We Criminal Defense Lawyers often advise our permanent resident clients to get their citizenship. We “know” that at least if they get in trouble, they won’t be deported. We ask if their citizenship status before we advise them on a plea and if the client has already been naturalized, we breathe a sigh of relief. Wrong. Wrong. Wrong.
The lawyer for Carlos Noe Gallegos made this mistake. Mr. Gallegos was indicted for a sex offense with a potential punishment of life in prison. He told his lawyer he was a naturalized citizen. His lawyer admitted that he did not know much about immigration law, but because Gallegos was a citizen should not be affected by the criminal proceedings. Gallegos had already spent two weeks in jail and didn’t want to go back. He accepted the prosecution’s plea offer of deferred adjudication with six years’ community supervision and a $1000 fine. His lawyer told him this was a great deal because Gallegos would not have to serve any prison time.
An aside on deferred adjudication: Although I’ll sometimes accept deferred adjudication, I am wary of them. First, deferred adjudications are usually not offered unless the case can be won by the defense. Second, if the client gets in trouble, the judge can assess the punishment anywhere between five years and life in the pen on a first-degree felony. Third, if things go bad, there is no right to a jury on the adjudication. Fourth, the client may still be facing lifetime sex registration which will limit where he can work and where he can live.
In this case, the client didn’t want to go to prison, and he was assured that at least he would not be deported.
Here is the catch: Most sex crimes don’t have a statute of limitations. Mr. Gallegos was accused of committing a crime nine years before in 2007 and he plead guilty in 2016. Because he admitted to a crime back in 2007, the feds declared his naturalization in 2010 “illegally procured.” He was “denaturalized” in 2017 soon after the plea.
Mr. Gallegos said, hey, the lawyer told me wrong, and I would not have taken the deal if I’d known I would lose my citizenship. The trial judge said, “tough.” And now the 13th Court of Appeals says, “tough.” Yes, your lawyer made a mistake, but you did not show that you were prejudiced because you did not prove that deportation was a ‘determinative issue’ for you when you decided to plead guilty.
Does this seem fair? And if it is not fair, how did the 13th Court come up with this result?
Another aside on the seven deadly sins of appellate law: There are several doctrines of appellate law that result in unfair outcomes to the case. They are baked into the system, so they not only seem natural to appellate judges, but they pop up in almost every case. The 13th Court cannot be faulted for following them, because that is what is expected of them by the judges who grade their papers. But…isn’t it still important we recognize whether these doctrines result in unfair results?
Yes, these doctrines are part of the appellate law, the 13th Court judges had very little choice but to follow them. These are the baked-in doctrines, and the 13th Court followed the law, but we should still remember that they produced an unfair result. Some of the deadly sins in this case include:
- Abuse of discretion standard: Even if we think the trial judge made a mistake, we’re going to follow his ruling and give almost total deference to his ruling. My internal critic screams out, “You hypocrite, you always think the defendant should get the benefit of the abuse of discretion standard.” Well, that is true, but it leads us to the next deadly sin.
- “What is sauce for the goose is sauce for the gander.” The judge tries to treat the State of Texas and the defendant equally. “I want to be fair to both sides.” This leads to bad results because it is not true. The State of Texas does not have a presumption of innocence, or a right to equal protection under the law, or a right to due process, or a right to be free from cruel and unusual punishment. The person accused of a crime does. So, if the trial judge finds for the individual, the appellate court and should recognize this doubt in the mind of the trial judge is enough. It is the defendant’s right to be protected by a reasonable doubt standard, not the State’s. But if the appellate judges think the trial judge made a mistake by not finding for the defendant, that also should be honored as part of the presumption of innocence.
- Harmless error doctrine: Even if the judge made legal mistakes, we’re going to ignore them unless the client can prove he was hurt, but we know this is almost impossible to prove because there is no way to reconstruct the past, so usually, we just say “tough luck, fella.”
- Requirement of proving prejudice by ineffective assistance of counsel: Even if the lawyer was wrong and told the client wrong, if the client did not keep asking to make sure before he pleaded guilty, we will find that he wasn’t really hurt even if he says now, he was hurt. Other judges have found that guys in similar situations were hurt, because getting untrue advice from your lawyer is serious stuff, but we think this case is different. In this case, the 13th Court went beyond the baked-in doctrine and should have found prejudice.
- Do Not Publish: This is a harmful and outdated doctrine which in the Texas Court of Criminal Appeals means the opinion has “no precedential value and must not be cited as authority by counsel or by a court.” Mr. Gallegos can be comforted by the knowledge that his case was so unimportant it shouldn’t be used against anyone else in the same way. Yes, these are the Texas Rules of Appellate Procedure, Rule 77 and Rule 47.2. “Do not publish” was ended for civil cases after January 1, 2003, we may guess on the belief that any case involving money should be fully respected, but if it is only freedom, not so much.
Spoiler alert: Another appellate law sin not discussed in this case is the doctrine of “totality of the circumstances.” When you read these words (and similar ones like “balancing test”) you should also hear the screams of dying rights of the defendant.
I don’t know Mr. Gallegos, but many of the permanent residents who are deported are, as they say, “fully acculturated.” They may not speak Spanish or know any world but the United States. Tossing them back is like parachuting an infant into a strange land with a note for him to survive. If anyone needs to remember the “prejudice” that comes from loss of your country, may I recommend a story from my childhood: The Man Without a Country by Edward Everett Hale.