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SCOTUS: Defendants with no viable defense may be able to establish prejudice under Padilla

Jae Lee v. United States, USSC No. 16-327, 2017 WL 2694701 (June 23, 2017), reversing Lee v. United States, 825 F.3d 311 (6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Lee’s lawyer told him he would not be deported if he pleaded guilty to a drug charge. His lawyer was wrong, so he performed deficiently under Padilla v. Kentucky, 559 U.S. 356 (2010). But can Lee establish his lawyer’s indisputably wrong advice prejudiced him, i.e., that he would have gone to trial had he known he would be deported even though he had no real prospect of acquittal? Yes, says a majority of the Supreme Court, rejecting the approach urged by the Government and adopted by some federal circuits.

The Government asks that we, like the Court of Appeals below, adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. …. As a general matter, it makes sense that a defendant who has no realistic defense to a charge supported by sufficient evidence will be unable to carry his burden of showing prejudice from accepting a guilty plea. But in elevating this general proposition to a per se rule, the Government makes two errors. First, it forgets that categorical rules are ill-suited to an inquiry that we have emphasized demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor, 529 U.S. 362, 391 (2000) (internal quotation marks omitted); Strickland [v. Washington],  466 U.S. [668,] 695 [(1984)]. And, more fundamentally, the Government overlooks that the inquiry we prescribed in Hill v. Lockhart [474 U.S. 52 (1985)] focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. See Hill, 474 U.S., at 59. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.

But common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U.S. 289, 322–323 (2001). When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20–year sentence may nevertheless choose trial, if the prosecution’s plea offer is 18 years. Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.

The Government urges that, in such circumstances, the possibility of an acquittal after trial is “irrelevant to the prejudice inquiry,” pointing to our statement in Strickland that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” 466 U.S., at 695. That statement, however, was made in the context of discussing the presumption of reliability we apply to judicial proceedings. …. But where we are instead asking what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking.

(Slip op. at 8-10).

While it rejects a per se rule, the Court still emphasizes that showing prejudice “is never an easy task,” Padilla, 559 U.S. at 371. But Lee manages to do it under “the unusual circumstances” of his case. (Slip op. at 10). Both he and his lawyer testified that deportation was the determinative issue in his decision to plead, and that’s backed up by his expression of concern about deportation during the plea colloquy. (Slip op. at 3, 10-11). Other circumstances are crucial, too: He came to this country as a child, has been here 35 years, has never returned to, and has no ties with, his country of birth (South Korea); he built successful lawful businesses here and is the caretaker for his elderly parents, who are naturalized citizens. (Slip op. at 1-2, 12). This is substantial and uncontroverted evidence contemporaneous with his plea that substantiates his claim about the overriding importance of deportation to his deciding to plead. (Slip op. at 1013).

Still, the Government insists, these facts don’t show it was rational for Lee to reject the plea agreement. He had no defense and would be deported in any event, so going to trial would only result in a longer sentence before that happened.

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. …. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

A dissent (Thomas, joined by Alito) contends the majority’s decision goes beyond Strickland and Hill. (Dissent at 1-11).

As noted in our post on the cert grant, the Seventh Circuit had recognized that a defendant like Lee could rationally decide to go to trial even with no viable defense, thus effectively rejecting the per se rule the Sixth Circuit adopted. DeBartolo v. United States, 790 F.3d 775 (7th Cir. 2015). Wisconsin has recognized this, too, at least in the immigration context. State v. Mendez, 2014 WI App 57, ¶17, 354 Wis. 2d 88, 847 N.W.2d 895.

Also, note that the majority’s response to the dissent discusses other kinds of errors by counsel that might result in the defendant giving up a trial, such as failing to investigate a viable defense or to move to exclude evidence. Showing prejudice in that situation might require the defendant show he would have been better off going to trial. (Slip op. at 5-8). You should review this decision if you’re litigating that kind of claim, for it is one of the Court’s most direct statements on the matter since Hill.

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