and there is a circuit split on that.

But the concern of the Sixth Amendment–

Samuel A. Alito, Jr.:

But do you see a difference in principle between the two situations with respect to the issue that is before us here?

Stephen B. Kinnaird:

–I’m not sure that there would be.

Provided the Court would recognize that as prejudice, I think they would all be under Strickland claims.

Ruth Bader Ginsburg:

How do you decide which of the many consequences your rule would cover?

I mean, you are now talking about a narrower ground, misadvice.

Ruth Bader Ginsburg:

But you are also urging that when the lawyer is silent on a matter that he should inform the defendant that, too, is covered.

But whichever way you do it, how do you — you say certainly deportation is a consequence that the defendant should be told about.

What about — how do you distinguish that from, say, you’ll lose your driver’s license, you’ll lose your right to vote?

How do we distinguish the consequences that count and those that don’t?

Stephen B. Kinnaird:

Your Honor, the issue here is simply the legal standard that applies to any of — any of these claims, and it would be the same two-part standard under Strickland v. Washington.

So there — there is no need to draw lines.

If this Court is troubled by a broad rule and is inclined not to issue a general rule, it may simply recognize deportation as among the few collateral consequences that is so severe and so material in a high number of cases in which it applies that the Strickland claim should be allowed to go forward.

And it can leave for another day whether there are other consequences that are too burdensome for the system to recognize.

Antonin Scalia:

Well, we can’t leave that for another day.

I mean, we — we have to decide whether we are opening a Pandora’s box here, whether there is any sensible way to restrict it to — to deportation.

What about advice on whether pleading guilty would — would cause him to lose custody of his children?

That’s — that’s pretty serious.

What if pleading guilty will — will affect whether he can keep his truck, which is his main means of livelihood, or whether — whether it would be seized by the government as the instrument of his crime?

There are so many pieces of advice which involve legal issues that — that counsel can provide advice on.

Stephen B. Kinnaird:

Your Honor, I think that is precisely why we have the contextual inquiry of Strickland.

And certainly, parental termination may in a given case be so severe a consequence that it would be material.

Antonin Scalia:

Sure.

Stephen B. Kinnaird:

But that — most of these failure to advise claims will be very difficult to plead and to prove–

Anthony M. Kennedy:

If we were in, if we were in the contract, civil contract situation, and there was a mistake, the usual rule, Restatement of Contracts, is that the — the question is whether or not it’s reasonable to have the party who made the mistake bear the risk.

Suppose we just had an instruction, Rule 11?

I recognize this is a State case, but we had a Rule 11 instruction, which said the only thing the court is going to inquire about and the only thing that is of relevance to your plea are criminal consequences.

You take the risk of any mis-advice, any misunderstanding, with respect to collateral conduct.

That’s your risk, and it’s part of the guilty plea.

If we said that, would that foreclose this kind of argument in your case?

Stephen B. Kinnaird:

–No, Your Honor, because the Sixth Amendment is a source of independent rights and the question is: What is the — the lawyer’s duty as distinct from the court.

And the lawyer has the distinct duty to assess the advantages and disadvantages of the plea–

Anthony M. Kennedy:

Well, then there is no way the government or the court can protect itself against the — these consequences, and there are any number of them.

Suppose he doesn’t advise that there is going to be civil liability in tort once he pleads guilty, because then that’s a fact that’s concluded and it’s just a question of damages.

And as Justice Scalia indicated, there are many, many instances.

I just see no way for the courts to protect themselves against — against this.

Anthony M. Kennedy:

If the client, the accused, is told that he accepts these risks, he can say, well, you know, there may be some risks I don’t know about, I’ll go to trial.

He just accepts the risks.

Stephen B. Kinnaird:

–That may be true for a due process claim, Your Honor.

But the lawyer still has an obligation to competently represent him, competently assess the legal risks, and advise the client.

Those are fundamental to lawyering.

And Strickland–

Ruth Bader Ginsburg:

But even — even if we accept that, wouldn’t a competent counsel, after telling him the deportation consequences, then say, but this is a case where the evidence is so strong against you, I advise you to take the plea rather than go to trial.

If you go to trial, you are likely to lose and you will get a longer sentence.

So does it matter in the end if competent counsel would have said, this is a good plea, take it?

Stephen B. Kinnaird:

–Yes, it certainly matters, because that goes to the question of prejudice at an evidentiary hearing.

The prejudice standard is subjective in the sense that it must account for the subjective risk preferences of the defendant as between incarceration and deportation.

But at an evidentiary hearing the defendant must be able to prove that he has a triable case, that a rational jury could find beyond a reasonable doubt — or could find reasonable doubt, rather, as to at least one element of the offense.

Samuel A. Alito, Jr.:

Your argument has — has an appeal because removal is such a harsh consequence, particularly for someone like your client who had been in the United States for a long time.

But what troubles me about it is the situation in which the defendant claims, let’s say 5 years after entering a guilty plea or after the passage of some time that mis-advice was given and the attorney on the other side is a busy public defender who by that time has handled 500 cases and is unable to remember what, if anything, was said about the immigration consequences of the case.

There is nothing in the file.

How are those cases going to be handled?

Stephen B. Kinnaird:

Well, I think that, Your Honor, that is no different than any Strickland claim that would be brought in the same time frame.

There are — remember that ineffective assistance claims are almost always brought as collateral attacks and there are many Federal and State strict ures on bringing those claims, including timeliness.

So I don’t think there is anything categorically different from the ordinary Strickland claim in your case.

Samuel A. Alito, Jr.:

Isn’t it different in that the ordinary Strickland claim concerns things that happen at trial and relate to strategy in a criminal case, as to which the public defender or other defense attorney presumably has expertise?

But what’s the answer to this question: The defendant takes the stand and says: My attorney said that, don’t worry about it, you are not going to get removed.

And the lawyer says: Well, here’s my file; I have nothing in this whatsoever about having said anything about removal and I can’t remember the particulars of every single conversation I had with this attorney 5 — with this client, 5 years ago.

