Superior Orders

Do you know what’s even more difficult than dealing with someone who is outraged? It’s even more difficult to deal with someone who refuses to acknowledge that they are outraged and thus acting outrageously.

No, these are not clients that I’m talking about. This peculiarly irritating behavior only comes up when prosecutors find out that my client is an immigrant.

Unlike the prosecution, I don’t have the luxury of ignoring the immigration consequences that my clients face; the Supreme Court’s decision in Padilla v. Kentucky warns that my representation will be constitutionally defective if I fail to warn my client what the Feds will do to him because of any plea bargain. Immigration laws are barbed with hidden hooks that make someone deportable or excludable from the United States based on a single criminal case: domestic violence, substance abuse, and receiving a sentence of 1 year or more are all bases for deportation regardless of the length of time my client has been in the U.S. This is true whether they came willingly or were brought here by their parents, and whether or not they have any waking memories of their “home country.”

Thus, I’m obligated to ask the DA to make concessions that may minimize my client’s immigration consequences without denying the DA the punishment or charge that they want. Examples of these include:

  1. Asking for a sentence of 364 days in cases where the DA asks for 1 year. Believe it or not, this makes a difference in how the immigration courts classify my client’s conviction.
  2. In drug cases, asking the DA to amend the charging document so that it does not state the specific substance my client possessed.
  3. Offering to have my client plea to what may be a more serious charge because, for whatever reason, the immigration laws will look on it more kindly. For example, in a domestic violence case where your client hits his wife and then demands that she not call the police, he may be better off in immigration court after having pled to witness intimidation instead of a domestic violence charge.

These differences may seem minor, but they mean the world to my clients. In contrast, none of the examples above cost the DAs anything at all. However, my requests for these types of concessions are almost always denied.

My best example: a client of mine who had been in the U.S. for more than twenty years and the father of three American citizens, fell on hard times when his bedroom furniture store went under. A friend told him that he could make ends meet by selling small amounts of cocaine. Unbeknownst to him, this same friend was working as a “confidential informant” for the local narco cops. As a result, the only drug deals that this client ever completed were to undercover cops posing as buyers. This happened three times, resulting in three sales charges.

This client languished in custody for many, many months. He did not want a trial, because he had no defense. However, he did not want to plea because he knew that he would be deported back to the failed state from whence he came and never allowed to return.

I asked the DA for a number of comparatively minor things. The DA wanted a sentence of three years for cocaine sales. I offered three consecutive terms of 364 days (one per count) and requested that any reference to the specific controlled substance be deleted from the charging document.

Now, at this point, I must acknowledge that there are many (some of whom may be reading this) who would say that a cocaine dealer should not be given any mercy from the immigration authorities and should face the full consequences of their behavior. I understand why some would say that. And if the DA had simply responded to me by saying, “No, I want your drug dealer client to be deported,” I wouldn’t have been nearly as angry as I was.

What infuriated me was the sanctimonious, yet cowardly pretense of hearing the DA tell me he did not want my client deported, but that he had “no choice” in his actions. The first line of defense for a DA who does not actually want to take responsibility for a situation is to blame his or her supervisor. Again, my client is my ultimate boss; the DA has no client, and so their supervisors often fill that role. And it seems that an implicit part of a deputy district attorney’s job is to protect their supervisors from sounding too obvious when taking actions that say, “we want your client deported.”

I think this is why the response I got for this particular client sounded something like this:

Well Norm, I’ve asked my supervisor. I told my supervisor that your client has been here since before he could drive, and that his entire family are American citizens. But based on the facts of this particular case, we just don’t see a reason to treat your client differently from how we would treat a citizen.

I wished that he would have simply cut the shit and just said that they knew that my client would be deported and that they thought he and his family deserved it for slinging dope to an undercover cop. Because my client was, in fact, going to be treated differently for being a non-citizen; the trivial changes that I proposed would have made it more likely that he would be treated like a citizen. Refusing my proposal under the pretense of treating people fairly was, at best, slight-of-hand and, at worst, transparent bullshit.

Take ownership of the motives for your actions so that they can be discussed openly. That’s what is supposed to happen in a democracy, right? Apparently not, if you don’t have the right papers.

Respectfully Submitted,

Norm DeGuerre

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