Immigrant Given Bad Legal Advice Lobbies High Court

WASHINGTON (CN) – With a Korean immigrant’s U.S. residency hanging in the balance, the Supreme Court appeared divided Tuesday on pushing the limits of relief for ineffective assistance of counsel.

All of the justices seemed sympathetic this morning to the petitioner, Jae Lee, whose lawyer assured him incorrectly that he would not be deported if he pleaded guilty to drug charges.

The conservative justices seemed concerned, however, about writing a ruling that requires judges to climb into the heads of defendants to determine if it would have been rational for them to go to trial in the face of certain defeat rather than accept a plea like Lee did.

“Is it irrational to climb Mt. Everest without oxygen?” Justice Samuel Alito asked the court. “I mean, is it irrational to swim with sharks or perform on a tightrope without a net? I mean, I wouldn’t do those things, but people do it. I can’t say they’re irrational. They’re much less risk averse and they value things differently. I think it’s an unmanageable standard.”

Lee moved to Brooklyn, New York, from South Korea with his parents when he was 13, eventually landing in Bartlett, Tennessee, where he opened the Mandarin Palace Chinese Restaurant. Unlike his parents, Lee did not become a U.S. citizen but he does hold a green card.

Lee admits he used ecstasy recreationally, but the government says his drug use was more nefarious and that he had a side gig as a dealer, slinging ecstasy pills and marijuana in addition to his restaurant business. 

Police raided Lee’s townhouse on Jan. 9, 2009, and found 88 ecstasy pills, $32,000 in cash and a gun. Indicted on one count of possessing ecstasy with the intent to distribute, Lee hired Larry Fitzgerald to represent him.

He says he pestered the Tennessee attorney about his deportation concerns so much, that Fitzgerald became annoyed by the reminders.

Fitzgerald told Lee to plead guilty to the possession with intent to distribute count because the government’s evidence against him was airtight. Completely inexperienced in immigration law, Lee says he relied to his detriment on his lawyer’s promise that the plea would not get him deported.

Both sides agree Fitzgerald’s advice was bad, but the Sixth Circuit did not find the advice prejudicial since Lee would also have faced deportation if he lost at trial.

Pushing for a reversal this morning, Michigan attorney John Bursch told the high court that Lee would have made almost any choice, including one that earned him more jail time, if it meant he did not have to go back to South Korea, a country to which he had no ties.

“When you’re talking about giving up any chance to stay in this country versus a 9- to 11-month diminution in the sentencing guidelines range, I think that’s not only rational for Mr. Lee or for you and me, but for almost anyone,” Bursch said.

Bursch said there were many options open to Lee other than a prayer of a jury trial, including negotiating deportation protections or pleading to different charges that don’t require deportation.

But the conservative justices, especially Alito, voiced concerned about the practical difficulties of the test Bursch proposed.

“Let’s say, if the person is convicted, the person will serve eight years,” Alito said. “And you have a person who has many more ties to the country to which the person would be removed. Now how do you decide whether that’s rational? At what point does it become irrational?”

The attorney for the U.S. government faced tough questions meanwhile from Justices Elena Kagan and Sonia Sotomayor.

“Your Honor,” said Assistant to the Solicitor General Eric Feigin, “if you look at the inquiry that way, I don’t think it’s acting as any sort of meaningful check at all. Because you could always make the argument that, yeah, I would have risked two more years. Yes, I would have risked five more years. And I don’t know how a court can come in and say, you know what, that’s not objectively reasonable.”

Kagan and Sotomayor were quick to point out the Constitution guarantees a right to trial, not a plea deal. Even if a trial is unlikely to turn out a defendant’s way, the defendant still should have the right to go forward with it, they said.  

“All you’re asking the judge to do is say that in certain circumstances it is not beyond the bounds of reasonableness to throw the dice in order to not be deported from a country where you’ve lived your whole life,” Kagan said.

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