Stephen B. Kinnaird:

Your Honor, I think witness recognition arises in any number of Strickland claims.

And certainly I think that the courts can resolve that as to whether they found — find that he proved by a preponderance of the evidence that — that that statement was made.

John G. Roberts, Jr.:

Counsel, I suppose — before a guilty plea is accepted the district court judge is obligated to go through a colloquy to make sure the defendant knows the consequences of accepting the plea.

I would suppose if you prevail that that colloquy would have to be expanded to include something like: Do you understand the deportation consequences, if any, of pleading guilty?

Stephen B. Kinnaird:

No, Your Honor, it would not.

That’s a due process inquiry that is implemented by Rule 11 in the Federal court.

Antonin Scalia:

But that’s — that’s — with due respect, that’s ridiculous.

If it’s important enough to be required to be told to the defendant by his counsel, surely it’s important enough to be advised to the defendant by the court before the guilty plea is accepted as voluntary, which includes knowing — knowing the consequences.

Antonin Scalia:

It’s a very strange line you draw between what we are going to hold counsel to and what we are going to require the defendant to be advised of by the court.

Stephen B. Kinnaird:

I don’t think that’s true, Your Honor.

And the reason is that there are all manner of strategic types of advice that counsel give that are no province of the district court.

Anthony M. Kennedy:

Well, do you think it would be wrong for a district court to say, I want to be very careful and I’m going to add — let’s take Rule 11 as the standard.

It’s a Federal case.

I’m going to add to Rule 11.

I’m going to say, in addition to the Rule 11 questions that you’ve all answered, I want to make sure: Have you been advised about immigration?

Have you been advised about other collateral — do you think that would be error or inappropriate for a district judge to do?

Stephen B. Kinnaird:

It would not.

It would be — it would probably be a salutary practice in about half the States.

Anthony M. Kennedy:

The judge would not be exceeding his — his commission, his authority, to determine just whether this is knowing and voluntary in the sense of knowing — knowing the criminal consequences in the criminal system itself?

Stephen B. Kinnaird:

No, Your Honor.

My only point is it would not be required under Rule 11 or required under the due process clause.

Anthony M. Kennedy:

But it seems to me a careful district judge would have to do this if you prevail.

Stephen B. Kinnaird:

It would be a beneficial practice, but if the attorneys live up to their obligations to properly apprise the clients, then that is unnecessary, because the Brady voluntariness standard is predicated on an assumption that the defendant has been competently advised by his counsel.

Ruth Bader Ginsburg:

You were about to say that in many States the trial judge does inform a defendant who is an alien of immigration consequences.

Stephen B. Kinnaird:

It’s a much more limited advisement.

What they tend to advise is that, you may be subject to immigration consequences.

But they don’t actually make any determination.

And again, that goes to the difference between the function of the counsel and a court.

The court is not aware of the defendant’s circumstances.

It does no investigation of the case.

Counsel does, and counsel is the only one that actually advises you whether to accept the plea or not.

And that’s the key distinction between a court–

John G. Roberts, Jr.:

No, but that’s — I don’t see why that doesn’t apply to the more fundamental question about whether the district court has to inquire into the plea circumstances in any event.

I thought — your answer to Justice Scalia that, oh, well, all sorts of things can come up at trial and the district judge doesn’t have to inquire into those, I think proves too much.

It goes to — and it departs from your focus on the guilty plea.

That’s all the judge is inquiring about.

And I don’t know why that obligation doesn’t extend to a fundamental piece of information that would — that would under your theory make acceptance of the plea involuntary.

Stephen B. Kinnaird:

–Your Honor, I am not departing from the focus on the guilty plea.

Stephen B. Kinnaird:

The distinction is that the counsel has a duty to recommend whether the defendant accepts the plea or not.

And he cannot do that by simply focusing on, in isolation, on the criminal consequences.

John G. Roberts, Jr.:

Well, but what you are saying is he has got to tell him all the stuff that is necessary to make the decision to accept the plea knowing and intelligent, voluntary.

And I thought that was pretty much what the district court was doing when they have the colloquy.

That district judge wants to make sure the defendant knows what he is agreeing to.

Stephen B. Kinnaird:

No, Your Honor.

I think that the touchstone for the attorney’s advice is whether it’s in the interest of the client.

And his duty is to inform the client — and this is true of all lawyering — to inform the client of the legal risk of the recommended course of action.

And if the law happens to attach the most dramatic and severe consequences under a civil law, but to attach them to a conviction, and that consequence can only be averted in the criminal prosecution, I believe it is the duty of the criminal lawyer to advise.

But–

Antonin Scalia:

I would think that the duty of the criminal lawyer is to make sure that the defendant’s guilty plea is informed, it is an informed guilty plea.

That is the same obligation of the court in the colloquy, to be sure that it’s an informed plea.

And if you say it’s uninformed for counsel not to go into the myriad collateral consequences, then I assume it’s — it’s — it’s improper for the court not to go into those consequences.

They both pertain to whether the guilty plea is informed.

That’s counsel’s responsibility.

Stephen B. Kinnaird:

–Your Honor, I believe that counsel’s responsibility is to ensure that he makes an informed strategic decision whether to plead guilty.

That is no business of the court’s and I think that is the distinction.

Antonin Scalia:

Well–

John Paul Stevens:

May I ask this question: What do you think — if there is deficient advice by counsel under Strickland, what do you think you have to prove in order to get relief under Strickland?

Assume that advice is inadequate — to prove prejudice.

Stephen B. Kinnaird:

First of all, what you would have to prove on the competency prong is that the misadvice was about an issue that was material to the strategic decision to plead guilty.

John Paul Stevens:

Right.

Stephen B. Kinnaird:

At the prejudice prong, you would you have to prove that this defendant — and this is at the evidentiary hearing — would have gone to trial.

And in order to prove that, you have to show that a rational jury could have found beyond a — could have found reasonable doubt as to at least one element of the offense.

Ruth Bader Ginsburg:

And that would be what in this case?

