Hernandez said that when pleading guilty he misunderstood certain terms like "sexual contact," which he said he thought was any physical contact with someone of the opposite sex without their consent. Hernandez also noted immigration authorities had not taken action against him after his previous plea for assault.
McLaughlin acknowledged Hernandez was insufficiently warned of the possibility of deportation and said he did not think his own warning "corrected the problem that Mr. Schioppi's vague advice created," as Freedman wrote in her dissent.
But Hernandez was not prejudiced as a result, said McLaughlin, because the guilty plea was premised on Hernandez's belief that if going to trial conviction "was a certainty" with deportation and a longer sentence -- as opposed to a shorter sentence and deportation through a guilty plea.
As for Hernandez's definition of "sexual contact," McLaughlin called it "positively Clintonesque" by the "redefining for self-interest of commonly understood human and sexual and legal principles."
Freedman in her dissent said McLaughlin's dismissal was based on "unwarranted speculation" about the timing of the plea, Hernandez's certainty of conviction and his purported anticipation of deportation upon conviction.
Rebutting the alleged certainty of conviction, Freedman said the evidence against Hernandez was "not overwhelming," adding, for example, there was "no corroborating physical evidence."
Freedman said "it was entirely plausible" for Hernandez to mistakenly think he was immune from deportation, given no action had been taken against him for his assault conviction.
She said Hernandez had a limited education and was not fluent in English so he "could not be expected to be familiar with immigration law or to have sought advice from an immigration attorney."
But Sweeny said Freedman accepted Hernandez's testimony on its face while the lower court had rejected his testimony as "incredible." His alleged misunderstanding of "sexual contact" was one example of Hernandez's "lack of candor," said Sweeny.