Category Archives: Sixth Amendment

U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains

By Daniel Horwitz:

The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting.  The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences.  Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.

The facts of Jae Lee are not in dispute.  In 1982, Mr. Lee legally immigrated to the United States from South Korea.  Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur.  As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws.  If convicted, Mr. Lee would immediately become deportable.  Unfortunately for Mr. Lee and his family, the case against him was also very strong.

After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence.  Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported.  On the basis of that advice, Mr. Lee decided to plead guilty.

Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong.  Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result.  Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.

Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel.  Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail.  First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms.  Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance.  Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.

Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice.  Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3]  Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still.  Specifically:

“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’  What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway.  Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]

The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7]  After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States 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.”  Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.

The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily.  As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8]  Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:

By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.

This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].

Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).

Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.

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[1] 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] 466 U.S. 668, 687 (1984).

[3] Id. at 694.

[4] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[5] 559 U.S. 356 (2010).

[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).

[7] Compare Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).

[8] DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).

Tennessean Op Ed: Right to counsel a fundamental constitutional right

By Daniel Horwitz:

Across the world, whether people who have been accused of committing crimes should have the right to an attorney is something of a disputed question.  Certainly, North Korean “Supreme Leader” Kim Jong-un, Turkish dictator Recep Erdogan, and any number of other modern fascists hold strong views on the matter.  In America, however, the answer to this question has long been settled by the Sixth Amendment to the United States Constitution, which declares with unmistakable clarity that: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”

Given the fundamental importance of the right to counsel in our constitutional democracy, the Republican National Committee’s disgraceful charge that “America deserves better” than a vice president who has represented the criminally accused should be swiftly and forcefully repudiated by all. Continue reading Tennessean Op Ed: Right to counsel a fundamental constitutional right

Making a Mess: The Indigent Defense Crisis Undermining the Criminal Justice System Throughout Tennessee

By Daniel Horwitz:

This Sunday evening, veteran Wisconsin defense attorneys Dean Strang and Jerry Buting – the trial lawyers who became overnight sensations following the release of the award-winning Netflix documentary “Making a Murderer” – arrived in Nashville to talk criminal justice reform.  The wide-ranging discussion – billed as “A Conversation on Justice” – touched upon several aspects of America’s poorly-functioning criminal justice system from juvenile interrogation to legal ethics.  Most prominently featured, however, was a plea to improve the sorry state of indigent defense in the United States.

“If we are going to keep putting as many people in prison as we do now,” Strang told the sold-out TPAC auditorium, “then we are at least entitled to a reliable determination of guilt.”  (The United States has roughly 5% of the world’s population, but nearly a quarter of the world’s prisoners.)  Buting concurred.  Compensated at just $40 per hour, “Wisconsin’s appointed criminal defense attorneys are the lowest-paid lawyers in the entire country,” he claimed.  For context, Strang added that “it costs me eighty dollars per hour to keep my law firm’s lights on.”

As moderator Stacey Barchenger – who covers the courts and criminal justice beat for The Tennessean – intimated in response, the state of indigent defense in Tennessee is not much better.  In fact, for several reasons, it’s considerably worse.  And the consequences for society – wrongful convictions and a two-track justice system for the rich and poor – are deplorable.

As any casual observer of American crime drama knows, (almost) everyone in the United States who is accused of committing a crime has the right to an attorney.[1]  Additionally, if a person cannot afford an attorney (and more than 80% of defendants fall into this category), then an attorney will be provided at taxpayer expense.  Whether a defendant receives a public defender (a lawyer who is employed full time by the government to represent poor defendants) or an appointed attorney (who is typically, but not always, a solo practitioner) depends on a variety of factors including geography, prior criminal history, and whether there is more than one defendant involved in a particular case.  Although different in several important ways, the pressures facing public defenders and appointed counsel due to inadequate funding – as well as the consequences of those pressures on poor defendants – frequently overlap.