Stephen B. Kinnaird:

In this case it would be knowledge.

And Kentucky has a special rule that does not permit willful blindness.

You have to show actual knowledge that it was marijuana in his truck.

And here you have a commercial truck driver who was found with Styrofoam boxes and wrapped brown cardboard boxes.

John G. Roberts, Jr.:

Oh, and also drug paraphernalia in the cab.

John G. Roberts, Jr.:

And was there some marijuana in the cab, too?

Stephen B. Kinnaird:

There was, yes, Your Honor.

The–

Antonin Scalia:

–I thought he was asked what was in the — what was in the containers and he said marijuana.

Stephen B. Kinnaird:

–No, Your Honor.

What the officer testified — and a key caveat here is that all we have is the prosecution’s charging facts and the officer’s testimony from the suppression hearing.

We don’t have the full record.

We don’t have the defense case.

We don’t have the defense version of events.

But what he testified was he was at — the officer said, when Mr. Padilla was asked what was in the boxes, he shrugged his shoulders and he said “Maybe drugs”.

John G. Roberts, Jr.:

But your point is an important one.

We don’t have the defense case.

Stephen B. Kinnaird:

Exactly.

John G. Roberts, Jr.:

But you don’t have the prosecution case either.

You don’t know exactly what witnesses they are going to call, what the strength of it is.

So you don’t know whether there is going to be prejudice or not.

When you see — it seems to me you have to make quite a prediction about what the case is going to look like to decide if there is prejudice, to decide if the fellow’s going to take the plea or not.

And I’m just wondering how you do that.

Stephen B. Kinnaird:

Well, Your Honor, I think in these kinds of claims prejudice is generally going to require an evidentiary hearing and that is why the Kentucky Court of Appeals sent this back for an evidentiary hearing.

John G. Roberts, Jr.:

It’s — it’s going to require, I guess, kind of a mini-trial to decide if the person would have taken the plea, you’ve got to know what the case — his case looked like, what the prosecutor’s case looked like, to see if it’s something he would have made — that would have made sense for him to go to trial or not.

Stephen B. Kinnaird:

I don’t think it would necessarily require a mini-trial, but that would be in the trial court’s discretion.

I would like to point out, though, that this was not an issue raised to the State Supreme Court.

And in cases arising from State courts, this Court applies the same rule to Respondents who bring forth an alternative ground in support of the judgment that it does to Petitioners.

It will not reach a question not passed on or presented below.

The only question here is the legal standard.

Your Honors, if there are no more questions, I would like to reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Dreeben.

Michael R. Dreeben:

Thank you, Mr. Chief Justice, and may it please the Court:

There is a fundamental difference between Petitioner’s claim that defense counsel has a duty to advise his client about all of the myriad collateral consequences that may stem from a criminal conviction, which the government does not think that a defense counsel has under the Sixth Amendment, and the claim that is focused more precisely on mis-advice given by defense counsel on a material collateral consequence to a defendant.

John G. Roberts, Jr.:

Mr. Dreeben, we learn in the first year of law school that the line between an affirmative act and failure to act is a difficult one to draw.

What if the lawyer says, you’re going to face 5 years, and the defendant says, is that all that’s going to happen to me?

And the lawyer says yes.

Is that a failure to advise or is that an affirmative misrepresentation?

Michael R. Dreeben:

Well, I think it’s certainly not an affirmative misrepresentation.

In context, what the defense lawyer’s purpose is is to counter the government’s criminal case.

That is what the Sixth Amendment provides a lawyer to do.

A government appears through its expert adversary.

The Sixth Amendment provides a counterweight to that in the form of a lawyer to deal with the criminal aspects of the case.

Anthony M. Kennedy:

Well, then you are saying that the more the defense counsel strays from his only professional responsibility, the more at risk the government is.

That seems odd.

Michael R. Dreeben:

What we think, Justice Kennedy, is that the defense lawyer has two relevant duties here.

One is to counter the government’s case, which means to provide advice to the defendant about his rights, the nature of the charges, the evidence, and the affirmative defenses that may exist.

And that is a task that is somewhat broader than the Court has in conducting a Rule 11 colloquy.

The Court does not go into strategic matters in a criminal case with the defendant.

Defense counsel must.

John G. Roberts, Jr.:

I think when we — when we decide there’s no right to counsel, like on collateral review, we don’t even look at what happened, right?

We don’t look and see whether the advice was ineffective, how bad the lawyer was.

The idea is if you don’t have the right at all, you don’t have the right to an effective lawyer.

Michael R. Dreeben:

That’s right.

John G. Roberts, Jr.:

Isn’t that right?

Okay.

Well, these — when you are talking about collateral consequences, you don’t have a right to counsel on — with respect to those collateral consequences.

I assume there’s — maybe there is — is there a right to counsel when you are facing a deportation proceeding?

Michael R. Dreeben:

Certainly not by virtue–

John G. Roberts, Jr.:

Okay.

Michael R. Dreeben:

–of the Sixth Amendment, Mr. Chief Justice.

And–

John G. Roberts, Jr.:

Well, then, if there is no right to counsel, why do we get into whether there is an affirmative misrepresentation or not?

Just like in a collateral — habeas context, we don’t care whether there is an affirmative misreputation — misrepresentation, because there is no right to counsel in the first place.

Michael R. Dreeben:

–I think it’s because the lawyer has an additional duty in the context of advising his client whether to take a guilty plea, and that is the duty to respect that the decision whether to plead guilty belongs to the defendant personally.

It’s not a decision that can be exercised by proxy by the lawyer.

And the lawyer’s duty to respect that, whatever advice he gives, the defendant must be able to make his own personal decision, imposes a concomitant duty not to interfere with or undermine the defendant’s ability to make an intelligent decision with the information he has.

So if a lawyer chooses when asked about collateral consequences, as many aliens will do: Will I get deported?

The lawyer is perfectly free to say: I am not your immigration counsel.

You need a lawyer to advise you about immigration.

I am your criminal lawyer.

And that’s perfectly fine.

