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 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’s plea also mandated “deportation and permanent exile from the United States.”
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’s performance was deficient, and (2) whether the deficient performance prejudiced the defense. The test is based on an “objective standard of reasonableness.” At issue on appeal to the Sixth Circuit was the second factor: whether there was a “reasonable probability that, but for counsel’s errors, [Lee] would not have pleaded guilty and would have insisted on going to trial.” The court answered, “no.”
The Supreme Court recently agreed to hear Lee v. United States. In favor of the Sixth Circuit’s 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’s case seem grim. This could create more litigation and “threaten the integrity of the very adversary process [that] the right to counsel is meant to serve.” Moreover, for a defendant facing overwhelmingly inculpatory evidence, it may be objectively irrational to risk a far lengthier sentence by going to trial.
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 “a host of tests that go far beyond prosecutorial claims of proof.” Anything can happen at trial, including, as the Sixth Circuit itself admits, jury nullification.
The Sixth Circuit’s decision accepts the importance of jury nullification in general, but notes that; “a defendant has no entitlement to the luck of a lawless decisionmaker [sic].” Given our current political climate, perhaps the Supreme Court will give more weight to the Sixth Circuit’s substantive analysis of jury nullification, which it describes as originating from the framers’ “memory of how King George III had prevented juries from nullifying unpopular English laws.” 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.
Moreover, going to trial may be worth the risk if, as may be the case for many immigrants, deportation may lead to the “complete upending of the course of a life.” The prospect of loss of work, separation of families, or even death may influence a defendant’s decision to take the chance of a lengthier sentence and go to trial. When evaluating “objective” rationality, however, the Sixth Circuit’s decision places more emphasis on Lee’s unlikely chance of acquittal. Given that the second standard of Strickland asks whether the deficient performance of counsel prejudiced that decision of the defense, the Supreme Court should expand the range of experiences that make up an “objective” rational decision.
Regardless of its outcome, Lee highlights deeper problems within the criminal justice system. 94-97% of criminal cases end in plea bargains; a meaningful “right to trial” does not exist. Thus, courts should widen 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. While the record does not clarify whether such a negotiation was attempted, 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’s opinion expresses disapproval at the injustice of exiling “a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.” 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 is an example of how the criminal justice system sacrifices holistic adjudication on the altar of efficiency.
Note: Since writing this blog post, the Supreme Court decided Lee v. United States. Please see my more recent post discussing the holding.
 Brief for the Petitioner at 2, Lee v. United States, 2016 WL 6069221 (U.S.).
 Lee v. United States, 825 F.3d 311, 313-14 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).
 Brief for the Petitioner at 2.
 Strickland v. Washington, 466 U.S. 668, 687 (1984).
 Padilla v. Kentucky, 559 U.S. 356, 372 (2010)) (quoting Strickland, 466 U.S., at 688).
 Lee, 825 F.3d at 313 (quoting Hill v. Lockhart, 474 U.S. 52,59 (1985)).
 Lee, 825 F.3d at 316.
 Id. at 314.
 Id. (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
 Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 4, Lee v. United States, 2016 WL 6069221 (U.S.).
 Lee, 825 F.3d at 314-15, (quoting Strickland, 466 U.S., at 695).
 Id. at 314.
 Brief for Asian Americans Advancing Justice | AAJC and Other Immigrants’ Rights Groups as Amici Curiae in Support of Petitioner at 5, Lee v. United States, 2016 WL 6069221 (U.S.).
 Brief for the Petitioner at 3, Lee v. United States, 2016 WL 6069221 (U.S.).
 Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals. New York Times (Mar. 22, 2012) http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html
 Lee, 825 F.3d at 315.
 Id. at 316-17.
Well written and timely!
I came across your article from February while looking for write-ups on Lee v. United States. It’s great to see you giving attention to the right to jury trial implicated in the case, and even bringing up jury “nullification” – which most parties (especially in the Lee briefing) do not discuss.
That said, if you or your readers are interested in the topic of the legal status of nullification, especially as it relates to the Lee case, I’d suggest looking at the amicus curiae brief of The Cato Institute filed in support of Lee. (Full disclosure here: I co-authored the brief.) I bring it up because Cato’s brief discusses the original meaning of a “jury trial” as encompassing the possibility of nullification, and it is actually the only brief filed in Lee that discusses jury nullification/independence in any depth at all.
In any case, I appreciate your writing on the topic, and I could not help but belatedly reference our brief in support of Mr. Lee since it is very much on point with your article.