Andrew Lavoott Bluestone at  New York Attorney Malpractice Blog sent me this New Jersey decision, McKnight v. Public Defender, that has a little something for everyone.  The gist of the decision has to do with a relatively unusual situation, criminal legal malpractice, and when it accrues for statute of limitations purposes.  That’s the boring part (for me), but how this case reaches that point is fascinating.

It seems that Garvin McKnight was indicted for “a dispute” (whatever that means) with his girlfriend and was represented by Kevin Walshe of the Public Defenders office.  Upon Walshe’s advice, McKnight pleaded guilty to third-degree aggravated assault in at the end of July, 2000.  Walshe, apparently, was unaware of one little detail with McKnight, that he was a citizen of the beautiful Isles of Trinidad and Tobago, though he had been in the United States since he was 5 years old.

In September, McKnight received a letter from INS informing him that he had won an all-expense paid one-way trip back to Trinidad.  He wasn’t thrilled.  Six days later, he moved to withdraw his guilty plea, which the judge denied.  This was a very hot and disputed issue at the time, following the huge expansion of deportability in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 

The problem then was that anyone not a citizen was subject to deportation, on top of any other punishment that might be meted out, for a conviction of a felony.  While it was unclear whether they would, in fact, be deported, and whether the states would cooperate with INS in alerting them to the conviction of immigrants (note that they could be perfectly legal immigrants who have been in the United States since a minute after birth), this presented a significant problem in criminal prosecutions.

Problem number one was that a plea to a relatively innocuous sentence could produce disastrous collateral consequences.  In other words, a defendant could get probation for a minor drug possession felony, and end up being shipped back to the motherland, where his family left when he was two week old, and separated from his wife and 17 kids. 

On the other hand, the fact that a plea produced these ridiculously severe consequences had nothing to do with the fact that the defendant was still charged with a felony and had the option of pleading or going to trial.  If he refused to accept the potential collateral consequences of deportation, and the case against him was indefensible, then he had a lengthy prison stay to look forward to and then deportation.  It’s not like there was a better option somewhere else.

But back to McKnight.  Walshe did something a little different here.  In New Jersey, defendants fill out “plea forms” at the time they plead guilty.  The form states that there are collateral consequences to pleading guilty, and McKnight’s form circled “N/A”.  On his motion to withdraw his plea, the judge concluded that the collateral consequences did not support withdrawal of the plea. 

This was the common reaction at the time, and there was plenty of disagreement about whether, and who, should inform pleading defendants about collateral immigration consequences.  Criminal defense lawyers did not want the burden to be on their shoulders.  Court’s didn’t want it.  Nobody wanted to be the one to give the bad news, and essentially become responsible for something that was outside their control, would gum up the works and for which no definitive answers were available. 

McKnight then sought post-conviction relief based on ineffective assistance of counsel.  An interesting aside is that he remained in prison in New Jersey (itself, a heightened punishment that no one should have to endure) because the beautiful Isle of Trinidad didn’t want him and wouldn’t take him.  An evidentiary hearing followed, where Kevin Walshe testified on McKnight’s behalf.

Walshe stated that he neglected to ask McKnight if he was a citizen, and circled the “N/A” on the form himself without discussing it with McKnight.  He said it was “plea day” and he was backed up with pleading defendants.  In the busy, noisy holding cell, he tried to get through the form as quickly as possible and just assumed McKnight to be a citizen.  In the best tradition of the criminal defense lawyer, Walshe fell on the sword and conceded that his affirmative acts deprived McKnight of the opportunity to know about and consider the impact of deportation.

Based upon Walshe’s admission that he not only failed to inform McKnight, but effectively precluded McKnight from knowing of the collateral consequences by his assumptive help, the court vacated the conviction.  McKnight then pleaded guilty to some inconsequential offense with a fine of $155 (noting that he had already spent more time in prison than he would have but for the Immigration hold.

And then, McKnight sues the public defender for legal malpractice.  This portion, the point of the decision, is tedious, so I’ll let Andrew deal with the accrual issues.  But the lessons here are many for the criminal defense practitioner:  Don’t assume.  Don’t rush through someone else’s life, no matter how busy you are and how many other people are waiting for you.  Do take the weight for you mistakes, and when you screw up and do something that hurts your client, be man enough to admit it.  And finally, no good deed goes unpunished.  That’s why they pay us the big bucks.