But if a lawyer goes beyond that and says: Don’t worry about it.

You’ve been in the country so long, you are not going to get deported, with the understanding and the backdrop that this is an important factor in whether this defendant is going to decide to take a guilty plea or to go to trial, then the lawyer has used his professional skills to undermine a personal decision that belongs to the defendant alone.

Antonin Scalia:

What — what about mis-advice as to whether he will lose custody of his children, or mis-advice as to whether his truck which he owns will be confiscated by the government?

Michael R. Dreeben:

I would put them, Justice Scalia, all in the same general basket, which is to say, mis-advice on a legal matter of importance to the defendant that could skew his decision to plead guilty may be deficient representation under Strickland.

I think what–

John G. Roberts, Jr.:

Not the defendant, but a defendant?

In other words, I assume it’s an objective inquiry you would make rather than a subjective one?

Michael R. Dreeben:

–Well, objective in the sense that–

John G. Roberts, Jr.:

We assume, for example, that someone who is going to lose the custody of their children would regard that as important.

You don’t want testimony about this guy doesn’t care about the children, so it’s not a big deal to him.

Michael R. Dreeben:

–I actually think that would be quite relevant, because if any mis-advice did not cause the defendant to plead guilty because it was irrelevant to him, then the defendant should not be able to get in the door with an ineffective assistance claim.

And I also think if the defendant hasn’t manifested in some way that the particular collateral consequence is important to that defendant, then the lawyer certainly has no obligation even under professional standards–

John G. Roberts, Jr.:

Won’t — won’t your test result in a net loss to defendants?

I assume if this is adopted as a rule, the affirmative misrepresentation rule, then every lawyer is going to say what you said they should say: I’m here for the criminal case; I’m not telling you anything about anything else, as opposed to saying, sitting down and saying: Here’s what you need to know.

And in most cases we expect the lawyer to do a professional job.

If you have got an alien, he is going to tell him: Well, what — you know, this will cause you to be deported.

Instead, every lawyer now is going to say: I’m not giving you any advice about anything else.

Michael R. Dreeben:

–No, I don’t think that it will lead to sort of defensive malpractice type of counseling where lawyers do not do the job that they feel that they should do, and experience tends to support that.

The rule right now in ten Federal circuits is there is no duty to advise about collateral consequences.

Seven Federal circuits have a rule that affirmative mis-advice about collateral consequences can support a claim.

Stephen G. Breyer:

Why — why do you have a rule?

I mean, I thought — I looked up six cases, and they all say, Strickland cases in this Court, that you look at all the circumstances.

Stephen G. Breyer:

Now, what I think is radical on your part, but tell me it isn’t, is not what the rule is, but that you want one.

I thought the government’s view normally was the same as we — what’s the exact words — did the conduct of the lawyer meet professional — prevailing professional norms?

And then we look to see, if it did not, whether that led to a situation where he would not have pleaded guilty but for the failure.

Okay?

Now, the world is filled with 42 billion circumstances.

If we agree with you, we will have set in motion the great legal rule machine.

And there’s nothing better than lawyers spitting off rules.

And we will be here from now until — good, we won’t have any docket problem, because what we’ll be doing is reviewing rule after rule after rule after rule.

So why has the government, I think for the first time, maybe not, told us to abandon Strickland’s approach and start spinning off rules?

Michael R. Dreeben:

Justice Breyer, we have not abandoned Strickland’s approach.

What we have focused on is, what is the Sixth Amendment right in the first place?

The Sixth Amendment right is not a right to have a State-provided lawyer who will advise you about child custody or about deportation or about–

Stephen G. Breyer:

No, no.

But it’s easy — I mean, you know, one thing we are very good at here is making up hypotheticals.

So I imagine it wouldn’t be that tough for me to think of a hypothetical where everyone knows this 90-year-old individual who has actually never set foot in the country that he came from, and everyone knows that if he pleads guilty to this chewing gum offense where they have virtually no evidence, he will be sent back, at age 90, to that country.

I would say any lawyer would say, be careful, because if we plead guilty, back you go, on the stretcher since you can no longer walk.

See, all I did was spin out a hypothetical.

And the reason I can spin those out and why we have the Strickland rule is pretty clearly that you shouldn’t have sub rules here because life is more complicated than rules tell us.

Just look to see prevailing norm and did it cause the harm.

And that’s why I am back to my question: Isn’t this the first time the government has asked us to adopt rules under Strickland rather than what it says–

Michael R. Dreeben:

–I think, Justice Breyer–

Stephen G. Breyer:

–which is “case by case”, underlined, italics, repeated in the cases?

Michael R. Dreeben:

–Justice Breyer, I think that the fundamental point is that this is the first time that the Court has been asked to adopt a rule under Strickland that would require a lawyer pursuant to Sixth Amendment norms to give advice that pertains–

Stephen G. Breyer:

No, no, they are not asking us to have a rule.

What he is saying is, look to the individual case and ask in this case, did the — at least that’s what I heard him; he’s in charge of his own case.

But I heard him say, look to this case, and in this case it falls below prevailing norms for a lot of reasons.

Michael R. Dreeben:

–Well, Justice Breyer, the — the lower courts that have looked at this I think have correctly recognized that there is a distinction between saying that Strickland is a case-by-case inquiry into lawyer competence and saying that Strickland requires the lawyer to provide advice about collateral consequences that are not the criminal–

Samuel A. Alito, Jr.:

But what are you going to do in a situation where the defendant is concerned about removal — the removal consequences?

And this is — let’s say this is a case out in some rural jurisdiction, you have got a public defender or a retained attorney, and the — the — the attorney is — you know, provides advice based on the criminal law consequences and the client says: Well, I’m also concerned about the immigration consequences.

And the lawyer says, well, immigration law is very complicated and I’m not an expert on this and I’m not going to tell you.

Samuel A. Alito, Jr.:

And so the client says — and the lawyer says, if you want to know about that you’ve got to get a deportation — you have got to get an immigration lawyer.

And the alien defendant says: Well, I have no money; that’s why you were appointed to represent me.

