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Plea Bargaining -- The defendant's view

The Supreme Court's decision in Padilla v. Kentucky was a landmark.  Not only did it conclude that a non-citizen defendant had to be warned about the consequences of a plea on his immigration status, but it also decided for the first time that a lawyer had to give correct advice on that status, which is a purely collateral matter.

But it left some questions unanswered.  What if the lawyer simply doesn't give advice, instead of the misadvice in Padilla?  The Court noted that a number of states had statutes requiring warnings on immigrant status, and cited Ohio approvingly; does that mean the judge's warning absolves the attorney of any responsibility?

And there was one big question left over.  If the statutory warning isn't given, it comes back, no questions asked.  (Well, one question:  was the motion to vacate filed within a reasonable time, measured from the point where the defendant became aware of deportation proceedings?  That's fair; if you know The Man is coming for you, and you don't do anything about that for eight years, I'm not going to feel sorry for you, and neither is an appellate panel.)

Most of these cases, though, come back on claims of ineffective assistance of counsel. That's a two-pronged analysis:  the attorney's performance has to be deficient, and the defendant has to show prejudice.  In Padilla, that meant he had to show that his attorney had given bad advice, and that had he been warned of the consequences, he would've gone to trial instead of pleading. 

But how do you gauge whether the defendant would have gone to trial?  The Court gave a basic answer to that one last Friday in Lee v. United StatesAnd maybe answers to some other questions.

Lee, a non-citizen, pled guilty to possession of ecstasy with intent to distribute, after being assured by his attorney that he wouldn't be deported.  Wrong answer:  deportation was mandatory for the crime Lee committed.

He went back to court to get his plea vacated.  The government acknowledged that his attorney's performance was deficient, but argued that he couldn't satisfy Strickland's prejudice prong because the evidence against him was overwhelming.  The lower courts agreed with the government.

The Supreme Court didn't.  In a 6-2 decision, Roberts wrote that Lee could have made a rational decision to go to trial.  To Lee, the biggest impact of the conviction was his immigration status; he'd been in the country for 30 years, owned two restaurants, and had no remaining connection to his native South Korea.  Had he gone to trial, he faced the prospect of only a couple more years in prison.  If he pled, he'd face the certainty of deportation.  If he went to trial, as Roberts put it, he "almost certainly" would have been deported.  "That 'almost' could make all the difference," and while not everyone would make the decision to go to trial "we cannot say it would be irrational to do so."

At first glance, Lee seems to be of limited impact.  Lee had some very favorable facts, and Roberts cites the "unusual circumstances of this case." 

But I don't think it's limited.  I think it opens some whole new vistas on plea bargaining.

Let's take an example.  Linda, a State Tested Nurse Assistant, is charged with stealing from a resident at a nursing home.  Bad facts:  it was caught on video.  (Linda has some very sketchy explanations for this.)  It's a 4th degree felony, but the state is willing to take out the elderly spec, and drop it to a 5th degree.  Linda's lawyer assures her that he's checked the regulations, and a felony conviction won't jeopardize her STNA license.  He's wrong.  When she gets canned, she comes back in and tries to vacate her plea.

To be sure, this is a collateral consequence, but so is immigration status.  I think you could make a pretty compelling case that Linda's decision to spurn the plea offer and go to trial would have been an eminently rational one.

But let's say that Linda participated in a scheme of using STNA's to steal from residents, so she's looking at a corrupt practices activity count, a second degree felony, which carries a maximum eight-year prison sentence.  The state's willing to drop that and let her plead to a theft count.  Same answer?

Maybe.  Let's take another case.  Lavar is charged with felonious assault, and it's not a good case.  He can take the plea deal and do about two years, or go to trial and do about six if he's convicted.  That seems easy, but then let's throw in the fact that Lavar has a wife and two kids and a very good job.  To him, the key issue is going to prison; given all he would lose by doing so, it doesn't much matter to him whether he goes away for two or for six. 

Admittedly, there is an inherent problem in building a test around the oxymoronic "reasonable defendant."  Most defendants have gone through their entire lives making one bad decision after another, and expecting them to earn the Good Thinker merit badge on a plea bargain is a serious leap of faith.  Every criminal defense lawyer has his stock of "he shoulda taken the deal" stories. 

Maybe the major impact of Lee, though, is to remind us to more consider what's really important to our clients.  To us, a plea that reduces prison time by two-thirds is a no-brainer.  But we don't have to do the two years.

At any rate, Lee gets his plea vacated just like Padilla did, right?  Well, no.  The Court didn't vacate Padilla's plea; it found deficient performance by his attorney and remanded it back to the trial court for a determination of whether Padilla had been prejudiced, that is, whether he'd have gone to trial if given the correct advice.  A couple years back, the Kentucky courts held that a decision on his part to go to trial wouldn't have been rational because of the overwhelming evidence against him.

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