DC Court of Appeals Holds that Non-Citizens Have a Right to a Jury Trial for Offenses Resulting in Deportation

Ordinarily, there is no right to a jury trial in DC Superior Court for charges carrying less than six months.  This all but abolishes misdemeanor jury trials because most misdemeanors in the DC Code carry 180 days, which is just shy of six months.

But what about non-citizens who can be banished from the country forever as a result of the conviction?  The Court in Bado v. United States decided this consequence makes those offenses sufficiently serious to require a jury trial.

The panel hearing the case was deeply divided – a three judge panel somehow produced a decision with four opinions.  Judge Thompson wrote the opinion for the court, and and a separate opinion concurring with herself.  Judge Ruiz’s concurrence discusses some finer points of deportation law, and responds to Judge Fisher’s dissent which opens as follows

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the same offense does.

Ever since the Supreme Court’s holding in Padilla that defendants have a right to effective assistance of counsel in considering immigration consequences of their criminal convictions, defense lawyers everywhere have had to start doing a little immigration on the side.  Now, at least in Superior Court, the defense bar will have to get even more up to speed on the law of deportation.


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