How am I going to get advice on the immigration law issue?

And the lawyer says: Well, that’s just too bad for you.

And that’s the line you want us to draw?

Michael R. Dreeben:

–Well, Justice Alito, I don’t think that he has a right under the Sixth Amendment to a lawyer who will counsel him about the potential immigration consequences of a guilty plea.

That is not what the Sixth Amendment was designed for.

Antonin Scalia:

What are the consequences to the lawyer?

I mean, let’s assume you are a public defender, and you are confronted with this situation.

Is it — how — how much skin is it off your teeth if you provide the advice, even though you are uncertain, and the advice turns out to be wrong?

What happens to the lawyer?

Michael R. Dreeben:

I don’t know that anything happens to the lawyer, Justice Scalia.

Antonin Scalia:

So, what incentive is there to withhold uncertain advice?

Is there any incentive at all?

Michael R. Dreeben:

Well, I think that–

Antonin Scalia:

I mean, the worst that can happen is your client will get off.

Michael R. Dreeben:

–There is the–

Antonin Scalia:

He will make a guilty plea and afterwards it will be set aside.

Michael R. Dreeben:

–There is a professional incentive to provide advice where you are competent to provide advice and not to provide it where you are not competent.

And I think that the focus on immigration consequences illustrates two things:

One is this is an extraordinarily complicated area of the law, where it is very difficult to give advice.

And for a lawyer to be expected to master not only the criminal aspects of the case but also the immigration aspects of the case will only tend to divert attention from what the lawyer is really there to do, advise–

Anthony M. Kennedy:

Well, why shouldn’t we just adopt an amendment to Rule 11 in which the judge says, any collateral consequences with respect to your plea are not the concern of this court and will not be grounds for setting aside this — this — this plea?

Michael R. Dreeben:

–Well, the former part is certainly something that the Court could in its rulemaking capacity do.

The latter part is a Sixth Amendment question.

And I think it’s highly notable that the rules committee for the criminal rules has twice considered whether to amend Rule 11 and is going to consider it again contemporaneously with this case, to require the judge to say to an alien defendant, you may want to take into account removal consequences of a criminal conviction.

In other words, there are rule-based ways to address some of the concerns that Justice Alito raised without constitutionalizing a new area of collateral consequences that would impose new duties that actually would divert the lawyer from his criminal law function, whereas the mis-advice line has not created those problems.

And as I started to say earlier, the fact that ten Federal circuits have said no duty to advise on collateral consequences while seven have recognized that mis-advice on collateral consequences can provide relief, has not led to a series of difficult Strickland hearings that are unmanageable.

Justice Alito–

John G. Roberts, Jr.:

How do we know that?

Samuel A. Alito, Jr.:

What about the situation where the attorney says nothing about — I mean, removal is — is out there as — as a real possibility, but it just doesn’t occur to the — the defendant and the attorney doesn’t even mention, you know, you might — you might want to think about the removal consequences of this?

Michael R. Dreeben:

–Then the client does not get relief for two reasons.

One is because we believe there is no duty to give that advice.

But even if the Court disagreed with me on that, such a defendant could hardly show prejudice because he knew that he went into his guilty plea with an uncertainty, at best, about removal.

And I think it would be very difficult to show what he should have to show to establish prejudice: First, that subjectively he would not have pleaded guilty had he been given correct immigration advice; and second, that a reasonable defendant would have had a basis not to plead guilty, because if the defendant is going to be convicted after a trial in any event the same collateral consequence is going to ensue.

The defendant will not evade the collateral consequences of removal if the defendant was going to be convicted at a trial anyway.

Ruth Bader Ginsburg:

How do you — how do you know that?

In this case, Mr. Kinnaird told us the defendant might have preferred to go to trial because he had this defense that he didn’t know what was in the packages.

Michael R. Dreeben:

Well, I think courts will evaluate that kind of a claim just the way they evaluate any other Strickland claim and decide whether there was any reasonable probability that such a defense could have prevailed.

Antonin Scalia:

After — after a mini-trial, which deprives the government of — of its whole benefit from the guilty plea.

Governments accept guilty pleas in order to avoid the time and expense of going to — to a trial.

And here you have to go back and find out what the evidence would have been, so that the court can make the decision you say is so easy.

Michael R. Dreeben:

This is the typical regime that the Court has dictated under Strickland, and it has not proved unmanageable in the courts that have adopted the limited mis-advice rule that the government supports.

John G. Roberts, Jr.:

Thank you, Mr. Dreeben.

Mr. Long.

Wm. Robert Long Jr.:

Mr. Chief Justice, may it please the Court:

In Hill v. Lockhart this Court again focused on voluntariness and said that voluntariness of the plea depends on counsel’s advice and whether that counsel advice is in the range of competence of the attorneys in a criminal proceeding.

Again, the focus was on voluntary.

And in Brady, this Court described a voluntary plea as

“a plea entered by one possessing full knowledge of direct consequences. “

Thus, reading the cases together, it would appear that the defendant need to have only knowledge — full knowledge of direct consequences, and advice of counsel is just a tool to ensure that.

Sonia Sotomayor:

Counsel, a plea is something more than: I’m guilty.

It is a strategic decision not to put the government to its burden of proof.

Your definition of voluntariness suggests that there is only one component to it, do I know what my rights are, as opposed to, do I know what they are and making an informed decision to waive those rights.

Your articulation of the rule leaves out the second component: Am I making an informed decision to waive those rights?

Wm. Robert Long Jr.:

Well, I think under this Court’s precedent the informed right is to know what those rights are, what is the weight of the evidence against you, and to make those strategic decisions.

But that–

Sonia Sotomayor:

But how do you do that?

I mean, your adversary’s argument is in their particular case — and I know that you dispute this — there is a defense that could win at trial.

And the defendant comes in and says: Okay, what are my choices?

Sonia Sotomayor:

I go to trial and I may serve a longer sentence, but I don’t go to trial, I may serve that — I do go to trial and I serve that longer sentence, but it’s here in the U.S. and not in my home country, where I might starve to death.