The right to counsel in state criminal cases – guaranteed by the Sixth Amendment to the United States Constitution and incorporated against the states via the Fourteenth – traces back to the Supreme Court’s landmark 1963 decision in Gideon v. Wainright.[2]  Subsequently, the Supreme Court further established that the right to counsel was not merely intended to provide criminal defendants with the euphemistic “warm body with a law degree.”   Instead, the Sixth Amendment is supposed to guarantee the accused a right to “the effective assistance” of counsel as well.[3]

“In practice,” however, “for a variety of reasons, the impact of Gideon has never come anywhere close to reaching its aspirational goals.”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harvard Latino L. Rev. __, n. 41 (forthcoming 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757799.  Although multifaceted, the main reason why the right to competent counsel has remained so illusory for indigent defendants more than fifty years after Gideon is simple: the American public just isn’t willing to pay for it.  Dollar for dollar, taxpayers would prefer to spend their money on virtually anything in the world before paying for free attorneys for poor people who have been accused of committing crimes.  Accordingly, the funding that has been appropriated for indigent defense has never even approached the amount that is actually necessary to afford poor people a meaningful opportunity to defend themselves.

The solutions to this problem, however, are somewhat more complex.  Given the profound unpopularity of criminal defendants – and given that poor people cannot afford to hire lobbyists and generally do not have a receptive audience in most (if any) state legislatures – adequate funding for indigent defense is never likely to come voluntarily.  Instead, courts must embrace their role as enforcers of constitutional rights and either order legislatures to appropriate sufficient funding for indigent defense or refuse to allow prosecutions to go forward until such funding has been provided.  Public Defenders – many of whom handle hundreds of cases at a time – must also begin pushing back against courts that tolerate inadequate funding by refusing to take on caseloads that exceed ethical standards.  And when both legislatures and courts fail to meet their obligations, advocates need to sue them.  Frustratingly, although reformers do achieve the occasional victory in this regard, successes are usually short-lived, and they are always a long time coming.

For its part, though, Tennessee’s nearly wholesale abdication of its responsibility to ensure that poor defendants receive effective representation provides a fantastic case study on how to run an indigent defense system in a way that virtually guarantees it will fail.  Although funded by the General Assembly, the compensation rate for appointed counsel in Tennessee is set by the Tennessee Supreme Court.  Specifically, Tennessee Supreme Court Rule 13 provides that “[t]he hourly rate for appointed counsel in non-capital cases shall not exceed forty dollars ($40) per hour for time reasonably spent in trial preparation and fifty dollars ($50) per hour for time reasonably spent in court.”  This rate has also been unchanged since 1994, meaning that appointed lawyers for poor defendants are typically the lowest paid professionals in the courtroom.  (In contrast, Tennessee’s judges are paid rather handsomely; based on a just-published survey of judicial salaries conducted by the National Center on State Courts, salaries of Tennessee Supreme Court Justices currently rank twelfth-best in the nation, while salaries for judges who sit on lower appellate courts and in trial courts rank ninth.)

There are several obvious problems with Tennessee’s appointed counsel compensation arrangement that are worth highlighting.

First, there is no justifiable basis for compensating “time reasonably spent in trial preparation” less than “time reasonably spent in court.”[4]  Trial preparation – including meeting with defendants, interviewing witnesses, preparing pre-trial motions, conducting legal research, investigating mitigating circumstances, filing discovery requests, and any number of other activities that are essential to effective trial advocacy – are every bit as important as time physically spent in court.[5]  Longstanding U.S. Supreme Court precedent also supports this reality.  As far back as 1932, for example, the Supreme Court observed that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him” – not merely at trial – and that “[w]ithout it, though he be not guilty, [a defendant] faces the danger of conviction because he does not know how to establish his innocence.”[6]

