Everyone agrees that Jae Lee pleaded guilty to a drug charge and now faces deportation to South Korea because of bad lawyering.
The Tennessee restaurateur, who came to the United States as a child in 1982, was told if he took the plea he’d serve a year in prison. But his lawyer Larry Fitzgerald told him there was no chance that a longtime legal permanent resident like him would be deported. Fitzgerald was wrong.
But does Fitzgerald’s mistake make any difference if the evidence against Lee was so strong that he almost certainly would have been convicted had he rejected the deal and gone to trial? As the appeals court that ruled against him noted, he would still be deportable.
The Supreme Court struggled with the issue Tuesday. Does Lee deserve a second chance, because of his lawyer’s mistake, to either seek a plea deal that would not result in his deportation or roll the dice with a jury and hope that somehow he is not convicted?
The answer could be important, as the Trump administration promises a new vigor in deporting immigrants convicted of crimes.
Assistant Solicitor General Eric J. Feigin reminded the justices that ineffectiveness of counsel must be shown not only to be bad advice to the client, but that the bad advice affected the ultimate consequences.
“A defendant can’t prevail . . . if there’s nothing constitutionally competent counsel could have done to create that chance” of a better outcome, Feigin said. “And that’s the case here where the lower courts found, in the words of the court of appeals, that (Lee) had no bona fide defense, not even a weak one, and stood to gain nothing from going to trial aside from a longer prison sentence.”
But Feigin ran into stiff opposition from Justices Elena Kagan and Sonia Sotomayor.
“So here we have a defense attorney who says: ‘I didn’t know the law. I told him he wouldn’t be deported. And if I had known the law, I would have told him to go to trial,’ ” Sotomayor said. “So this is both prejudice in the advice and prejudice in the decision to . . . move forward.”
And Kagan said she believed a judge could think it rational for Lee to take his chances--because if she were in his position, she would.
“Why can’t a judge find . . . that it is objectively reasonable to give up six or eight or nine months for a shot at staying in this country rather than being deported to a place that you don’t know and where you have no ties?” Kagan asked. “I mean, you know, if somebody gave me that choice — sign me up.”
Even justices not as drawn to Lee’s side said he had a sympathetic case. He’s lived most of his life here, coming with his family to Brooklyn, and he has no ties to South Korea. He moved to Tennessee, and he’s worked in restaurants in the Memphis area.
He began to use the drug ecstasy recreationally, and the government says he became a dealer. When police executed a search warrant in 2009, they found “88 ecstasy pills, over $32,000 in cash, and a loaded rifle,” Feigin said.
When Fitzgerald began to negotiate a plea deal, Lee told him his top priority was not to be deported. Fitzgerald told him he should not worry. But when Lee was assigned to a facility, he discovered it was a detention camp and he would be deported.
Lee tried to get a second chance. But the U.S. Court of Appeals for the 6th Circuit ruled against him, somewhat reluctantly. Other courts have ruled for immigrants in such cases.
“The plea resulted in mandatory banishment from the United States,” said John Bursch, who argued Lee’s case before the justices. “No one seriously doubts that if Mr. Lee knew the truth about his plea, he would have rejected it.”
But some justices said ruling for Lee would create havoc in lower courts, as judges would have no standards on which to decide when a lawyer’s bad advice affected the outcome of the proceeding.
Justice Samuel A. Alito Jr. said Bursch was asking the court to “adopt a purely subjective standard.”
No, Bursch said.
“What is your standard?” demanded Justice Anthony M. Kennedy.
Bursch said it was “whether there was a reasonable probability the defendant would not have pleaded guilty.
“Even if it’s irrational?” asked Justice Stephen G. Breyer.
The problem with the 6th Circuit’s decision, Bursch said, was that it looked only at the likelihood of success at trial. There are other factors that should be considered as well, such as the prospect of getting a better plea deal, he said.
The case is Lee v. United States.