I think I will stay here and take that risk.

You’re — you’re sort of ignoring that component of information in terms of informing the strategic choice of whether to take the risk and go to trial.

Wm. Robert Long Jr.:

–Well, we are not particularly ignoring it.

We are saying ultimately under the Sixth Amendment what is prudent or appropriate may not necessarily be what the inquiry is, but what is constitutional mandated.

And what is constitutionally mandated here is to provide the adversary to waive the — put the Commonwealth’s or the State’s proof — to weigh it, to advise about it.

Sonia Sotomayor:

Well, then that goes to the Solicitor General’s position, which is: You may be right, an attorney doesn’t have to give more information than what’s necessary, but doesn’t the calculus change when the defendant says, this is important to me; give me accurate advice, if you are going to give me advice?

Wm. Robert Long Jr.:

Well, the calculus may change ever so slightly, but I think the difference is, is that mis-advice is still — is not materially different than the failure to advise.

Ultimately the — the defendant still is left to operate under a misapprehension.

And the States are more than able to police this kind of conduct and in fact the States have.

I think it’s approximately 27 States that do add to their, quote, unquote, 11> [“] and — and require some sort of inquiry by — by the courts.

And ultimately, it’s the States or the individual courts through their rulemaking process or through legislative prerogative whereby this could better, best be addressed, rather than constitutionalizing mis-advice and trying to draw this really hard distinction between no duty and the duty to advise.

Stephen G. Breyer:

Suppose a — a client comes in.

You are a criminal lawyer and you learn the facts of the case, and it turns out that, after listening to the facts, you think he is being charged with a fairly minor offense, a year maybe max, and he tells you: You know, I have a family here, I’ve — I’ve — you know, he tells you this story where it is quite apparent to you that if he pleads guilty back he goes, where he might be killed and so might his family.

Just sit there and say nothing?

What would you do?

Wm. Robert Long Jr.:

Your Honor, my — my personal — personal obligation at that point would be to try to answer the question.

But again–

Stephen G. Breyer:

What would you do?

I’m asking you, would you tell him?

He doesn’t know about the immigration law.

He thinks it’s just a year.

You yourself have learned that he probably will be killed, as will his family, if he pleads guilty.

Would you tell him that?

Wm. Robert Long Jr.:

–If I possessed that knowledge, yes, Your Honor.

Stephen G. Breyer:

Of course you would.

And do you think of any — can you think of any decent lawyer who wouldn’t?

Wm. Robert Long Jr.:

No, Your Honor.

But–

Stephen G. Breyer:

No.

Stephen G. Breyer:

Okay.

Then why have you — in this case, if they didn’t tell him, why has not such a lawyer failed to meet prevailing professional norms in my hypothetical?

Wm. Robert Long Jr.:

–Well, Your Honor, the — first of all, the prevailing professional norm or ethical obligations that have been enacted in Kentucky and in most States provide very general obligations and they do not actually speak to this kind of situation.

Stephen G. Breyer:

I’m not saying whether — you just told me that any lawyer worth his salt in my example of course would tell the client, and — in my case.

And so I just asked, then has a lawyer who has failed to do so not met the prevailing professional norm?

That has nothing to do with ethics or not ethics; it’s how lawyers behave.

I don’t see how you avoid answering that question yes.

Wm. Robert Long Jr.:

Well, I don’t know that it’s necessarily a prevailing norm.

It’s a question of–

Stephen G. Breyer:

You just told me everyone would do it, everybody’d do it.

I don’t know what a norm is otherwise.

Wm. Robert Long Jr.:

–Pardon me, but it’s a question of morals here to decide whether or not to offer that advice.

Now–

Antonin Scalia:

Well, but assuming it’s a norm and that all lawyers do it, including those that know diddly about immigration law, the norm is to give bad advice.

And here — here the norm was met, right?

[Laughter]

Wm. Robert Long Jr.:

–Yes, Your Honor.

And in fact it’s really unclear what advice was given because, as my opponent has mentioned, there was not an evidentiary hearing, so what was actually said is unclear.

But I feel like the — that mis-advice distinction made by the Solicitor General’s office does–

Stephen G. Breyer:

Before we get to the misadvice, to put every — dot every i, every lawyer would do it in my case; that’s a professional norm.

If a lawyer fails to do it, he hasn’t met the professional norm.

And a rule that’s absolute would overturn Strickland in that respect, because Strickland says if you fail to meet professional norms you are guilty of inadequate assistance of counsel, okay?

So Q.E.D. Now what is wrong with what I just said?

Wm. Robert Long Jr.:

–Well, Your Honor, I would have to disagree a little bit.

I believe Strickland is not quite that expansive.

Strickland talks with regard to professional norms and ethical standards as guides in determining competent counsel, and does not set them as hard, fast rules.

And in–

Antonin Scalia:

I thought the point is that — I thought your point was that — that Strickland does require professional norms to be observed, but it is professional norms regarding advising a defendant as to the trial consequences of his plea as to those matters that are involved in the prosecution, and not as to collateral matters.

Isn’t that your point?

Wm. Robert Long Jr.:

–Yes, Your Honor.

Antonin Scalia:

Those are the only norms that are relevant, what norms oblige counsel to advise a defendant regarding trial matters.

Wm. Robert Long Jr.:

Correct.

And under Strickland — under the Sixth Amendment, criminal defense attorneys must focus on issues of guilt and innocence and penalty.

Anthony M. Kennedy:

Well, everyone at the counsel table I assume agrees that the plea has to be voluntary.

But voluntary has various meanings: number one it is not coerced or forced.

Would — isn’t your argument that voluntary does not include being fully informed?

Wm. Robert Long Jr.:

Our point would be not be fully informed about every possible consequence which would be in — in–

Anthony M. Kennedy:

Well then, about important collateral consequences.

Are there — are there any cases that address this point one way or the other?

That is to say, the extent to which voluntary includes the component of being informed about major consequences, significant consequences of the plea?