Even so, Tennessee remains one of six states in the United States to pay a reduced hourly rate for trial preparation.[7]  And because lawyers respond to financial incentives much like other humans, that disparity creates an economic incentive to maximize time spent in court and minimize time spent out of court.  For example, when New York’s disparate compensation scheme – $40 per hour for in-court work and $25 per hour for out-of-court work – was struck down as unconstitutional back in 2003, the reviewing court did so in part on the basis that “[t]he lower rate paid for out-of-court time, in particular, operates as a substantial disincentive to perform” many of the pre-trial tasks that are essential to a defendant’s representation.[8]

A second problem is that Tennessee’s appointed counsel compensation rate – a maximum of $50 per hour – is far too low.  To the minimum wage worker or the service employee making just a fraction of that per hour, that assertion likely strikes a nerve.  But factoring in the fact that the “rate of compensation does not take into account the various overhead costs associated with the practice of law, which include the costs of reference materials, office equipment, rent, travel, malpractice insurance and, for most young attorneys, student loans” – not to mention payroll expenses for office staff – the picture becomes a great deal less rosy.[9]  For example, a 2008 survey found that the average annual overhead cost of running a small law firm was $160,000 per lawyer, which roughly translates to overhead expenses of $80 per hour assuming 2,000 billed hours per year.[10]  Accordingly, as Strang himself lamented: “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”

Compared with private counsel – whose standard hourly rates (summarized here by the Laffey Matrix) are often 10 to 20 times higher than Tennessee’s appointed compensation rates – this disparity becomes especially pronounced.  But even confined to the universe of appointed criminal defense work, Tennessee’s compensation rate lags substantially behind other jurisdictions.  For example, Alabama pays its appointed criminal defense attorneys $70 per hour.  Arkansas pays them $50-$90 per hour.  South Dakota musters $84.  And compensation rates for non-capital federal cases – which are funded separately by the Federal Criminal Justice Act – currently stand at $129 per hour.  In fact, on a national scale, Tennessee’s appointed attorneys are arguably paid the second-lowest effective rate in the entire country.[11]  Add in the fact that non-attorney staff members in the Administrative Office of the Courts occasionally deduct appointed attorneys’ bills on the basis that they spent too long on a given task, it’s no wonder that Tennessee’s appointed compensation scheme is held in such universal disregard by those involved in it.

Third, and most egregiously, Tennessee’s compensation rates are capped at set maximums.  With few exceptions, attorney compensation is limited to $1,000 for misdemeanors and $1,500 for felonies.  The result of such caps is that after attorneys have spent approximately twenty to thirty hours on a given case, they immediately begin losing money.  Thus, if an attorney is to make a decent living taking appointed cases, then the only feasible way to do so is to maximize the number of cases cleared before a case’s compensation limit has been reached—a strategy that is not-so-fondly referred to as “meet ‘em and plead ‘em.”  It also goes without saying that given the seriousness and complexity of criminal cases – not to mention the severity of their potential consequences – many clients’ cases cannot reasonably be concluded in thirty hours.  Especially under circumstances when a client is innocent and wants to go to trial, criminal cases can and often do take years to complete.

Predictably, this capped compensation arrangement can introduce deeply troubling and profoundly perverse incentives into an indigent defendant’s representation.  By placing enormous financial pressure on attorneys to conclude cases immediately once they have reached the maximum compensation limit (usually via a plea bargain), the caps create a serious conflict of interest between attorneys and their clients that probably violates Rule of Professional Responsibility 1.7(2) (“a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.”).  As a consequence, indigent defendants all-too-often do not get the zealous advocacy and effective representation to which they are supposed to be constitutionally entitled.

The results of such idiosyncrasies – (1) disparate pay between in-court and out-of-court work; (2) low compensation rates; and (3) per-case caps on compensation – are measurably terrible for criminal defendants.  The rate of wrongful convictions even in death penalty cases is conservatively estimated to be about 4.1%.  This estimate is even more horrifying given that multiple exceptions (such as higher compensation rates, lifted compensation caps, and dual appointments of attorneys who are required to have significant trial experience) are routinely permitted when the death penalty is at stake.  Accordingly, one might reasonably expect that the wrongful conviction rate for less serious criminal cases is significantly higher.

