Yesterday the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.

Currently, the Padilla case and it’s progeny put criminal lawyers in a bind – while a criminal lawyer is generally not an expert in immigration law, after Padilla until this point the Supreme Court has expected criminal lawyers to give reasonably correct advice on immigration issues often far outside their scope.

If Lee loses his case it could create an entirely new standard – criminal lawyers are expected to give good advice on immigration issues, that is unless the government has a really strong case against the defendant with immigration questions. As much as I don’t appreciate being expected to be an immigration expert on top of a criminal law expert, I don’t see how an exception for “really strong cases against the defendant” would be workable. This will be really interesting to watch.

Again, a big thank you to SCOTUSBlog for it’s wonderful case analysis

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