17 minutes to read

One of the more difficult things to deal with as a criminal defense attorney is feeling responsible for someone’s life, liberty, and, of course, happiness.

There are all kinds of reasons why it isn’t true that a criminal defense attorney is responsible for these things, but the feeling of responsibility is often there anyway (at least for me).

Recognizing that the attorney is not responsible for it is not to say that the client is responsible for it. More innocent people than you might imagine are arrested and charged with crimes. [1]It is the existence of plea bargaining has raised this from “some” to “more than you might imagine.” This is perhaps fodder for another post. I think the fact that plea bargaining exists, combined with the fact that potential sentences are so high, means the police arrest more innocent people. Because they can rest assured that even innocent people will plead guilty if it means “only” losing, say, three years of their lives, rather than five, ten, twenty, or more, and for other reasons that, as I said, are fodder for another post, the police get away with shoddy investigations and snap judgments. Some are not, of course, innocent. Let’s face it, the police don’t get it wrong every time or, as I like to say, “even a blind squirrel gets a nut once in awhile.”

Complicating this whole mess is the combination of a system that tries hard to stop people from exercising their constitutional rights, and the “process” of plea bargaining upon which it depends.

Yesterday, the plea bargaining process became just a little more complicated.

As I wrote just a short time ago, I am not a big fan of plea agreements. I have always considered them, as Justice Scalia labeled them, “a necessary evil.”

Where I differ with Justice Scalia, I guess, is in my belief that they are evil because they are necessary. And the fault for that lies squarely with Justice Scalia and his minions, both on and off the United States Supreme Court, because under their aegis the individual States are free to ignore any sense of true justice when it comes to punishment: the Eighth Amendment of the United States Constitution was killed off a long time ago.

To quote one of the United States Supreme Court’s newest opinions on the matter: [2]The Court was, itself, quoting Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006).

[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial. [3]Missouri v. Frye slip opinion at 6 (March 21, 2012) (alteration in the Court opinion; emphasis added).

So much for the Eighth Amendment. This recognition that “even Congress or the prosecutor” would think the longer sentences are not appropriate and — more importantly — that the sentences exist for the sole purpose of making sure people don’t try to claim their constitutional rights…well, you’d think this would implicate the Eighth Amendment. But that Amendment died and was buried so long ago that even the Supreme Court doesn’t remember it.

So I’ll pretend not to, as well.

Aside from the Eighth Amendment, which we’re not going to discuss, there is so much other blogging that could come out of these two decisions that I could write posts for days.

I could talk about the fact that this just impresses, again, that being a criminal defense attorney is not such a simplistic proposition that it can be handled by posting your question and getting free answers from Avvo.com, or that fees should be capped by websites and conglomerates that can force good attorneys to choose between good representation or starvation — or, at least, try.

But Carolyn Elefant wrote a really good post about that this morning (although it had nothing to do with these Supreme Court cases, or plea bargains).

I could argue — as I already did — that the system is so evil that accused persons and their attorneys everywhere should work to bring the system to a crashing, disastrous, halt.

I could write about what a huge “step forward” this is for the rights of accused people when it comes to plea bargains, and call it “the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”

But Adam Liptak already did that yesterday.

I could spin the report of the cases in such a way as to imply that the real evil is not plea bargains, but the Supreme Court suggesting people need to be protected from it.

Instead, I’m going to talk about what the cases actually say.

I know. I know. Really, I know. Some people say I shouldn’t bother with such “legal analysis” types of posts. [4]Although — I promise you — they aren’t really complicated cases, anyway, so there isn’t all that much “analysis” to do. No one wants to read them, I’m told.

Fine. Skip this one. Sometimes I write for me. And being forced to analyze and write about the cases will help me, even if you decide it’s “too long” or “too much” or even “too dry.” And who knows? Maybe another attorney will get something from it.

At any rate, I think this is important because, as Justice Kennedy noted in the Frye opinion,

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.

So, for starters, here’s what the two cases are about:

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 a second case decided today. [5]Missouri v. Frye slip opinion (March 21, 2012), p 1. The “second case” will be Lafler v. Cooper, discussed below.

It turns out the answers aren’t all that complex. Nor are they necessarily earth-shattering. In the end, I think the result is going to be something of a snooze, or, as my generation often says about stuff like this, “same-o, same-o.”

Ironically, there is a virtual 100% certainty that neither case will make a difference for the individuals involved, as you’ll understand when we get to the remedy in each case, and there is little likelihood they will make a significant difference in future cases, either.

Let’s dispense with Missouri v. Frye first, both because it’s easy and because, well, it was (technically) decided first.