Can I go anywhere to read a discussion of this?

Wm. Robert Long Jr.:

–Well, Your Honor, that’s kind of the problem, I believe.

The cases that — that do address this issue seem to focus on voluntariness and they focus upon the definition this Court espoused in Brady, and they uniformly come up with the — with the conclusion that no affirmative duty is required.

They then jump from that position to a — to a position where misadvice somehow changes the inquiry.

They fail to focus again on voluntary, where — meaning full knowledge of direct consequences, and instead reached out to these kind of results-driven opinions that are kind of fueled by this feeling of — of unfairness.

Ruth Bader Ginsburg:

Mr. Long, you said that this is a collateral consequence.

Therefore the lawyer has no obligation to advise the client.

But what was remarkable about the case that you rely on, Hill v. Lockwood, is the Eighth Circuit used the distinction between direct and collateral.

In this Court, the opinion said nothing about direct or collateral; it just asks the question under Strickland, and it held that Strickland does apply to challenges to guilty pleas based on ineffective assistance of counsel.

But it — staring the Court in the face was this direct versus collateral, and the Court was totally silent on that.

It didn’t consider it relevant to its determination.

Wm. Robert Long Jr.:

You’re — you are correct, Your Honor.

And again, that silence has then led the circuits to develop a rule.

And the predominant rule is that a voluntary plea following this Court’s other decisions which it has — where it has spoken, that the plea need only be entered by one possessing full knowledge of direct consequences.

Samuel A. Alito, Jr.:

What about the situation where the — the defendant would have made sacrifices and obtained competent immigration advice, were it not for affirmative misrepresentations by criminal defense — by criminal defense attorneys?

The criminal defense attorney says don’t worry about it, you are not going to be removed.

And the defendant says, you really sure about that?

Because if you are not, you know, my relatives are getting a second mortgage on the house and we are going to go hire an immigration lawyer so we can be absolutely sure about that — this.

And the criminal attorney says I’m an expert on this, I’ve just had — you know, six hours of CLE on immigration law, and in reliance on that faulty advice the defendant pleads guilty and finds himself facing removal.

Wm. Robert Long Jr.:

Well, following the logic of the circuits and of this Court’s guidance in Brady, again, the inquiry for voluntariness is on direct consequences, so it would not rise to the Sixth Amendment claim.

Wm. Robert Long Jr.:

Counsel may, nonetheless, may be — I’m not a very good counsel in that situation.

However, as it was pointed out earlier, sometimes, criminal defendants risk ordinary error with their representation, and in fact, this Court has recognized that in numerous cases.

In U.S. v. Ruiz, this Court kind of compiled a group of cases, including Brady, McMann, and Tollett, in which the defendant did, in fact, operate under misapprehension with regard to the things that we most often consider strategic, more direct obligations of the trial.

They — I think, in Brady, they misapprehended the quality of the evidence and the penalties and such, and this Court ultimately found that, in all those cases, there is a certain amount of ordinary error that is at risk when you are pleading guilty, that you risk a certain amount of — that your counsel may not have made the best strategic decision.

John Paul Stevens:

May I ask you this question: Supposing this wasn’t a drug crime — a sexual abuse of a minor, which would lead to all sorts of restrictions on where the defendant could live and report and reside and the like, would that be a collateral consequence or a direct consequence the advice on that?

Wm. Robert Long Jr.:

I believe, Your Honor, that would be a fine line, that it would technically be a collateral consequence under the classic definition of collateral consequence, that being whether or not it falls under the control or discretion of the sentencing Court.

John Paul Stevens:

Even though the consequence is something required by the law of the jurisdiction imposing the criminal penalty, it would still be collateral?

Wm. Robert Long Jr.:

The popular definition — or the most common definition focuses on whether it falls under the discretion or power of the sentencing court.

In those jurisdictions that have sexual offender registries, it is not a — something that is discretionary with the Court.

It is through the executive agency that that is enforced, just like parole, also just like your right — to lose your right to vote — losing your right to bear arms.

All of those things happen automatically by action of law, yet they remain collateral because they do not fall under — with — under the discretion and power of the sentencing court.

If I could remind you all — I apologize for putting “you all” — but — my being from Kentucky is showing a little.

[Laughter]

The modern rules of professional conduct are very, very broad, and there’s — I don’t believe that it could be demonstrated that they were actually violated here, even under the alleged conduct, the prevailing norms that the ABA puts forth in its brief or the criminal justice standards are aspirational.

They — they focus more on what–

John G. Roberts, Jr.:

I thought you told Justice Breyer that any good lawyer would give this advice to a client?

Wm. Robert Long Jr.:

–I said — in response to Justice Breyer, in the extreme circumstances, again, it would be my opinion — not necessarily the opinion of this Court or necessarily would fall under the Sixth Amendment, but that, if you absolutely knew and that a — a severe collateral consequence is of great importance, you should explore it.

The misadvice rule that the U.S. government kind of puts forth as the hybrid position, it does — I do believe creates these collateral consequences as land mines to be avoided.

I think it does, in fact, encourage criminal defendants to be — or criminal defense attorneys to be silent in situations where they would, otherwise, be more free in offering that advice.

And, again, offering the advice does not necessarily raise it to Sixth Amendment purview because, again, there are any number of things that are going to come up in that attorney-client relationship.

Ruth Bader Ginsburg:

We are talking at a highly general level, but what’s facing us — this case, is there are certain crimes — an increased number of crimes that are classified as aggravated felonies, where the rule is, if you are convicted of an aggravated felony, you are out of the country after you serve your time.

There is nothing mysterious about that.

There is nothing intricate about making that determination.

So why wouldn’t a lawyer whose client is an alien have an obligation, when there is an aggravated felony as the charge, to say: This will be the consequence?

Wm. Robert Long Jr.:

Well, I think, in this case, we are focusing on the obligation created by the Sixth Amendment, and the Sixth Amendment obligation refers to the criminal proceeding and the criminal prosecution and then to aid in the defense.

