The last United States Supreme Court term ended with some noteworthy criminal decisions. One of these was Jae Lee v. United States, decided on June 23, 2017. This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.
The facts are not complicated. The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute. During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not. Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea. Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance. His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation. A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice. Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.
Fortunately, the Supreme Court reached a different conclusion and reversed. The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty. The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal. The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence. The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial. While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant. Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial. But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational.
Still, the Court found that lower courts should not automatically credit a defendant’s assertions that s/he would have proceeded to trial rather than plead absent real evidence to substantiate that claim. In this case, the Court found Lee made this showing by demonstrating that the determinative issue was deportation. For example, Lee argued that he had strong connections to the United States, but no connections to his native South Korea.
Against this backdrop, the Court held that Lee satisfied both prongs of the test for ineffective assistance, and reversed and remanded.
This case is yet another reminder that defense counsel must advise non-citizen criminal defendants with great care. That Lee’s defense counsel did not know that the charge in this case was an aggravated felony is nothing short of astonishing. If counsel does not know the answer to such a question, the correct course of action is to have the client consult with a reliable and knowledgeable immigration attorney prior to accepting the plea. Counsel should also represent on the record at the plea hearing that this advice was, in fact, given.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey, who represents defendants with criminal charges in all state and federal trial courts in New Jersey and New York City. If you have a criminal case in one of these courts, or in a municipal court located anywhere in New Jersey, contact Mr. Friedman to discuss your case, and to learn about your options.