Towson Attorney Crafts Form to Help Immigrants in Court

Imagine finding yourself in district court, recently arrested and awaiting your first hearing. The attorneys and judge start proceedings in a language you can barely understand.

Nervous, anxious and scared, you say yes to every question the attorney asks. You plead guilty and without even thinking about it, you may have put yourself at risk for deportation, if you're an immigrant.

Virtually every day, Towson attorney sees someone outside a courtroom at who may be in that exact situation, he said.

"That's thousands of people across the state of Maryland who don't understand what they're giving up," Scholnick said.

Under federal law, an immigrant—regardless of legal status or how long one has been in the country—can be deported if convicted of an "aggravated felony" such as murder, drug trafficking, theft or bribery.

Unfortunately, when an immigrant—particularly a more recent immigrant—is brought into court, Scholnick said he or she might get nervous and believe that cooperating with authorities as much as possible is the best way to avoid deportation or jail time.

But that's not the case, and Scholnick wants them to understand the possible consequences—before they plead.

Scholnick cites the case of Mark Denisyuk, a Latvian immigrant who in 2006 was charged with assault  in Harford County. He pleaded not guilty with an agreed statement of facts (as allowed under Maryland law; it's similar to an Alford plea) and was sentenced to 10 years in prison—eight suspended—but appealed in 2007, saying that neither his attorneys nor the judge advised him that the plea could lead to his deportation. In October, the Maryland Court of Appeals ordered a new trial.

In November, Scholnick, with the help of Spanish-speaking legal assistant Lucy Pardo, began work on a three-page, bilingual form, and has been sending it to colleagues, including private defense attorneys and the Office of the Public Defender. (The current version is attached with this story.)

It advises defendants of their options and the consequences of entering a plea of guilty or not guilty with an agreed statement of facts.

"A couple of courts might have (such forms), a couple of judges might have them, but generally there's nothing, English or Spanish or otherwise," Scholnick said. "And the judge kind of relies on the interpreter. The lawyer tells the rights, the interpreter interprets it and the judge then accepts that as sufficient. The problem is if you (the attorney) don't speak Spanish to begin with, you can't really prepare people for this."

The waiver contains advice in both English and Spanish. It advises clients who opt to plead "not guilty" with an agreed statement of facts. It certifies that the defendant is aware of their rights and the consequences of their plea.

"It has to be a voluntary, informed, knowing waiving of your rights, and it's kind of hard to do that when you're getting this for the first time in front of a judge," Scholnick said.

Byron Warnken, a professor at the University of Baltimore School of Law, has seen Scholnick's form and said a checklist in any language would help all parties.

"Literally no one was even addressing these issues because the criminal lawyers didn't know a darn thing about deportation and immigration," Warnken said. "That has certainly changed a lot in the last 10 years, but that still happens."

Warnken also pointed to the U.S. Supreme Court case Padilla vs. Kentucky, decided in 2010. In that case, the court ruled in a 7-2 vote that a lawyer misstating or omitting immigration consequences of a plea is a violation of the Sixth Amendment right to counsel.

"Suppose you represent some college kid who's from Canada, who's here on a student visa. The lawyer needs to have as a checklist in every single case, what is the citizenship status so the lawyer can make sure he or she understands the collateral consequences," Warnken said.

And if the client doesn't speak English, they need to make doubly sure. A court interpreter only translates; the interpreter cannot explain the legal ramifications of a guilty plea or other legal concepts.

Pardo, a longtime court interpreter, also noted that the interpreter cannot relay when a client doesn't seem to really understand court procedures.

"I think that most attorneys do meet their ethical obligations and inform their clients, but I do know that there are cases where that isn't happening," said Sheena Wadhawan, an attorney for Casa de Maryland, the Latino legal advocacy organization.

Wadhawan recounted one recent case where a woman was "pretty shocked" that her husband would be deported for a guilty plea. Having a packet like Scholnick's may have helped.

"It is always good to be able to hand a client something in writing, in their own language," she said. "They can come to a place like Casa where we can look at the packet and really explain to the client what's going on."

Scholnick is still making revisions and improvements to his form. The current form, completed in January, is already available and is attached to this article.

He and Pardo also run a blog offering basic Spanish sentences for lawyers.

"It's too important. You stand up as an attorney, the judge listens to what you have to say. ... When you're dealing with important rights, the judge is hearing 'yes,' the attorney is hearing 'yes,'" he said. "When you're dealing with constitutional rights, there shouldn't be missing links."