Like the — and we would agree with the Solicitor General there, that the purpose for the criminal attorney in that situation is to counteract the expert of the commonwealth or the state.

It is to ensure the fair and just determination of guilt, not to advise on collateral matters, such as deportation, child custody, and the like.

Ruth Bader Ginsburg:

You keep insisting on the collateral, although you recognized it in Hill v. Lockhart, the Court did not draw that line.

Wm. Robert Long Jr.:

Well, ultimately, in this Court, it did not — it didn’t draw any line.

It was silent on that point, and given the way the lower courts have reacted in drawing the direct and collateral line, I think that’s kind of where we have to go.

Wm. Robert Long Jr.:

That is what the rule is of the lower courts and as the rule has — has been applied throughout the nation, and we are testing whether or not that rule makes sense, essentially.

And I think, ultimately, there is a potential problem in treating deportation differently than other collateral consequences.

To do so, I believe, at one point in Mr. Kinnaird’s argument, he does make the point that deportation, because it is of such importance or that — that it should be treated differently.

But that is to suggest that it’s so important in all situations and it is more important than collateral consequence that may affect citizens.

Citizens will lose the right to vote.

They will lose their right to jury service, perhaps lose custody of their children.

And there is no principled reason to really treat deportation differently.

If the reason to treat it differently because it is viewed as so severe, it’s truly been a subjective inquiry as what collateral consequence is severe to this client.

And it ultimately prefers a class of citizens — those who are non-citizens — over citizens who may have just as much important place on collateral consequences they face.

Moving real quickly, if I could just touch briefly on the prejudice prong of Strickland.

First, I’m not — well, I hesitate to say this a little bit, but it’s not completely apparent on the record that counsel’s performance was, in fact, deficient.

He did not misadvise with regard to any direct consequence.

Padilla does not allege that he misunderstood any of the rights he was waiving and at least — and up until his reply brief, made no bones about the fact that he was guilty.

And, in fact, that solemn and sworn admission of guilt should not be lightly undone.

Ruth Bader Ginsburg:

Well, the defendant might say, I have been in the United States for 40 years.

I have a family.

I would rather take my chances with a jury and get put away for a longer time because at least I’ll be in prison where my children can visit me.

Wm. Robert Long Jr.:

Well, Your Honor, again, that is a risk that is taken when asking questions of your counsel.

It would not necessarily fall under the Sixth Amendment requirements.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Kinnaird, you have four minutes remaining.

Stephen B. Kinnaird:

Thank you, Your Honor.

Three quick points.

In Hill, the Court did expressly hold that Strickland applies to the collateral consequence of parole eligibility, so it is not just for — for trial consequences.

And, secondly, Brady is predicated on an assumption that there is competent advice on a strategic decision–

Antonin Scalia:

But I’m not sure the parole eligibility could qualify as a collateral consequence.

Stephen B. Kinnaird:

–It certainly would under the Kentucky test, Your Honor, because it depends on such factors as the actual sentence, the prior convictions of the defendant.

Those are not things that are known at the pre-colloquy–

Antonin Scalia:

It goes to the sentence.

It goes to what the sentence will be, which is certainly part of the trial.

Stephen B. Kinnaird:

–Well, under Rule 11, at least prior to the abolition of parole, there was no advisement in the district courts — the federal district courts on that.

The second point is that it is predicated on competency, and so the standard is not voluntariness when you are in the Sixth Amendment, you go to the Strickland standard of incompetency, and then prejudice within the criminal prosecution, I emphasize as what we have here, the forfeiture of a jury trial right.

We are not talking about prejudice outside of the criminal prosecution.

And, finally — well, we agree with the government that the misadvice rule has proven perfectly manageable in the 30 or so jurisdictions in which it has been endorsed.

There also have been a handful of jurisdictions–

Antonin Scalia:

Why do you say that?

Where there has not been a revolution or what?

What — how do you know?

Stephen B. Kinnaird:

–Well, Your Honor, I mean, there is — I think that there are something like 700 claims over a decade or something like that.

So we don’t know, but — there has been no evidence, that we are aware of, that the courts are openly burdened by these, and even in jurisdiction that is apply the broader rule, we, again, are not aware of any flood of mini-trials.

John G. Roberts, Jr.:

What — what is your answer to the situation that I think has been hypothesized of the lawyer — the defendant asks him, what are the deportation consequences?

And the lawyer says, I don’t know.

I’m not a deportation lawyer.

I’m a criminal lawyer, but my best guess is that you are all right.

What happens there?

Stephen B. Kinnaird:

Your Honor, I think those would be adjudicated under Strickland, and, remember, Strickland–

John G. Roberts, Jr.:

So you can make a claim when the lawyer disavows the knowledge on the question?

In other words, he is trying to be helpful, but he also warns the defendant.

Stephen B. Kinnaird:

–Yes.

Under the broader rule, you would have a Strickland claim.

It would be very hard to prevail on that because you would have to show that it was unreasonable for him not to investigate the–

John G. Roberts, Jr.:

“To investigate”?

So even if he doesn’t know deportation and the client asks him, he has to investigate that?

Stephen B. Kinnaird:

–He has to do whatever is required by competent representation.

Samuel A. Alito, Jr.:

Well, just to be–

Stephen B. Kinnaird:

That’s the limited standard.

Samuel A. Alito, Jr.:

–Just to be clear about the scope of your argument — maybe you could just clarify.

Which, if any of the following, would you not put in the same category as advice about immigration consequences: Advice about consequences for a conviction for a sex offense, the loss of professional licensing or future employment opportunities, civil liability, tax liability, right to vote, right to bear arms.

Are they all in the same category?

Or do you — do you draw a line some place?

Stephen B. Kinnaird:

Your Honor, our principal position is that the Court should not draw lines.

That’s the whole purpose of Strickland.

I would say, in the vast majority of cases, for example, with the right to vote, the chances that that is going to be material to a plea decision by a defendant, especially one facing significant incarceration, are probably almost nil, but this should be left to the — to the traditional Strickland inquiry on a case-by-case basis.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.