Editorial published in The New York Times on March 21, 2012
Criminal defendants have a constitutional right to effective lawyers during plea negotiations the Supreme Court ruled on Wednesday.
The cases decided Wednesday answered the question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?
Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.
“In today’s criminal justice system,” the Court wrote, “the negotiation of a plea bargain, is almost always the critical point for a defendant. The Court wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”
One of the cases, Missouri v. Frye, No. 10-444, involved a defendant who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.
But defendant’s lawyer at the time failed to tell his client of the offer. After it expired, defendant pleaded guilty without a plea bargain, and a judge sentenced him to three years.
The Court said that the defendant should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what defendant would have to show to get relief. He would also have to demonstrate that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, the defendant would have to show that the court would have accepted the agreement.
The second case, Lafler v. Cooper, No. 10-209, concerned a defendant who shot a woman in Detroit in 2003 and then received bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer incorrectly said, defendant could not be convicted of assault with intent to murder.
Based on that advice, defendant rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years. The Supreme Court rejected the argument by the prosecutor that a fair trial was all defendant was entitled to.
A federal district judge in that case tried to require officials to provide him with the initial deal or release him. The Supreme Court said the correct remedy was to require the plea deal to be re-offered and then to allow the trial court to resentence defendant as it sees fit if he accepts it. The Justices who disagreed with the opinion said this was “a remedy unheard of in American jurisprudence.”
A law professor said the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship. “It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”
The Court suggested several “measures to help ensure against late, frivolous or fabricated claims.” Among them were requiring that plea offers be in writing or made in open court.
My take: While I applaud the decision, I do not think it is going to have an overwhelming impact. First of all, 94 percent of defendants plead guilty. So for them this is a non-issue. Second, most lawyers are hesitant to go to trial in the first place and so will advise their clients of a plea offer. A federal district judge who has since retired once said that in his experience defense lawyers don’t want to defend, prosecutors don’t want to prosecute, and judges don’t want to judge, an opinion I do not necessarily share but it is food for thought.
Bottom Line: Most defendants will continue to challenge the plea agreement they took rather than the agreement they did not take. As the poet, Angela Maya once said: “things are generally not as good as you think or as bad” which may be of some comfort to the dissenters in this case. – David Zapp, Esq.