I knew I was going to have to appeal this case when a prosecutor said to me, “this hearing won’t take long—the case wasn’t a misdemeanor.” If the case wasn’t a misdemeanor, you see, I filed the wrong sort of writ of habeas corpus—an 11.09 writ rather than an 11.07 writ. If I should have filed an 11.07, I should have done so in the Court of Criminal Appeals; I had filed, instead, an 11.09 writ in the trial court.

But if I had filed the wrong instrument, appealing would do me no good; I’d have to file the right writ in the right court. But that’s when I knew that I was going to be filing a notice of appeal. Because not only had the case been a misdemeanor (reduced from a felony by agreement at the time of the guilty plea), but the prosecutor who said this was the fourth one in the courtroom…the one wearing the black dress…the from the judicial division of the Harris County District Attorney’s Office, if you take my meaning. And if the Fourth Prosecutor, before our hearing had even begun and without reviewing the clerk’s file, had decided that she was going to deny us relief, then I thought there was no chance that she would a) consider the evidence; b) read the caselaw; c) apply the law to the evidence; and d) grant relief. The first three steps—which weren’t really difficult—were necessary to reach the third; the Fourth Prosecutor could deny relief by skipping any of those steps.

And that is, indeed, what she did. To the Fourth Prosecutor, Padilla is simply a reaffirmance of Strickland; it stands for the proposition that “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” and nothing more.

It’s almost as though the Supreme Court never said this:

When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

It’s like Part IV of the Padilla opinion was never even written.

5 responses to “Casuistry”

  1. Just mussing: This comment may not fit in nicely at this juncture but it could cut both ways in a trial: F.E.A.R.: False Evidence Appearing Real. OK…go on bout that black dress thing (which of course wasn’t me). It’s interesting you said “she” when referring to the 4th prosecutor. I remember getting a search warrant signed by Judge Kegans whereby the Affiant kept referring to the “C.I.” as “IT”. Judge Kegans gave a great big belly laugh, leaned back in her chair like F.F.R. and said: ” Well I know your “snitch” is a female. With you however, I do seem to recall you indicating somewhere that you will use “he” “& she” interchangeably. I still think you are referring to the female gender.

  2. I had a similar experience yesterday–nothing like having opposing counsel address you from the bench.

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