<p>Attorneys are obligated to put their clients best interests FIRST instead of their personal interests & profits. As a practical matter, there are better attorneys and worse attorneys (like all professions). There are also clients who refuse to follow their attorneys recommendations and insist on proceeding “on principle.” Have always found those clients extremely tough to work with.</p>
<p>It’s always easiest to see things in hindsight. Attorneys have the obligation to lay all the options on the table as honestly as they can, with the likelihood of different outcomes. Some do a much better job of this than others.</p>
But that’s not what the law says - it looks at the feelings of the victim as a reasonable result of of the conduct of the defendant. If you find that to be troublesome, then you would have to also be bothered by prosecution for rape when there are no clear indicators of violence, such as date rape. I mean… if the defendant says that the victim was a willing participant – then what’s the point of asking the victim how she felt? Isn’t it often hard to defend against a charge of rape precisely for that reason?</p>
As they do under the explicit wording of the New Jersey statute.</p>
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Now you are confusing the perpetrators <em>thoughts</em> with his actions. If an adult has sex with a 15 year old, fully believing that the teenager is over age 18, is that a defense? No – because the law punishes <em>actions</em> not thoughts, unless the offense itself is a “specific intent” crime. Similarly, if a person empties all bullets out of a revolver and then is playing around with the gun, fully believing it to be empty, and then pulls the trigger and kills a friend – that person could still be convicted of manslaughter. (I believe the above scenario is possible as there still could be a bullet left in the chamber)</p>
<p>Re post #151 (scansmom) – I think you have pointed out where the state authorities could help prevent deportation – they would be able to provide support that the New Jersey statute was NOT an “aggravated felony”. One bright line test for “aggravated felony” appear to be the actual sentence imposed – so the no jail, probation sentence would provide evidence that the New Jersey statute did not fall under that designation. </p>
<p>Another factor is whether the offense involves “moral turpitude” – that is, what they underlying intent is. That’s another area where a statement from the state officials could help to prevent deportation.</p>
<p>If Ravi had agreed to the plea bargain, I think it is very possible that an astute lawyer could have requested that the prosecutor and/or judge make certain statements on the record as part of the plea entry that would have helped shield against a determination that the offense was an “aggravated felony” and even possibly left the door open for the defendant to subsequently move to withdraw his guilty plea if the immigration authorities determined otherwise. In other words, if the sentence did not involve imprisonment and he Judge made an explicit finding on the record that the crime did not involved moral turpitude and/or other factors relevant to the immigration determination – I’d think that would put the defendant on fairly strong ground in terms of fighting deportation.</p>
<p>Am I also bothered by prosecution of some rape cases? Yes, and some child molestation cases, and some of such s/he said and s/he said cases. And many of such controversial cases have been reported and analyzed in the news media, and dramatized in fictions and movies. If rape cases are hard to defend, they are also hard to prosecute. And even true rape victims are not always believed. </p>
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<p>Dharun Ravi was convicted of invasion of privacy, regardless he intended to or not. This was based on his words and action, as it should be (as are all the examples you listed above). The bias conviction is a different matter.</p>
<p>A “felony” is not the same as an “aggravated felony.” I have spelled out above the ways that the plea record could have been structured to protect the defendant and minimize the likelihood of deportation. </p>
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<p>This statement is at best naive and actually represents the sort of misguided rationalization I often saw among criminals in my practice – the person simply acts from the premise that police and prosecutors are liars who are trying to trick them. </p>
<p>I practiced law for roughly 20 years and I encountered police & prosecutors who lied to me other contexts, but not in the context of plea negotiations. The prosecutor has little motivation to “secure an easy guilty plea” when they have a strong case to bring to trial – and I think any prosecutor would have been fairly confident of conviction given the evidence in Ravi’s case. </p>
