{"id":10347,"date":"2017-02-16T16:39:59","date_gmt":"2017-02-16T21:39:59","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10347"},"modified":"2017-10-12T07:22:32","modified_gmt":"2017-10-12T11:22:32","slug":"irrational-actors-the-right-to-trial-in-lee-v-united-states","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/irrational-actors-the-right-to-trial-in-lee-v-united-states\/","title":{"rendered":"(Ir)Rational Actors: The Right to Trial in Lee v. United States"},"content":{"rendered":"

Jae Lee moved to the United States legally in 1982 and attended high school in New York. After graduating, Lee became a successful restaurateur, but never an American citizen. In 2009, Lee was charged with possession of ecstasy with intent to distribute. His lawyer recommended a guilty plea. The evidence against Lee was staggering, and his lawyer incorrectly promised that a plea deal would not put him in danger of deportation. Lee took the deal, which reduced his\u00a0prison time from a 24-30 month range to a year and one day.[1]<\/a> Possession of ecstasy with intent to distribute, however, is an aggravated felony. [2]<\/a> Thus, Lee\u2019s plea also mandated \u201cdeportation and permanent exile from the United States.\u201d[3]<\/a><\/p>\n

On appeal, Lee sought to vacate his conviction by demonstrating ineffective assistance of counsel. A court reviewing an ineffective assistance of counsel claim examines two factors: (1) whether the attorney\u2019s performance was deficient, and (2) whether the deficient performance prejudiced the defense.[4]<\/a> The test is based on an \u201cobjective standard of reasonableness.\u201d[5]<\/a> At issue on appeal to the Sixth Circuit was the second factor: whether there was a \u201creasonable probability that, but for counsel\u2019s errors, [Lee] would not have pleaded guilty and would have insisted on going to trial.\u201d[6]<\/a> The court answered, \u201cno.\u201d[7]<\/a><\/p>\n

The Supreme Court recently agreed to hear Lee v. United States<\/em>. In favor of the Sixth Circuit\u2019s decision, allowing an ineffective assistance of counsel claim could set precedent that incentivizes defense lawyers to purposefully act ineffectively if the merits of the defendant\u2019s case seem grim.[8]<\/a> This could create more litigation and \u201cthreaten the integrity of the very adversary process [that] the right to counsel is meant to serve.\u201d[9]<\/a> Moreover, for a defendant facing overwhelmingly inculpatory evidence, it may be objectively irrational to risk a far lengthier sentence by going to trial.<\/p>\n

Yet perhaps the justice system should not be in the business of judging the merits of a case before it goes to trial. Arguably, the right to trial includes any legitimate chance, however small, that a defendant may prevail. In its amicus brief for Lee, the National Association of Criminal Defense Lawyers argues that the justice system involves \u201ca host of tests that go far beyond prosecutorial claims of proof.\u201d[10]<\/a> Anything can happen at trial, including, as the Sixth Circuit itself admits, jury nullification.<\/p>\n

The Sixth Circuit\u2019s decision accepts the importance of jury nullification in general, but notes that; \u201ca defendant has no entitlement to the luck of a lawless decisionmaker [sic].\u201d[11]<\/a> Given our current political climate, perhaps the Supreme Court will give more weight to the Sixth Circuit\u2019s substantive analysis of jury nullification, which it describes as originating from the framers\u2019 \u201cmemory of how King George III had prevented juries from nullifying unpopular English laws.\u201d[12]<\/a> Nullification may be a powerful tool in cases where a sympathetic defendant faces deportation, especially for a low level crime. The potential for jury nullification strengthens the case for choosing trial in such instances.<\/p>\n

Moreover, going to trial may be worth the risk if, as may be the case for many immigrants, deportation may lead to the \u201ccomplete upending of the course of a life.\u201d[13]<\/a> The prospect of loss of work, separation of families, or even death may influence a defendant\u2019s decision to take the chance of a lengthier sentence and go to\u00a0trial.[14]<\/a> When evaluating \u201cobjective\u201d rationality, however, the Sixth Circuit\u2019s decision places more emphasis on Lee\u2019s unlikely chance of acquittal. Given that the second standard of Strickland <\/em>asks whether the deficient performance of counsel prejudiced that decision of the defense<\/em>, the Supreme Court should expand the range of experiences that make up an \u201cobjective\u201d rational decision.<\/p>\n

