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Our Right to Trial by Jury Is under Attack, the Supreme Court Can Affirm and Protect It

Tim Lynch

Today, the Supreme Court will be hearing oral arguments in a
case that raises important questions regarding both the right to
counsel and trial by jury.

Jae Lee came to the United States from South Korea in 1982. At
the time, he was just a boy in the care of his parents. Now 48
years old, Lee has lived in the U.S. as a lawful permanent resident
for decades. He went to school in New York, but eventually moved to
Memphis and got into the restaurant business. According to federal
prosecutors, Lee also became a small time drug dealer and, after
his arrest, he was facing serious criminal charges.

Like many persons who are accused of a crime, the prosecution
offered Lee some leniency in prison time if he would agree to
surrender his constitutional right to trial by jury. Naturally, Lee
wanted to know all of the legal consequences of accepting the
government’s plea offer — so he asked his attorney
whether he would be subject to deportation to South Korea.
Lee’s attorney assured him that deportation would not be a
problem and advised him to accept the plea bargain.

The Constitution is
supposed to guarantee the right to trial by jury. We will soon see
whether the Supreme Court will come to the defense of that

On that recommendation, Lee pled guilty.

As it turned out, Lee received bad legal advice. His conviction
meant he was now subject to deportation under federal law. After
serving several years in prison, he would eventually be deported to
South Korea and essentially banished from the U.S.

On appeal, Lee argues that he only pled guilty because of the
recommendation from his lawyer. He wants to take his case before a
jury. Prosecutors agree that Lee received lousy legal advice, but
they say his conviction should still stand because the evidence
against him is so strong that a jury trial will not change his
legal predicament. They say a jury would find Lee guilty and, as a
result, he would still be facing deportation.

The Supreme Court should reject the government’s argument
that there doesn’t have to be a trial because everyone
already knows what the outcome would be. The Constitution
guarantees our right to a jury trial in “all criminal
prosecutions.” Our commitment to this constitutional
safeguard is tested when the government haughtily claims a trial
isn’t necessary.

Some appellate courts have rejected pleas for new trials by
persons in similar circumstances as Lee’s. Why order a new
trial, they say, when the accused can only succeed by “jury
nullification,” which is the doctrine that says a jury can
return a “not guilty” verdict even after it has
concluded that the person on trial violated the law?

Well, for one thing, there’s nothing wrong with jury
nullification. The Framers of our Constitution believed that jury
nullification was part and parcel of what a jury trial was all
about. Our second president, John Adams, wrote that it was not only
a 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

The Supreme Court itself has noted that the jury is supposed to
be the “conscience of the community” and should check
the government when necessary to protect individuals from injustice
or oppression. The jury cannot perform that function if it is told
that it must always apply the law mechanically, without regard to

Take the case of John David Mooney. In 2002, Mooney’s wife
pulled a gun on him during a heated argument. He took the gun away
from her and he went to a nearby police station to turn in the
weapon because, as an ex-felon, he was not allowed to possess
firearms. Unbelievably, prosecutors turned around and filed charges
against Mooney for unlawful possession of a firearm!

Mooney’s attorney advised him to accept a plea bargain
because the case against him was open and shut. His status as an
ex-felon was an undeniable fact and he had already admitted to
possessing the firearm. Very reluctantly, Mooney pled guilty to a

However, like Lee, Mooney got bad legal advice. Had he gone to
trial, he could have made a “justification” defense to
a jury. Upon learning this, Mooney appealed his case with the
complaint that he received bad legal advice, and that had he
received correct legal advice he would have insisted on his right
to a jury trial. When an appeals court overturned Mooney’s
conviction, the prosecutors dropped the case entirely instead of
going to trial.

Jae Lee is facing prison time and banishment from the United
States. Before that happens, Lee wants to have his day in court.
The Constitution is supposed to guarantee his right to trial by
jury. We will soon see whether the Supreme Court will come to the
defense of that guarantee.

Tim Lynch is the
director of the Cato Institute’s Project on Criminal Justice.