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The prosecutors still have a responsibility to enforce the laws of their state – and that generally means accepting pleas to offensed that are reasonably related to what the defendant did. There was still a young gay man (now deceased) who found himself with a college roommate who set up web cams to spy on him and posted demeaning comments about his sexuality online. </p>
<p>I mean – it still come down to the bottom line: if & when Ravi is deported, it will be as a consequence of his own deliberate and intentional conduct – not as a result of cruel or dishonest prosecutors or a corrupt law enforcement system. Obviously there were unintended and unanticipated consequences as well – Ravi didn’t expect the person he was harassing to go out and commit suicide, and but for the suicide, the situation may not have come to the attention of law enforcement – but that doesn’t change the fact that Ravi chose to turn on the web cam, he chose to make inappropriate posts to Twitter, he apparently also chose to try to influence what witnesses told the police when they were investigating.</p>
<p>Yes, but the criminal justice system is full of similarly sad stories. </p>
<p>It seem that people get outraged when the “sad story” involves a college student from an affluent background… but not at all bothered when poor judgment and poor decisions result in a young person from a poor neighborhood spending years behind bars. And I am sure there are countless youngsters with impoverished parents who are deported every year due to relatively trivial criminal offenses, without anyone seeing it as “sad”. Worse, those kids don’t even have the benefit of expensive private lawyers or no-jail-time offers on plea bargains – they get assigned he public defender and shunted through the system with no one even giving a thought to the possible immigration consequences tied to the charges.</p>
<p>To the people saying there wouldn’t have been a day in court if not for Tyler committing suicide:</p>
<ol>
<li>Well, he did commit suicide, so it’s no use now to ponder the “what if’s” had the situation played out differently.</li>
<li>Either way, the law would have been broken (invasion of privacy, etc). So are you suggesting the school should have ignored the illegality of the situation and not contacted the proper law officials had a young man not lost his life soon after?</li>
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<p>know of a case, former male employee contacts his former female manager seeking to be rehired after he was let go 6 yrs earlier. she indicates no jobs available, for some reason former employee begins intense harassment of her, sending love letters, bizarre objects and tells her he’s going to come visit her, she indicates no interest, he persists. he informs her he has bought flight tickets to come see her as they are “meant to be” crossing state lines to do so. FBI became involved once it is learned he did in fact purchase tickets to cross state lines to “stalk” her, he was picked up at the airport by FBI in her city, he meant what he said. Due to his HB1 Visa he was deported to India, with no reentry permitted.</p>
<p>Back to Ravi case, it is known that while bullying can humiiliate,isolate and harm, it is not necessarily a “cause” of suicide. Typically bullying will contribute to depression, which can lead to suicide. may seem like parsing terms, but this is what current suicide research tells us. My heart goes out to Clementi’s family, but we know there were statements made by Clementi about his mother’s negative reaction to his coming out to her and his father. This is scary territory isn’t it? It is possible his mother’s reaction contributed to feelings of rejection, depression etc. and that Ravi’s actions only tipped a scale. Imagine if a parent were to be held liable for hurtful statements to their own child upon coming out? <a href=“http://www.reuters.com/article/2011/08/13/us-rutgers-clementi-idUSTRE77C01Z20110813[/url]”>http://www.reuters.com/article/2011/08/13/us-rutgers-clementi-idUSTRE77C01Z20110813</a></p>
<p>HImom, sending an apology for implying Ravi’s lawyers weren’t acting on their clients best interest. Whew: going to trial is terribly risky. I was know that going to trial did make them more money. But in truth, all the lawyers I know (and I know many personally and professionally) are incredibly ethical folks. </p>
<p>scansmom is right and xiggi incorrect: not every aggravated felony under immigration law is a deportable offense. Immigration has a specific list under 8 U.S.C. § 1101(a)(43). Not every felony, even aggravated under state law, with a sentence over one year qualifies as a deportable offense under immigration law. </p>
<p>From scanning that list the only one that I could find that matches any of Ravi’s offenses is witness tampering BUT ONLY IF that conviction results in a sentence of greater than one year. Hate crimes unless accompanied by violence are not on the list. </p>
