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For something that sounds so serious, moral turpitude turns out to be a rather nebulous concept � especially when it has to be adjudicated. That’s why the Ninth Circuit U.S. Court of Appeals will have a 15-judge panel take up the tricky question of whether being an accessory to a crime after the fact � for example, harboring someone you know just participated in a drug deal � is morally turpitudinous. Immigration lawyers are particularly interested. Resident aliens charged in criminal cases are often encouraged to accept deals pleading to accessory charges to avoid convictions of larger crimes, since offenses involving turpitude can be reason for deportation. In the case at hand, an immigration court had found that an accessory conviction itself was turpitude � and grounds for deportation. “People have been pleading guilty to this for a long time thinking that they’re safe,” said Courtney McDermed, an associate at the immigration firm Van Der Hout, Brigagliano & Nightingale. “Now they’re finding out � or they could find out � that they are pleading to a crime of moral turpitude.” She cited a July case (.pdf) in which a split three-judge Ninth Circuit panel upheld an immigration court’s ruling that being an accessory entailed turpitude. Because being an accessory under California law “requires a knowing, affirmative act to conceal a felony with the specific intent to hinder or avoid prosecution of the perpetrator, it is contrary to the duties owed society and constitutes a crime of moral turpitude,” Senior Judge Edward Leavy wrote in that decision, Navarro-Lopez v. Gonzales, 04-70345. He was joined by Ralph Beistline, a U.S. district judge from Alaska sitting by designation. Judge Harry Pregerson dissented, with verve. “The majority’s decision represents an unwarranted expansion of the definition of crimes involving moral turpitude and contravenes this circuit’s precedent,” he wrote. Pregerson said the majority held that an accessory after the fact conviction “is categorically a crime involving moral turpitude, even though one could be convicted under that statute for acts as sympathetic as providing food or shelter to one’s own child if you know the child has committed even the most minor felony.” He said the Ninth Circuit has held that turpitude requires not just conduct that runs counter to one’s duty to society, but that involves an “additional element of depravity” giving rise to moral outrage. And, he added, the circuit has already said that more serious crimes � such as assault with a deadly weapon � do not categorically involve moral turpitude. “Under the majority’s logic, then, we would reach the absurd result that a person who committed an assault with a deadly weapon has not committed a categorical crime involving moral turpitude, but a person who harbored the attacker from capture by the police had necessarily committed a crime involving moral turpitude,” Pregerson wrote. Pregerson evidently persuaded at least enough colleagues to win a vote to rehear the case en banc. That’s not altogether surprising in a split opinion where a visiting judge was in the majority � and where the dissent alleged a departure from circuit precedent, said Arthur Hellman, a professor at the University of Pittsburgh School of Law who tracks the Ninth Circuit. “Whenever I see a two-to-one decision with a district judge as part of the majority, I ask whether it would be a good candidate to take en banc,” Hellman said, adding that the Seventh Circuit U.S. Court of Appeals stopped using district judges in the 1990s over such concerns. McDermed said she hopes the 15-judge en banc panel can address the deeper problem faced by immigration lawyers: “Nobody knows what moral turpitude is.”

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