Justices consider the case of an immigrant who received bad legal advice

By S.M. | WASHINGTON, DC

HOWEVER the Supreme Court decides Lee v United States, a vexing case argued on March 28th, criminal defendants would be wise to heed this warning: client beware. Your lawyer may be a nitwit.

Jae Lee would be much better off today had he received that admonition years ago. Now he rues the day he hired Larry Fitzgerald to represent him in a drug case. Mr Lee came to America as a teenager from South Korea with his parents in 1982. He has been a lawful and entrepreneurial permanent resident ever since—opening a couple of restaurants in Memphis—and has never returned to his birth country. Unlike his parents, Mr Lee did not become an American citizen. So when he was caught with 88 ecstasy pills and a loaded rifle in 2009, his first priority was to ensure his immigration status would not be imperilled.

Don’t worry, Mr Fitzgerald told his client as he mulled a plea bargain, there's nothing to fear. Pleading guilty to a charge of intent to distribute drugs—in exchange for a reduced sentence of one year and one day—would protect him from deportation. With “30+ years of living in the US and strong ties” to his community, a “lack of prior criminal history” and the “small amount of drugs involved”, Mr Fitzgerald told his client it would be “impossible for the government to deport” him. They would be empowered to ship Mr Lee back to his long-forgotten home only if he had a jury trial and was convicted.

As it happens, Mr Fitzgerald, who had never worked an immigration case before, was dead wrong. Mr Lee found this out when he was told that his correctional facility was reserved for inmates bound for deportation after serving their time. Nonsense, Mr Fitzgerald told his client, “you have been in the United States so long they cannot deport you”. The lawyer’s ignorance was as deep and enduring as the confidence with which he believed he understood the law. Finally aware of the terrible advice he had received, Mr Lee sought to retract his plea.

Lee v United States asks whether he can do that. Both the trial court and the Sixth Circuit Court of Appeals said he cannot, despite the rather clear evidence that Mr Fitzgerald failed him. According to Supreme Court precedent, in order to show his Sixth Amendment right to effective assistance of counsel was compromised, Mr Lee needs to prove not only that his lawyer was deficient but that his mistakes “prejudiced”—negatively influenced—the outcome. And there’s the rub. Because the evidence against Mr Lee was “overwhelming”, the courts held, he almost certainly would have been convicted if his case had gone to trial. And a conviction would have resulted in deportation, just as the plea deal had.

The matter on the justices’ minds gave the hearing the flavour of a philosophy seminar. Is it always irrational, they asked, for a defendant to agree to a plea that results in his deportation? Several conceptions of rationality were bandied about, but the answer seemed to be that it was. Why would Mr Lee pursue this suit, after all, if he was fine with his deportation? And why would he voluntarily spend seven years in detention—multiplying his punishment many times over—rather than allow himself to be sent back to Korea? But Mr Lee’s lawyer, John Bursch, urged the justices to adopt an “objective” conception of rationality (in line with the court’s Hill v Lockhart ruling in 1985) where judges ask whether a defendant facing a particular set of circumstances would rationally agree to a plea with a particular outcome. He suggested that no rational defendant for whom America has been home for decades—and who has neither friends nor family in his country of origin—would agree to a plea leading to his deportation just to save a few months of prison time.

Justice Samuel Alito worried that such a test would be “unmanageable” because it “depends on how a particular person values those two things”. “[I]s it irrational to try to climb Mount Everest without oxygen?” What about swimming with sharks or walking 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”. Mr Bursch replied that the idea is to establish a “backstop” to prevent someone from making a “crazy decision”. As for the prospect of “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”, Mr Bursch said. Justice Elena Kagan agreed. "I mean, you know, if somebody gave me that choice, sign me up".

Arguing for the federal government, Eric Feiglin said Mr Lee must lose because “there's nothing constitutionally competent counsel could have done” to prevent a guilty verdict. Mr Lee had “no bona fide defence, not even a weak one, and had to gain nothing from going to trial aside from a longer prison sentence, except for the off chance of jury nullification”. Here Ms Kagan came alive, engaging Mr Feiglin in a spirited colloquy about Hill and the Sixth Amendment right to a jury trial. There’s no question Lee represents an “uncomfortable inquiry”, she said, but Mr Feiglin was “confusing two things”. The question is not whether Mr Lee would have fared well in a trial. The question is “what's the probability that the relevant proceeding would have been different? And here the relevant proceeding is the plea negotiation and the plea agreement”. The lawyer’s incompetence, in other words, may not have uniquely doomed Mr Lee to deportation. But it does seem to have spurred Mr Lee to have opted for the inadvisable plea.

Mr Lee needs five justices on his side to stay in America. Justices Sonia Sotomayor and Ruth Bader Ginsburg seemed to share Ms Kagan’s sympathy for Mr Lee, but it is hard to find two more justices willing to permit him to retract his eight-year-old plea. Justices Stephen Breyer and the chief, John Roberts asked tough questions of both sides, while Mr Alito and Mr Kennedy both seem to be leaning against the defendant. It appears that Mr Lee’s epic fight to save himself from his lawyer’s awful advice may end with a tearful round of goodbyes and a one-way ticket to Seoul.