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June 8, 2016

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 at 12:25 PM | Permalink

Comments

"But our duty is neither to prosecute nor to pardon; it is simply to say 'what the law is.' Marbury v. Madison, 5 U.S. 137,
177 (1803)."

OUCH !

I encountered an evil , rogue tyrant (ERT) who managed to be appointed to a trial court ; who consistently refused to follow the rule of law , including Marbury's what the law is .

It would be nice to know the ratio of Undercover LEO's:Users/Dealers .

Kindly , Nemo Me Impune Lacessit

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