<p>Moral turpitude offenses (not really defined anywhere) are deportable offenses if committed within 5 year of admission to the US, so would not apply to Ravi, whatever the length of sentence. </p>
<p>It does seem the judge has complete discretion in this case to render a sentence that would not result in deportation. The fact that the Judge released Ravi on bail to his family pending sentencing would seem to indicate a higher likelihood of a sentence without prison time and therefore without a risk of deportation. </p>
<p>In any case, Ravi’s deportation could not occur until all appeals have been exhausted.</p>
<p>Another factor is whether the offense involves “moral turpitude” – that is, what they underlying intent is. That’s another area where a statement from the state officials could help to prevent deportation.</p>
<p>If Ravi had agreed to the plea bargain, I think it is very possible that an astute lawyer could have requested that the prosecutor and/or judge make certain statements on the record as part of the plea entry that would have helped shield against a determination that the offense was an “aggravated felony” and even possibly left the door open for the defendant to subsequently move to withdraw his guilty plea if the immigration authorities determined otherwise. In other words, if the sentence did not involve imprisonment and he Judge made an explicit finding on the record that the crime did not involved moral turpitude and/or other factors relevant to the immigration determination – I’d think that would put the defendant on fairly strong ground in terms of fighting deportation. <<<</p>
<p>Calmim, you could not be more wrong in the above analysis or in the subsequent posts where you discuss aggravated felonies and CIMT. </p>
<p>I highly recommend to spend some time reading actual cases that addresses the changes brought by the immigration laws passed in 1996, namely AEDPA and IIRIRA. ion addition to the very extensive definition of an aggravated felony, the DHS/ICE/INA have often used broad discretion to pursue removal for much milder offenses, including misdemeanors. Reading some cases of removal for thefts of 15 dollars by a LPR will make you revisit your faulty interpretation of the inadmissibility rules. For the record, even cases of expunged records and cases that were settled BEFORE the effectived date of IIRIRA in 1997 have caused removal.</p>
<p>Further pay attention of the language in the law that introduces the concept of a possible sentence versus time actually served and the changes from 5 years to one year in the final wording of IIRIRA.</p>
<p>As far as post conviction remedies, a leading case is that of Enrico St. Cyr who fought his removal for a guilty plea entered before the passage of IIRIRA all the way to the SCOTUS. Since the 2001, the provisions of 212c hearings have been so narrowly defined that its impact for convicted foreign residents is close to zero.</p>
<p>Further, you may find it instructive to read about the outcome of various attempts to undo the excessive harshness of the current law. For years, a number of Congressmen introduced Family Reunification legislation to bring relief to people who were denied due process. </p>
<p>By digging deeper in the legal review of immigration removal cases, you might form a clearer picture of how different the reality is from an educated opinion based mostly on speculation.</p>
<p>No offense xiggi, but I am inclined to believe the word of someone whose occupation requires them to know and work with these laws every day over your word.</p>
<p>Again, xiggi you are confused by the definition of aggravated felonies under immigration law. Some of them may well be misdemeanors under state law, such as minor drug possession offenses, but they STILL have to be listed under 8 U.S.C. § 1101(a)(43) to be considered deportable offenses. The cases you cite are irrelevant because they all relate to offenses under the list.</p>
<p>That list is NOT discretionary. Outside of witness tampering (if convicted for more than one year), I don’t see anything that Ravi was convicted of that rises to the level of aggravated felony under the statute.</p>
<p>calmom, as always a perfect summation of the case. </p>
<p>I think the Ravis assumed Dharun’s excellent academic record would influence the jury and result in a not guilty verdict, thus no need to accept the plea deal. But juries are made up of ordinary citizens (not intellectual elites) who expect an 18y/o to be able to solve a problem (sexile from dorm room) in a manner that doesn’t result in humiliation and invasion of privacy. After Tyler’s death Dharun’s friends reported he showed little or no remorse.</p>
<p>I would like to see the judge waive jail time and order immediate deportation.</p>
<p>I agree with the above sentiment. I see no reason why the U.S. should extend residency to someone who is convicted of playing fast and loose with the judicial system (witness tampering). And I see no extenuating circumstances.</p>