Interesting article by Ilya Shapiro of the Cato Institute discusses whether jury nullification could aid a defendant who is facing deportation in lieu of receiving bad legal advice.
According to Ms. Shapiro, defendant Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported. The lawyer was wrong, unfortunately, because the conviction made Lee subject to deportation.
When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.
The U.S. Court of Appeals for the Sixth Circuit agreed with the law court’s ruling that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.
For those who don’t know, jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.
According to Shapiro, Mr. Lee is now taking the matter at the United States Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief.
The Supreme Court must now protect the right to pursue Mr. Lee’s potentially risky trial strategy. Although it may not be wise for Mr. Lee to seek acquittal by jury nullification, he should also have the right to decide whether the risk is worth facing as against the certainty of deportation. According to Shapiro, “It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.” The Supreme Court hears argument in Lee v. United States on March 28, 2017.
My opinion? This is a very relevant, timely, progressive and news-worthy development. The new administration’s goals to deport criminal immigrants puts a lot of pressure on our courts to enforce these policies.
Ultimately, I predict an increase in post-conviction Motions to Withdraw guilty pleas based on Ineffective Assistance of Counsel under Padilla v. Kentucky, a 2010 United States Supreme Court case which held that defense attorneys must inform their clients whether his plea carries a risk of deportation.
please contact my office if you, family or friends are not U.S. citizens, yet face possible deportation for entering past guilty pleas which were ill-advised by defense counsel. Deportation is a terrible consequence for a prior attorney’s ineffective assistance of counsel.