The court basically holds that an attorney can be guilty of the sin of ineffective assistance of counsel (or, as it is lovingly known by criminal defense attorneys, “IAC”) in regards to plea agreements.

Justice Scalia disagrees, mostly because he’s a binary thinker. But in this case, I “kinda sorta” think (aaaughhh!) he’s right.

Well, okay, not so much on Frye. Maybe.

The problem in Frye is that the criminal defense attorney essentially abandoned his client. Frye was charged with the earth-shattering crime of driving with a  revoked license. Missouri apparently followed the rule of “if you didn’t get that this was a crime the first three times, we’re going to lock you up for an incredibly long time on the fourth try.” Kind of like “three strikes,” but you don’t suffer until the fourth swing of the bat. [6]That there could be a three-year prison sentence for doing this is just one of many things wrong with criminal laws in the United States.

At least, that appears to be the case here.

So the prosecutor offers Frye a deal, in writing. Instead of a “class D felony,” the prosecutor offers (ultimately) a misdemeanor with a recommendation for 90 days in jail, instead of 3 years in prison.

But Frye’s attorney never tells him about it.

Meanwhile, as that case progresses, Frye steps up to the plate again — his fifth time at bat.

Somewhere in there, he ends up pleading to the felony.

Long story short, the United States Supreme Court, with Justice Kennedy as both the swing vote and writer of the opinion, says the failure to communicate the offer to Frye when it was made constitutes ineffective assistance of counsel and, applying the normal rules for IAC, determines that Frye was prejudiced and is therefore entitled to a remedy.


Turns out, Missouri allows a prosecutor to withdraw a plea at any time — even after the accused accepts it — prior to the actual plea being taken in court. It also allows a judge to say, “Sorry. I’m not going along with this.”

And, remember, after the offer was made, but before it could have been accepted (if Frye had known about it),Frye stepped up for a fifth swing at bat.

So the United States Supreme Court says,

Yes, there was IAC here. Under normal circumstances, maybe Frye should get the original agreement. But he hasn’t proven that the prosecutor would not withdraw the plea, or that the court would go along with the plea, after his fifth turn at bat. Since we don’t know that the prosecutor or judge would have allowed the plea to go through, we don’t really know if he was prejudiced.

Ok. That wasn’t an actual quote from the case, but they might as well have said that. The upshot is that they remanded the case.

In Missouri, it appears “a plea offer once accepted by the defendant can be withdrawn without recourse” by the prosecution. [Citation.] The extent of the trial court’s discretion in Missouri to reject a plea agreement appears to be in some doubt.

If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license [while the other case was pending], there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the [later] hearing, unless they were required by state law to do so. [7]Missouri v. Frye slip opinion at 15 (March 21, 2012).

Ya think?

So the Court in Frye opened a can of worms, but Frye is unlikely to get one of them. In other words, Frye is still fried.

Justice Scalia’s dissent is both predictable and short. There being no constitutional right to a plea bargain, Frye was not prejudiced.

While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland [ouch] requires) is not. [8]Missouri v. Frye slip opinion (Scalia dissent) at 3.

At first glance, Scalia’s terse reply appears to amount to this: The constitutional right to counsel under the Sixth Amendment guarantees nothing more than a warm body. Well, okay: maybe a warm body with a law degree.

But not necessarily a caring bone in its body.

Scalia’s dissent in Frye ends by noting,

The plea-bargaining [ [9]You can’t fault a man who knows the proper use of hyphens! Can you? ] process is a subject worthy of regulation, since it is the means by which most criminal convictions are obtained. It happens not to be, however, a subject covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction. “The Constitution…is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.” [10]Missouri v. Frye slip opinion (Scalia dissent) at 5. I don’t get the whole “sledge v. tack hammer” thing here, but I assume Scalia somehow focusing on the sledge, rather than the tack hammer. If I read Scalia correctly, there is no hammer at all. It’s up to the legislature to fix this problem.

The real knee-slapper, though, is Lafler v. Cooper. [11]Get it? “Knee-slapper”? “Lafler?” … “Laugher”? No. I don’t apologize!

In Cooper, the offer was actually communicated.

By incompetent defense counsel.

The short facts are these: Cooper tried to shoot someone in the head. He missed. The target, one Kali Mundy, fled. Cooper gave chase, shooting the whole time. Mundy was hit several times, but lived.

Oh, and all the shots that hit her were below the waist.

So when the offer was communicated, Cooper’s obviously talented and seasoned attorney — somehow ignoring that the first shot, which missed, was aimed at the head — said,

You can’t be convicted for this. All the shots were below the waist. They can’t prove you intended to murder Mundy. [12]Yeah, yeah. Not a real quote, but — seriously — almost the actual quote.

