Civil and Human Rights

Supreme Court gives Memphis restaurant owner second chance in drug, deportation case

By Michael Collins

Memphis restaurant owner Jae Lee’s attorney assured him repeatedly he could not be deported if he pleaded guilty to a drug charge.

But 7½ years after he accepted a plea bargain and was sentenced to a year and a day in prison, Lee is still behind bars and facing possible deportation to his native South Korea.

A ruling by the U.S. Supreme Court is giving him another chance.

In a 6-2 decision Friday, the court vacated Lee’s conviction on the grounds that he had been given bad legal advice and ruled that he should be able to reopen his case, even if the evidence against him was strong.

Lee, who is a permanent legal resident, could still be deported if he is tried and convicted. But his new attorneys said Friday he was grateful for the decision.

“He was really thankful that someone finally understood the harm that his lawyer’s advice caused him,” said Nashville attorney Patrick McNally, who is part of the legal team that handled Lee’s appeal.

Lee moved to New York from South Korea with his parents when he was just 13. After graduating from a business high school, he moved to Memphis, where he opened the Mandarin Palace Chinese Restaurant in Bartlett and another restaurant in the Midtown area.

In 2008, police obtained a search warrant for Lee’s house and found 88 ecstasy tablets, three Valium tablets, $32,432 in cash and a loaded pistol. A grand jury later indicted him on one count of possessing ecstasy with the intent to distribute it.

Lee admitted that the drugs were his and that he had given ecstasy to his friends, according to court briefs. He then hired a lawyer, Larry Fitzgerald, and entered into plea discussions with prosecutors.

During those talks, Fitzgerald advised Lee that going to trial was risky and that, if he pleaded guilty, he would get a lighter sentence than if he went to trial. Lee told Fitzgerald he was not a U.S. citizen and repeatedly asked if he could be deported if he pleaded guilty. Fitzgerald erroneously told him no.

Only after he pleaded guilty did Lee learn that deportation was mandatory for such crimes. He asked for his guilty plea to be overturned on the grounds that he had ineffective counsel.

In Friday’s opinion, Chief Justice John Roberts, writing for the majority, said that had it not been for the incompetence of Lee’s attorney, he would have known that accepting the plea agreement would have led to his deportation.

“In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation,” Roberts wrote.

Roberts was joined in the majority by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Clarence Thomas and Samuel Alito dissented.

The Constitutional Accountability Center in Washington, which filed a friend of the court brief on Lee’s behalf, praised the ruling as not only a victory for Lee, but also for one of the Constitution’s most basic safeguards: the Sixth Amendment right to effective assistance of counsel.

For Lee, who is still being held at the West Tennessee Detention Facility in Mason, the question is what’s next. Prosecutors could decide to let him remain in the United States or seek to try him on the drug charge.

Regardless, his attorneys said they will ask that he be freed pending the resolution of the case.

“It’s not like he’s a flight risk to leave the country,” said his attorney, John J. Bursch of Michigan. “His whole court battle was to remain in the United States.”

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