By Brian R. Merrick

Cape Cod Times column, November 2, 2015

Puzzling over the sudden extraordinary success of the presidential campaign of a certain noisy, immigrant-baiting real estate developer, it is useful to consider the case of Liston Henry (“Cape man deported after conviction wins appeal,” Oct. 3, and “Deported Hyannis man on long road to return,” Oct. 12).

Henry immmigrated to New York City from Jamaica and moved to Hyannis in 1999, leaving his wife and children behind “after nearly a decade of trying to get the proper residency documents,” according to your Oct. 12 report.

During the next five years on Cape Cod Henry acquired a girlfriend with whom he fathered another child and appeared before the local court on a domestic assault charge, later apparently dropped by the woman.

In 2004 a Probate Court judge found a danger of domestic abuse and issued an abuse prevention order against Henry, prohibiting contact with the woman. The day after Henry was served with the order, the woman reported to police that Henry had called and yelled threats at her.

Henry was charged with violating the restraining order. As Henry was found to be indigent, an attorney was appointed to represent him. After several appearances Henry admitted to the charge on Oct. 27, 2004, and his case was continued without a finding.

In March 2005, while the order requiring Henry to stay away from her home was still in effect, the same woman reported to police that Henry had come to her home, told her that they were going to get married, refused to leave when asked unless her new boyfriend, reportedly upstairs, also left, grabbed the telephone from her and pulled the phone cord from the wall when she tried to call the police. She had scratches on her arm from the struggle.

Again Henry was charged with violation of a domestic abuse order, another attorney was appointed to represent him, and again after several appearances Henry pleaded guilty before a different judge and was placed on probation.

In 2010 deportation proceedings were filed against Henry based on those cases. In 2013, a few months before he was actually deported, Henry filed motions in the Barnstable District Court to have each of his pleas vacated on grounds of “ineffective assistance of counsel.” His affidavit swore: “Both lawyers just said if you plead guilty you can get out of jail today, and get right back to work and everything will be fine.” The victim contributed an affidavit denying that the events she reported ever happened.

In both cases the judges at the plea hearings had each told Henry in open court that his plea could “result in deportation, denial of naturalization or exclusion from admission to the United States.” Henry signed statements in each that he had been so advised. Both attorneys and the judges each signed statements to the same effect.

The motions were heard by the same judges. Nearly a decade after the original unremarkable hearings, neither of the attorneys had any actual memory or record of them, and defense attorneys in any event would generally be reluctant to file an affidavit injuring a former client. Each judge separately wrote findings of fact that the self-serving affidavits submitted by Henry were not credible and denied the motions.

The function of deciding whether someone is telling the truth belongs to the trial judge. While appellate judges review the trial judge’s legal decision, they are not supposed to second-guess findings on credibility.

The defendant on such a motion has the burden of proving both that he did not get proper advice on the immigration consequences of a plea and that he would not have pleaded guilty if he were properly advised. As the judges disbelieved the only evidence relating to the motions, those motions were properly denied. The Appeals Court nevertheless vacated the decisions on the motions to vacate and sent them back for further findings when the only evidence was affidavits neither judge believed.

The two District Court judges who heard the cases were among the best in the system. The two lawyers who were appointed to represent Henry are both known to me from personal observation to be capable, conscientious and ethical.

The Appeals Court ruling effectively gives aliens a right not available to citizens — a right to have a plea vacated after enough years have gone by that no one remembers anything.

Little wonder people are mad.

— Brian R. Merrick is a retired presiding justice of the Orleans District Court.