Well, they did. Probably something about the fact that the first shot was aimed at the head, there was a chase, and Mundy caught at least three of the bullets during the chase.

To shortcut this explanation, there were multiple offers made and all were rejected because of defense counsel’s bizarre understanding of the law, the facts, and how they hooked up to not prove intent.

In the end — not to be confused with Mundy’s shot-infested buttock — everyone agreed that counsel made a boo-boo. To obtain relief, then, all Cooper had to do was…well, here’s what the court said:

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. [13]Lafler v. Cooper slip opinion at 5 (March 21, 2012).

In arriving at that rule, the Court basically decided that representation at critical stages is a Sixth Amendment requirement. This includes pretrial. This includes plea bargaining, because that usually happens pretrial. And “defendants cannot be presumed to make critical decisions without counsel’s advice.” [14]Id. at 6. And, oh, by the way, would someone please tell that to my clients?

The fact that a fair trial was later held — this, we will see, gives Scalia conniptions — does not cure the problem. [15]Id. at 7. This is because, the Court ultimately holds,

If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. [16]Id. at 9.

Moreover, the Court says,

The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining. [17]Id. at 11.

The Court thus rejects the idea that

A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. [18]Id.

Before I go on, let me be clear about something: As a defense attorney, I am not unhappy with these rulings. First of all, though I hate plea agreements (for all kinds of reasons), I want whatever is best for my clients. That’s what the law expects me to want and, because I think our system is fatally flawed (again, for all kinds of reasons), it’s what I actually want.

So to the extent that I can use these rulings to help my clients, I absolutely will.

But, if you want my frank and uncensored opinion, Justice Scalia’s dissents got it right.

In Cooper, Scalia notes the bizarre upshot of the Court’s opinion:

The Court…concludes that Cooper is entitled to some sort of habea corpus relief (perhaps) [ [19]That “perhaps” is, uh, perhaps the most bizarre aspect of this case ] because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial. [20]Lafler v. Cooper slip opinion (Scalia dissent) at 2 (March 21, 2012).

This, for Scalia, is where the problem comes in. To reverse the order of a couple of quotes in his dissenting opinion,

“[T]he right to effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” [ [21]Id. at 4, quoting United States v. Cronic, 466 U.S. 648, 658 (1984). ] [reversal here] [Cooper] is a vast departure from our past cases, protecting not just the constitutionally prescribed [ [22]Rats. I have to retract the praise for his knowing use of hyphens! ] right to a fair adjudication of guilt and punishment, but a judicially invented right to effective plea bargaining. [23]Lafler v. Cooper slip opinion (Scalia dissent) at 4 (March 21, 2012).

This, of course, is more than enough to blow Scalia’s mind. But I left something out of the story above, and Scalia is justifiably flabbergasted by that something:

Astoundingly, “the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence [Cooper] pursuant to the plea agreement, to vacate only some of the convictions and resentence [Cooper] accordingly, or to leave the convictions and sentence from trial undisturbed. [24]Id. at 10. (emphasis added by Scalia).

Yep. What I left out above was that the Court had remanded Cooper and indicated that the trial court could, among other things, decide — notwithstanding the U.S. Supreme Court’s holding of a constitutional violation — to do nothing about it. The sentence, which the Court had said Cooper suffered only because of a violation of his constitutional right to effective assistance of counsel when deciding to reject the plea agreement, could be left in place.

Scalia says — and I have to agree with him — this is extraordinary. 

The idea that the Supreme Court could hold that the remedy — or lack thereof — for a violation of, as they deem it, a constitutional right is left to the discretion of the trial court is so nutty that even Alito is able to sound intelligent:

If a defendant’s Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to give the defendant the benefit of the favorable deal. [25]Lafler v. Cooper slip opinion (Alito dissent) at 1 (March 21, 2012).

In the end, I find myself siding (not for the first time) with a man I detest. Scalia, in my opinion, is a thoroughly despicable human being. But in this case, he has the better argument. The defense attorneys in both these cases fucked up. The Supreme Court did not really fix anything. In the end, though the Court appears to side with the accused in both these cases, I don’t think either man will end up with a “remedy.”

And Scalia is right about something else. Constitutionally-speaking, there is no guaranteed right to a plea bargain. Nor is it going to be any easy task to know when a decision about a plea bargain was strategic and when it was the result of ineffective assistance of counsel. In the end, these decisions help no one. Plea bargaining remains what it always has been:

[E]vil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense…. [26]Lafler v. Cooper slip opinion (Scalia dissent) at 12 (March 21, 2012).

The only reason it survives is because

without it our long and expensive process of criminal trial [sic] could not sustain the burden imposed on it, and our system of criminal justice [sic] would grind to a halt. [27]Id.


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