Regardless of its outcome, Lee <\/em>highlights deeper problems within the criminal justice system. 94-97% of criminal cases end in plea bargains;[15]<\/a> a meaningful \u201cright to trial\u201d does not exist. Thus, courts should\u00a0widen procedural protections during the plea bargaining stage. As the Sixth Circuit points out, an effective counsel may have tried to bargain with the prosecutor so that Lee could plead guilty to a non-deportable offense.[16]<\/a> While the record does not clarify whether such a negotiation was attempted,[17]<\/a> the possibility highlights the need to reform the plea bargaining process, especially in cases where permanent exile is on the table. Furthermore, jury nullification continues to hold an uncertain status in the legal system. The Sixth Circuit\u2019s opinion expresses disapproval at the injustice of exiling \u201ca productive member of our society to a country he hasn\u2019t lived in since childhood for committing a relatively small-time drug offense.\u201d[18]<\/a> In expressing sympathy toward Lee, the court (perhaps unintentionally) indicates that jury nullification might have been a real possibility at trial. After all, precedent may bind judges, but jurors may nullify unjust laws. Ultimately, Lee<\/em> is an example of how the criminal justice system sacrifices holistic adjudication on the altar of efficiency.<\/p>\n

Note<\/em>: Since writing this blog post, the Supreme Court decided\u00a0Lee v. United States<\/em>. Please see my more recent post discussing the holding<\/a>.<\/p>\n

[1]<\/a> Brief for the Petitioner at 2, Lee v. United States<\/em>, 2016 WL 6069221 (U.S.).<\/p>\n

[2]<\/a> Lee v. United States<\/em>, 825 F.3d 311, 313-14 (6th Cir. 2016), cert. granted<\/em>,<\/u> No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).<\/p>\n

[3]<\/a> Brief for the Petitioner at 2.<\/p>\n

[4]<\/a> Strickland v. Washington<\/em>, 466 U.S. 668, 687 (1984).<\/p>\n

[5]<\/a> Padilla v. Kentucky, <\/em>559 U.S. 356, 372 (2010)) (quoting Strickland, <\/em>466 U.S., at 688).<\/p>\n

[6]<\/a> Lee, <\/em>825 F.3d at 313 (quoting Hill v. Lockhart<\/em>, 474 U.S. 52,59 (1985)).<\/p>\n

[7]<\/a> Lee, <\/em>825 F.3d at 316.<\/p>\n

[8]<\/a> Id<\/em>. at 314.<\/p>\n

[9]<\/a> Id<\/em>. (quoting Harrington v. Richter<\/em>, 562 U.S. 86, 105 (2011)).<\/p>\n

[10]<\/a> Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae<\/em> in Support of Petitioner at 4, Lee v. United States<\/em>, 2016 WL 6069221 (U.S.).<\/p>\n

[11]<\/a> Lee, <\/em>825 F.3d at 314-15, (quoting Strickland, <\/em>466 U.S., at 695).<\/p>\n

[12]<\/a> Id. <\/em>at 314.<\/p>\n

[13]<\/a> Brief for Asian Americans Advancing Justice | AAJC and Other Immigrants\u2019 Rights Groups as Amici Curiae in Support of Petitioner at 5, Lee v. United States<\/em>, 2016 WL 6069221 (U.S.).<\/p>\n

[14]<\/a> Brief for the Petitioner at 3, Lee v. United States<\/em>, 2016 WL 6069221 (U.S.).<\/p>\n

[15]<\/a> Erica Goode, Stronger Hand for Judges in the \u2018Bazaar\u2019 of Plea Deals<\/em>. New York Times (Mar. 22, 2012) http:\/\/www.nytimes.com\/2012\/03\/23\/us\/stronger-hand-for-judges-after-rulings-on-plea-deals.html<\/p>\n

[16]<\/a> Lee, <\/em>825 F.3d at 315.<\/p>\n

[17]<\/a> Id.<\/em><\/p>\n

[18]<\/a> Id<\/em>. at 316-17.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In 2009, Jae Lee\u2013a legal resident but not an American citizen\u2013 was charged with possession of ecstasy with intent to distribute. The evidence against Lee was staggering, and his lawyer incorrectly promised that a plea deal would not put him in danger of deportation. The plea deal reduced Lee\u2019s prison time from a 24-30 month range to a year and one day. Possession of ecstasy with intent to distribute, however, is an aggravated felony. Thus, Lee\u2019s plea also mandated \u201cdeportation and permanent exile from the United States.\u201d<\/p>\n","protected":false},"author":154,"featured_media":10350,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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