Ding dong, the writs are dead


Yesterday the Maine SJC issued a handful of decisions, including State v. Blakesley, 2010 ME 19 [http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me19bl.pdf], in which the Court ruled that the ancient writs of coram nobis and audit querela were unavailable because they had been eliminated with the enactment of post-conviction statute provisions in the 1960's.  As a result, the petitioner, a legal resident from the U.K. who had been convicted of various crimes in his youth, could not obtain judicial relief from any of them now, when the Department of Homeland Security, having been woken up by his existence in the U.S., is seeking to deport him.  After reviewing the legislative history, the Court concluded that it is up to the other branches of the government, e.g. gubernatorial clemency, should the determination be that the deportation consequences are too grave.

As I have  blogged upon previously, not all the writs have been eliminated (that habeas corpus one, for example, remains pretty darn important).  A statute, 14 M.R.S. s. 5301 [http://www.mainelegislature.org/legis/statutes/14/title14sec5301.html] seems to keep habeas corpus, prohibition, error, mandamus and quo warranto in play (although as previously noted, the writs are probably superseded by the APA and 80B when governmental agencies are involved).  4 M.R.S. s. 8 [http://www.mainelegislature.org/legis/statutes/4/title4sec8.html] references the Court's authority regarding forms of writs, but expressly provides that no additional substantive powers are being bestowed on the Court.

The potential, given the current security environment, for rehabilitated or otherwise valuable contributors to our society being deported is a serious one.  The New York Times just finished a series of articles about an immigrant who when sentenced as a youth by a judge was told by that judge that if he worked hard to turn around his life, the judge would support him.  The immigrant did so, and then found himself caught up, many years later, in this deportation problem.  The retired judge stepped up, arguing for pardon or other relief, and, in the end, it happened.  

We represented a defendant in a somewhat similar situation in State v. Kargar, 679 A.2d 81 (Me. 1996) [http://www.pierceatwood.com/files/452_State%20v.%20Kargar%20(W1066587).PDF].  There, the defendant was deemed to have technically violated criminal laws by kissing his baby's penis, although everyone agreed that there had been nothing sexual about the act. For various good reasons, our criminal laws regarding sex acts with children don't have a mens rea requirement – body part X contacting body part Y will do it, period.  Kargar wasn't sentenced to any time, but because he was from Afghanistan, he was subject to deportation.  Fortunately, Maine has an off-ramp for this type of unjust result – the de minimis statute 17-A M.R.S.A. s 12 (1983) [http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec12.html], which allows the court to find no violation when, while technically meeting the elements of the crime, it's evident that the conduct at issue was never intended by the Legislature to fall within the criminal statute.

That avenue for relief appears unavailable here from the limited facts presented in the decision, and I'm sure the counsel for the petitioner here have scoured precedent for any other possible judicial remedy.  Now that the deportation consequences of criminal convictions are clear, the issue can and is properly addressed at the time of the conviction.  The problem is, as here, with convictions from long ago in light of our new security and immigration environment.  If these potential deportation consequences were not present at the time of the convictions, there does seem to be some sort of ex post facto unfairness here.  If there is a problem with defendants convicted of sexual transgressions having to register, etc., if those burdens did not exist at the times of their convictions, then similar reasoning would appear applicable in this context when the consequences are even more draconian.  On the other hand, it's not the state system imposing the consequence, but rather federal law.  A very thorny problem.