Supreme Court Weighs Bad Legal Advice To Korean Immigrant

Trying to avoid costly prosecutions and long prison sentences for the accused, plea bargains are commonplace in the United States.

But what if the defendant is given bad legal advice to plead guilty, eliminating their constitutional right to a jury trial?

The Supreme Court was weighing that issue Tuesday, in the case of a South Korean-born immigrant who claims he was ill-advised by his lawyer in a minor drug case.

Jae Lee, a lawful US resident, came from South Korea to New York at 13, accompanied by his parents. He grew up in the borough of Brooklyn; his parents became US citizens but he did not.

Lee later moved to the southern state of Tennessee, where he worked in the restaurant business before opening his first restaurant, and then a second.

He became an occasional user of ecstasy, a synthetic psychoactive drug, and according to authorities, began selling it.

In January 2009, police armed with a search warrant found 88 ecstasy tablets in his home. He was arrested for possession of the drug with the intent to distribute it.

Lee told his attorney, Larry Fitzgerald, that it was crucial for him to avoid deportation from the United States.

Fitzgerald began negotiations with the prosecutor and convinced Lee to plead guilty. His attorney assured him that even though he was not a US citizen, he would not be deported after he served his sentence because of his heretofore clean record over three decades in the country.

The restaurateur was finally sentenced to one year and one day in prison, a much more lenient penalty than normally imposed for drug trafficking.

The problem was that Fitzgerald was mistaken about immigration laws: Deportation is automatic for non-US citizens pleading guilty to the crime of drug trafficking.

Devastated, Lee petitioned the courts against his lawyer, saying that without Fitzgerald’s advice he would have taken his chances by going to trial, or negotiating a lesser plea that would not force his deportation, and serving a longer sentence if it meant he could stay in the US.

Under US law, a conviction can be overturned if the defendant did not receive effective aid from the lawyer. But the defendant has to show firstly that the lawyer’s representation was deficient, and secondly that the deficiency caused him damage.

It is the second element that the federal government is disputing in the case. The government insists that when there is overwhelming evidence of guilt, the defendant cannot be injured by a plea bargain.

According to Eric Feigin, assistant to the solicitor general at the Justice Department, even if Lee had gone to trial he would have certainly been convicted, sent to prison and deported.

That trial outcome is uncertain, argued John Bursch, the new lawyer representing Lee, who pointed out that the defendant could have sought a lesser plea alternative.

“There could have been some other arrangement” with the prosecutor, said Bursch, whose remarks seemed to catch the ear of the liberal justices on the Supreme Court.

In considering that Lee’s plea bargain had only reduced his sentence by nine months, and he still would have to be deported, Justice Sonia Sotomayor said it would have been rational for him to take a chance on a trial.

Putting herself in Lee’s position, she said that if “there’s even a one percent chance that I might be found not guilty, or at least found guilty of possession and not something else, I think I’m going to roll the dice.”

The case comes as President Donald Trump’s administration steps up enforcement of immigration laws and pursues deportations of undocumented immigrants, with a priority on those who commit crimes.

An estimated 11 million undocumented immigrants live in the United States.

The Lee case, which should be decided by late June, also casts a light on the deficiencies of plea bargaining, criticized for overshadowing a judge’s independence.

More than 95 percent of criminal cases in the US federal justice system are resolved by a plea bargain.

Often innocent people plead guilty for fear of facing a harsher sentence if they risk a jury trial for a crime they did not commit.

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