Blog Post: Supreme Court supports immigrant’s right to understand consequences of conviction

The author of the following post about the Supreme Court’s decision in Jae Lee v. United States drafted an amicus brief in the case for several national immigrant rights organizations. In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for so long and had served in the military in Vietnam. However, Padilla’s case was remanded for a lower court determination of whether his trial lawyer’s incompetence caused him prejudice, since a defendant can win an ineffective assistance of counsel claim under the Court’s 1984 decision in Strickland v. Washington only by showing both attorney incompetence and prejudice. Last week, in Lee v. United States, the Court considered the standard for proving prejudice, ruling in Lee’s favor in a 6-2 decision by Justice Roberts (Justices Alito and Thomas dissented). The Government conceded that Jae Lee’s trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The only issue for the Court was the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt

Effective Plea Bargaining Counsel

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper. If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention. In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals. The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process

Amicus Brief in Jae Lee v. United States

This amicus brief was filed on behalf of the Immigrant Defense Project, the Immigrant Legal Resource Center and the National Immigration Project of the National Lawyers Guild in support of the petitioner in Jae Lee v United States, No. 16-327. The Supreme Court ruled in favor of Mr. Lee, holding that Lee met his burden of showing that his attorney\u27s erroneous advice about deportation prejudiced him. The Court found that it would not have been irrational for Lee to reject the plea he accepted and go to trial, despite the fact that he was almost certain to lose at trial. Chief Justice Roberts wrote the 6-2 opinion

The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of Sexually Violent Predators

Thomas Steele pleaded guilty to rape and other charges in exchange for a sentence of twelve to thirty years in a Massa- chusetts state prison.\u27 Shortly before he became eligible for pa- role on this criminal conviction, the state classified Steele as a sexually dangerous person. Although Steele has completed his prison sentence, the state continues to confine him under a Massachusetts law that allows for the involuntary civil com- mitment of sexually dangerous persons. The order commit- ting him stated that he could be held for a period ranging from one day to life

Soluble metals of residual oil fly ash alter pulmonary host defense in rats

Incidences of high levels of air pollution have been correlated with increased morbidity and mortality in susceptible populations. Inhalation of the combustion-derived pollutant, residual oil fly ash (ROFA), has been shown to impair lung defense mechanisms in laboratory animals and susceptible populations. The hypothesis of these studies was that the soluble metals in ROFA would increase susceptibility to pulmonary infection in rats, and that the primary metal responsible for the increase is soluble Ni. To investigate the hypothesis, three specific aims were established: (1) determine if soluble metals in ROFA cause a decrease in bacterial clearance from the lungs of rats, (2) determine the potential mechanisms by which the soluble metals suppress the innate and adaptive pulmonary immune response to infection, and (3) establish what metal or metal combination would account for the alterations in pulmonary host defense.;To investigate this, an in vivo infectivity model was employed where adult rats were intratracheally instilled with ROFA (R-Total), soluble (R-Soluble) or insoluble ROFA (R-Insoluble), or the major individual soluble metals or metal combinations in ROFA on day 0. Control groups included the vehicle control (phosphate-buffered saline) and the soluble ROFA sample after metals had been extracted from the solution by chelation (R-Chelex). On day 3, rats were intratracheally inoculated with Listeria monocytogenes as the model pathogen. Pulmonary clearance, morbidity, cellular profiles and phenotypes, lung injury parameters, and cytokine and oxidant production were monitored on day 3 prior to infection, and for 1 week after infection (days 6, 8, and 10).;The first study revealed that the primary metal constituents of ROFA were iron (Fe), nickel (Ni), vanadium (V), aluminum (Al), and zinc (Zn). The soluble fraction of ROFA contained Fe, Ni, Al, and Zn, but very little V. R-Soluble was found to significantly decrease bacterial clearance from the lungs of rats to a similar degree as R-Total, whereas R-Insoluble did not alter clearance of bacteria when compared to control. In addition, removal of the metals from R-Soluble abolished the increase in susceptibility to infection. In study 2, the R-Soluble sample was shown to induce a lung injury and inflammation prior to and post-infection which was comparable to, if not more severe than, R-Total. Post-infection, R-Soluble was found to increase neutrophil, macrophage, and lymphocyte influx into the lungs, and to increase NO and IL-6 production, indicating an exacerbated acute phase response and excess inflammation in this group. In addition, macrophage function appeared to be inhibited, as indicated by the increased bacterial burdens at all time points in the R-Soluble group, and T cell activity was also suppressed, demonstrated as reduced interleukin (IL)-2 and IL-4. (Abstract shortened by UMI.)

The Innocence Movement and Misdemeanors

In recent years, the Innocent Movement has begun to focus its attention on wrongful misdemeanor convictions as a systemic problem. This Article analyzes eighty-five documented misdemeanor exonerations and concludes that innocence has been demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal “no controlled substance” despite the individual having pled guilty to misdemeanor drug possession; and police body camera or citizen videos that surface after a misdemeanor conviction to contradict the factual basis for that conviction. Strategic use of these relatively definitive methods of revealing wrongful misdemeanor convictions can call attention to the flaws in misdemeanor prosecutions and help to improve accuracy in misdemeanor cases, just as the Innocence Movement has used DNA evidence to do so in the felony context. This Article also addresses the Innocence Movement’s nascent interest in misdemeanors as a normative matter. The hope is that some innocent people wrongly convicted of misdemeanors will be exonerated, which will allow the Movement to highlight systemic causes of such errors in reform efforts that will ultimately benefit all individuals facing misdemeanor charges. For example, the Harris County, Texas mass misdemeanor drug exonerations have highlighted how bail is used to extract guilty pleas. On the other hand, an innocentric focus on misdemeanors could overtake an existing, yet still developing, narrative of the disproportionate and unfair direct and collateral consequences of misdemeanor convictions. These consequences can last a lifetime and restrict an individual’s access to employment, housing, and education. Defining the “wrong” in “wrongful misdemeanor conviction” as the conviction of an innocent person ignores the “wrong” of low-level public order offenses that result in permanent criminal records and wildly disproportionate consequences for individuals and their families. This latter narrative has fueled recent decriminalization, sealing and expungement, and other reforms to mitigate the disproportionate consequences of a misdemeanor record. The Innocence Movement should take care to avoid undermining these broader questions about whether the harsh punishments attached to misdemeanors are ever appropriate, regardless of guilt or innocence

The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of Sexually Violent Predators

Thomas Steele pleaded guilty to rape and other charges in exchange for a sentence of twelve to thirty years in a Massa- chusetts state prison.\u27 Shortly before he became eligible for pa- role on this criminal conviction, the state classified Steele as a sexually dangerous person. Although Steele has completed his prison sentence, the state continues to confine him under a Massachusetts law that allows for the involuntary civil com- mitment of sexually dangerous persons. The order commit- ting him stated that he could be held for a period ranging from one day to life