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Two Important US Supreme Court Cases: Analysis

Missouri v. Frye, No. 10-444 (U.S. Sup. Ct. March 21, 2012) (Justice Kennedy) Lafler v. Cooper, No. 10-209 (U.S. Sup. Ct. March 21, 2012) (Justice Kennedy)

In these two companion decisions, a sharply divided Supreme Court held for the first time that criminal defendants have a constitutional right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice. In addition, the Court held that, even though there is no constitutional right to a plea bargain, "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."

Writing for a 5-4 majority in both cases, Justice Kennedy noted that "ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Then, in Frye, he further explained:

"The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours 'is for the most part a system of pleas, not a system of trials,' it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. 'To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system'." (Internal citations omitted).

Under those circumstances, Justice Kennedy reasoned that the right to counsel must extend to the plea- bargaining process because of the "simple reality" that plea bargaining is so pervasive in our system that the negotiation of a plea "is almost always the critical point for a defendant." He therefore wrote that "the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences."

Calling the majority's rulings "extraordinary," and "incoherent," Justice Scalia wrote a grumpy dissent in both cases that was joined by Justices Roberts, Thomas and Alito. Justice Scalia asserted that the new constitutional right created by the majority "upends decades of our cases, violates a federal statute, and opens a whole new boutique of constitutional jurisprudence ('plea-bargaining law') without even specifying the remedies the boutique offers."

As a matter of interest, Justice Scalia openly conceded that the existing system of plea-bargaining is deeply flawed and "worthy of regulation." And he even made the surprisingly candid admission that the current system "presents grave risks of prosecutorial overcharging that effectively compels" innocent defendants to plead guilty "to avoid massive risk." In Lafler, he explained further by writing:

"In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often-perhaps usually-results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

"Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, 'it is the criminal justice system'." (Internal citations omitted).

Frye

In this case, the respondent, Galin Frye, was charged with a felony charge of driving with a revoked license. A prosecutor offered to let him plead guilty to a misdemeanor in exchange for a 90-day sentence; but Frye's lawyer at the time failed to tell his client about the offer. After the offer expired, Frye pled guilty (without any plea deal) to the charged felony; and a judge sentenced him to three years in prison.

Frye first learned about the expired plea offer while he was incarcerated, when post-conviction counsel discovered it. Frye then moved to vacate his conviction, on the ground that he had been denied the effective assistance of counsel when his defense counsel failed to inform him of the plea offer. Ultimately the Missouri Court of Appeals agreed with Frye's contention and reversed his conviction; see Frye v. State, 311 S.W.3d 350 (Mo. Ct. App. 2010). The Missouri court concluded that Frye had been denied effective assistance of counsel under the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

On appeal to the Supreme Court, the majority framed the issues before it as follows:

"This case arises in the context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later. The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel's deficient performance. Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in [the Lafler case]. "

Justice Kennedy answered the first question with an emphatic "yes," stating: "[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."

On the second question, the majority held that "defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law."

Applying these standards to the respondent in this case, the majority concluded that the lower court had failed to require the defendant to show "that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court," which were questions of state law that the majority left to the lower court to determine on remand.

In his dissent, Justice Scalia characterized the majority's largely undefined legal standard as requiring "retrospective crystal-ball gazing posing as legal analysis," which will confound lower courts and result in a flood of litigation.

Lafler

In the second case, the petitioner, Anthony Cooper, shot a woman in Detroit and he was charged with a number of crimes including assault with intent to murder. On two separate occasions, the prosecution offered to reduce the charges in exchange for a guilty plea. The first such offer called for a sentence of four to seven years in prison. However, Cooper rejected both of the offers after his counsel erroneously persuaded him that the prosecution would be unable to establish any intent to murder because the victim had been shot below the waist.

Cooper then went to trial and was convicted on all counts; and he received a mandatory minimum sentence of 15 to 30 years in prison. After exhausting his state appeals, Cooper filed for Federal habeas relief, arguing that his attorney's erroneous advice to reject the plea constituted ineffective assistance of counsel. The district court granted a conditional writ; and, on appeal, the Sixth Circuit affirmed in an unpublished decision reported at Cooper v. Lafler, 376 Fed.Appx. 563 (6th Cir. May 11, 2010).

The State of Michigan appealed to the Supreme Court; and the issues before the Court essentially were: When a criminal defendant turns down a plea offer based on seriously deficient advice from his lawyer, and then receives a harsher sentence after being convicted by a jury after a fair trial, can the defendant later seek to overturn his sentence on the ground that his counsel was unconstitutionally deficient in advising him to reject the more generous plea offer? If so, what is the proper remedy for ineffective assistance of counsel in that situation?

The State (and the dissenting Justices) argued what Justice Kennedy described as "one general contention" - namely that "a fair trial wipes clean any deficient performance by defense counsel during plea bargaining." Justice Kennedy firmly rejected that contention, stating that it "ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials."

Then, applying the constitutional effective-assistance of counsel standards laid out in Strickland, Justice Kennedy found that Cooper's counsel had provided deficient performance by advising him of an incorrect legal rule, and that Cooper had suffered the requisite level of prejudice because he lost the opportunity to take the more favorable sentence offered in the plea.

Turning, finally, to the appropriate remedy for the constitutionally ineffective assistance of counsel that Cooper had received, Justice Kennedy wrote:

"As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. . . . Today's decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case."

In dissent, Justice Scalia fervidly called that "a remedy unheard of in American jurisprudence." He wrote:

"I suspect that the court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted and properly sentenced, and any 'remedy' provided for this will do nothing but undo the just results of a fair adversarial process."

While the consequences of these two rulings are hard to predict, they appear likely to have a profound impact on the criminal justice system; and the informal procedures governing plea bargains that have existed up to now will certainly be subject to new constraints, especially when bad legal advice leads defendants to reject favorable plea offers. In sum, we believe that these two decisions represent a significant - and sorely needed - expansion of the rights of criminal defendants in the all important field of plea bargaining where, until now, only the prosecutors had any rights.

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