Nestor Francisco was a suspect in a homicide. When police sought to interrogate him, they provided him standard Miranda warnings. He worried that “this thing will . . . cause me problems with my record, because I do not have papers. I am undocumented[,]” The officer replied: “No. No.” Later in the interrogation, the officer perhaps “only” misled Mr. Francisco by responding to his question “have [I] not gotten into a stupid mess?” by explaining (accurately, but nonresponsively) that “I am not going to ask questions on your status, or how you got here to this country. Absolutely nothing.”
The Appellate Division asked the ACLU-NJ to write a brief in the case. We explained that the officer’s immigration advice – which he should not have given in the first place – was wrong: a conviction made Mr. Francisco’s removal (after a long prison sentence) a virtual certainty. We argued that this promise – on an issue that clearly mattered to the defendant since he repeatedly asked about it – had the capacity to overbear his will and render his statement involuntary.