On a broad scale, extensive evidence also indicates that “those with publicly funded counsel are [both] more likely to be convicted than those with privately paid attorneys” and more likely to receive longer sentences.[12]  Clients represented by salaried public defenders (who – although similarly underfunded – at least have “steady salaries, financial and institutional independence”) also enjoy measurably better outcomes than clients represented by appointed attorneys, who regularly experience the perverse incentives described above.[13]  Accordingly, like the rest of the country, Tennessee boasts a two-track justice system that is definitely not based exclusively on determining guilt versus innocence.  Instead, it has one justice system for the rich, and another for the poor.

Happily (potentially), the Tennessee Supreme Court has recently launched an Indigent Representation Task Force with the supposed goal of fixing these problems.  It is not clear, however, what this task force expects to discover.  When the results are ultimately announced, nobody will be surprised to learn that Tennessee’s decision to fund indigent defense at very nearly the lowest rate in the nation results in terrible outcomes for poor people.  Even if the task force decides to recommend changes to Tennessee’s compensation system, the recommendations are most likely to track those that were previously advanced by the Tennessee Bar Association and other interested organizations back in 2004.  The notion that any of the problems being considered during the Task Force’s “listening tour” are new or unknown, however, is farcical.  The topic of indigent defense is well understood, and it has been studied extensively both locally and nationally on too many occasions to count.

If Tennessee is serious about fixing its indigent defense system – and for now, there is no real indication that it is – then the solutions are simple but politically unpopular.  At a minimum, Tennessee’s compensation rates need to double, the compensation caps need to be lifted, and the disparity between in-court and out-of-court work needs to be done away with for good.  Public Defenders’ offices also need to be funded at a rate that permits attorneys to keep their caseloads below defined national standards.  Whether any of these reforms will actually be put into effect, however, only time will tell.  Until then, poor defendants in Tennessee will continue to serve as data points in a human trial aimed at determining how to provide the least effective criminal representation possible, and sadly, almost nobody will care.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Contrary to popular belief, everyone accused of a crime does not actually have the right to an attorney.  Instead, the right to counsel attaches only when a defendant is charged with a felony, see Gideon v. Wainwright, 372 U.S. 335 (1963), or when actual incarceration is imposed.  See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (“the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”) (emphasis added).  Thus, accused misdemeanants can and often do go unrepresented, resulting in significant collateral consequences that the justice system has never adequately addressed.

[2] Gideon, 372 U.S. 335.

[3]  Strickland v. Washington, 466 U.S. 668, 687 (1984) (“the proper standard for attorney performance is that of reasonably effective assistance.”).

[4] See generally, John P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Part I 12-13, Indigent Defense Counsel of the National Association of Criminal Defense Lawyers (March 2013), https://www.nacdl.org/reports/gideonat50/rationingjustice/.

[5] Id.

[6] Powell v. Alabama, 287 U.S. 45, 69 (1932).

[7] Gross, supra, at 12.

[8] New York Cty. Lawyers’ Ass’n v. State, 763 N.Y.S.2d 397, 407 (Sup. Ct. 2003).

[9] Gross, supra, at 8.

[10] Id. at 16 (citing Altman Weil, Survey of Law Firm Economics: Trend Comparison of Overhead Expenses (2003)).

[11] Wisconsin and Oregon respectively compensate their attorneys at $40 per hour and $45 per hour independent of what work is being performed, but unlike Tennessee, neither state imposes maximum compensation limits, which have the consequence of reducing the effective compensation rate realized.  See Gross, supra, at 29 & 32.  However, attorneys in Cook County, Illinois receive $40 per hour in court and $30 per hour out of court, with maximum compensation caps even lower than Tennessee.  Id. at 22.  Some jurisdictions have flat fee rates or higher hourly rates but lower compensation caps, however, making cross-jurisdictional comparisons somewhat difficult.  Id. at 20-32.

[12] Erwin Chemerinsky, The Case Against the Supreme Court 147 (2014).

[13] James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154, 188 (2012).