ATLANTA -- Today's oral arguments before the Georgia Supreme Court about the appeal of a man arrested in Augusta for child molestation included a unique twist: lawyers on both sides agreed on nearly everything.
They agreed that a new Georgia law requires judges about to accept a guilty plea to make sure anyone who isn't a U.S. citizen understands that deportation is likely.
Where they disagreed was whether failure to warn a defendant is a mistake that can only be fixed by throwing out the plea or whether it was a harmless foul.
The case revolves around Lawrence Rupert Smith, who was born in Panama and pleaded guilty but mentally ill to three counts of child molestation after a security officer found him partially undressed with a 7-year-old girl in a parked car near Bush Field in 2002. Smith filed an appeal without the help of a lawyer, but it was denied because it was after the deadline. He appealed that decision, which the Court of Appeals denied, so he appealed again.
Only in February did he gain the help of a Mercer University professor and her third-year law students.
Professor Sarah Gerwig-Moore said today, "I'm in the happy position of agreeing with much of what the state has argued."
She said since Smith has already been notified that federal officials are planning to deport him, the failure to warn him during sentencing was a serious breach.
But there was no testimony or evidence given during the sentencing hearing that he was indeed a foreign citizen. Gerwig-Moore said the Supreme Court could order a hearing on his citizenship, and if he is Panamanian, then he should be given the chance to change his plea and face a trial.
Assistant District Attorney Charles Sheppard told the seven justices he agrees a citizenship hearing may be required, and he agrees that judges are bound by the law to warn a non-citizen about the possibility of deportation.
He disagrees, though, that the remedy should be a chance for a new plea.
Failing to check on the citizenship status of a U.S. citizen has no consequence and shouldn't trigger a plea being dismissed. But even failing to check the status of someone who turns out not to be a citizen isn't a big deal, Sheppard said.
"We aren't talking about a fundamental right," he said.
Justice Hugh Thompson brought up the concern that everyone who entered a guilty plea since the law passed could be subject to the court's decision in Smith's appeal, for citizens as well as non-citizens.
Justice Harris Hines, a former superior-court judge, said he didn't think most judges were going through the process of checking citizenship in every case.
Sheppard said the General Assembly never intended the warning to apply to citizens, only non-citizens.
The Supreme Court won't make a decision for several months.
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