High Court Reversal for Hopeless Defendant Given Bad Legal Advice

WASHINGTON (CN) – A Korean immigrant who faces deportation after pleading guilty to drug charges won relief Friday from the Supreme Court, with the justices ruling 6-2 that he was prejudiced by bad legal advice.

Jae Lee says deportation was his top concern in 2009 after he was indicted on one count of possessing ecstasy with the intent to distribute,. Police raided Lee’s townhouse had found 88 ecstasy pills, $32,000 in cash and a gun.

The attorney he hired, Larry Fitzgerald, assured Lee, however, that he would not be deported so long as he pleaded guilty. Though this advice proved incorrect, the Sixth Circuit rejected Lee’s claim that he was prejudiced by such objectively unreasonable representation.

Though the government calls it a near-certainty that Lee would be convicted at trial, earning himself a lengthier sentence as well as deportation, the Supreme Court reversed for Lee on Friday.

Declining to make it rule that a defendant should be barred from showing prejudice if they have no realistic defense to a charge supported by sufficient evidence, the majority called this position fundamentally at odds with the 1985 ruling Hill v. Lockhart.

“Common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial,” Chief Justice John Roberts wrote for the majority (parentheses in original). “The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea offer is 18 years. Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation — even if it shaved off prison time — in favor of throwing a ‘Hail Mary’ at trial.”

Other precedent, the 1984 case Strickland v. Washington, says that a “defendant has no entitlement to the luck of a lawless decisionmaker.”

Roberts found this statement inapt, however, “where, as here, a defendant was deprived of a proceeding altogether.”

The 13-page ruling also credits the paramount importance Lee placed on avoiding deportation.”

“At the time of his plea,” Roberts wrote, “Lee had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents — both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child.”

The government failed to sway Roberts that Lee’s choosing trial over the plea deal would have been irrational.

“But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation,” the ruling states. “Going to trial? Almost certainly. If deportation were the ‘determinative issue’ for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.”

Joining the majority were Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Neil Gorsuch did not participate in the case, as he was still awaiting Senate confirmation when the Supreme Court heard oral argument in March.

Justice Clarence Thomas focused his dissent, which was joined by Justice Samuel Alito, on his position that the Sixth Amendment does not “require counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.”

He also warned that today’s decision “will have pernicious consequences for the criminal justice system.”

“The court today provides no assurance that plea deals negotiated in good faith with guilty defendants will remain final,” Thomas wrote. “For one thing, the Court’s artificially cabined standard for prejudice in the plea context is likely to generate a high volume of challenges to existing and future plea agreements. Under the majority’s standard, defendants bringing these challenges will bear a relatively low burden to show prejudice. Whereas a defendant asserting

an ordinary claim of ineffective assistance of counsel must prove that the ultimate outcome of his case would have been different, the court today holds that a defendant who pleaded guilty need show only that he would have rejected his plea and gone to trial. This standard does not appear to be particularly demanding, as even a defendant who has only the ‘smallest chance of success at trial’ — relying on nothing more than a ‘Hail Mary’ may be able to satisfy it.”

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