Did lawyer mislead illegal alien?

PROVO — In May 2002, Tomas Rojas-Martinez was charged with misdemeanor sexual battery. Being an illegal alien, Martinez also faced immediate deportation, leaving behind his wife, if convicted.

What may have seemed an innocent assurance by a Davis County public defense attorney to Martinez that he might not be deported if convicted has grown into a possible precedent-setting case over how public defenders handle illegal immigrants in criminal court.

The matter was heard before the Utah Supreme Court, which convened Wednesday at Brigham Young University.

At issue is a conversation Martinez had with public defender William Albright about pleading guilty to the class A misdemeanor charge. Martinez was concerned that although a misdemeanor, the crime is considered a deportable offense under federal immigration standards. According to the petition filed with the Utah Supreme Court, Albright advised Martinez that he could be deported, but based on his 10 years of experience with federal immigration, sometimes they do not deport illegal aliens due to lack of resources or for other reasons.

Acting under that advice, Martinez pleaded guilty to sexual battery and was subsequently deported to Mexico. Martinez, through his attorney Lynn McMurray, argued before the Utah Supreme Court that Albright gave him a false sense of security when he persuaded him to plead guilty to the charge. Had he known that deportation was a certainty, Martinez would have asked for a trial, McMurray said.

A 2nd District judge found there was no evidence that Albright told Martinez that he would not be deported. However, in June 2003, the Utah Court of Appeals sided with Martinez, finding that Albright "affirmatively misrepresented" his client's consequences of pleading guilty.

"Families are literally ripped apart" by such situations, McMurray told the Supreme Court, adding the court's ruling could have a serious impact on criminal immigration cases because many illegal immigrants rely upon their attorneys to know the consequences of the law.

Assistant Attorney General Christopher Ballard argued that Albright never promised Martinez that he would not be deported. In fact, Ballard said, Martinez was told that deportation was possible and that Albright was simply offering his experience as a defense attorney to gauge the likelihood.

Chief Justice Christine Durham said the issue appears to be whether Albright expressed deportation as a "legal certainty" or not.

A ruling is expected in the coming weeks.

Justices also questioned whether the case is moot given the fact that Martinez was sent back to Mexico. McMurray said it is possible for Martinez to come back to the United States through a non-immigrant visa to stand trial.

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