Criminal defendants have a constitutional right to effective lawyers during
plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4
decisions that vastly expanded judges’ supervision of the criminal justice
The decisions mean that what used to be informal and unregulated deal making is
now subject to new constraints when bad legal advice leads defendants to reject
favorable plea offers.
“Criminal justice today is for the most part a system of pleas, not a system of
trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to
adequate assistance of counsel cannot be defined or enforced without taking
account of the central role plea bargaining takes in securing convictions and
Justice Kennedy, who more often joins the court’s conservative wing in
ideologically divided cases, was in this case in a coalition with the court’s
four more liberal members. That alignment has sometimes arisen in recent years
in cases that seemed to offend Justice Kennedy’s sense of fair play.
The consequences of the two decisions are hard to predict because, as Justice
Antonin Scalia said in a pair of dissents he summarized from the bench, “the
court leaves all of this to be worked out in further litigation, which you can
be sure there will be plenty of.”
Claims of ineffective assistance at trial are commonplace even though trials
take place under a judge’s watchful eye. Challenges to plea agreements based on
misconduct by defense lawyers will presumably be common as well, given how many
more convictions follow guilty pleas and the fluid nature of plea negotiations.
Justice Scalia wrote that expanding constitutional protections to that realm
“opens a whole new boutique of constitutional jurisprudence,” calling it
Scholars agreed about its significance.
“The Supreme Court’s decision in these 2 cases constitute the single greatest
revolution in the criminal justice process since Gideon v. Wainwright provided
indigents the right to counsel,” said Wesley M. Oliver, a law professor at
Widener University, referring to the landmark 1963 decision.
In the context of trials, the Supreme Court has long established that
defendants were entitled to new trials if they could show that incompetent work
by their lawyers probably affected the outcome. The Supreme Court has also
required lawyers to offer competent advice in urging defendants to give up
their right to a trial by accepting a guilty plea. Those cases hinged on the
right to a fair trial guaranteed by the Sixth Amendment.
The cases decided Wednesday answered a harder question: What is to be done in
cases in which a lawyer’s incompetence caused the client to reject a favorable
Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer,
Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of
do-overs in cases involving foregone pleas followed by convictions presented
all sorts of knotty problems. But he said the realities of American criminal
justice required to the court to take action.
Some 97 % 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,” Justice Kennedy wrote, “the negotiation
of a plea bargain, rather than the unfolding of a trial, is almost always the
critical point for a defendant.”
Quoting from law review articles, Justice Kennedy wrote that plea bargaining
“is not some adjunct to the criminal justice system; it is the criminal justice
system.” He added that “longer sentences exist on the books largely for
One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, 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 Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of
the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain,
and a judge sentenced him to 3 years.
A state appeals court reversed his conviction but said it did not have the
power to order the state to reduce the charges against him. That left Mr. Frye
roughly where he started, with the options of going to trial or pleading guilty
without the benefit of a plea deal.
Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove
that he would have accepted the original offer. But that was only the beginning
of what Mr. Frye would have to show to get relief. He would also have to
demonstrate, Justice Kennedy wrote, that prosecutors would not have later
withdrawn the offer had he accepted it, as they were allowed to do under state
law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the
court would have accepted the agreement.
There was reason for doubt that Mr. Frye could prove that prosecutors and the
court would have ended up going along with the original 90-day offer, as Mr.
Frye was again arrested for driving without a license before the original plea
agreement would have become final.
Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr. and
Justices Clarence Thomas and Samuel A. Alito Jr., called all of this “a process
of retrospective crystal-ball gazing posing as legal analysis.”
The 2nd case, Lafler v. Cooper, No. 10-209, concerned Anthony Cooper, 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, Mr. Cooper could not be convicted of assault with intent to murder.
Based on that advice, Mr. Cooper rejected a plea bargain that called for a
sentence of four to seven years. He was convicted, and is serving 15 to 30
Justice Kennedy rejected the argument that a fair trial was all Mr. Cooper was
“The favorable sentence that eluded the defendant in the criminal proceeding
appears to be the sentence he or others in his position would have received in
the ordinary course, absent the failings of counsel,” he wrote.
A federal judge in Mr. Cooper’s case tried to roll back the clock, requiring
officials to provide him with the initial deal or release him. Justice Kennedy
said the correct remedy was to require the plea deal to be re-offered and then
to allow the trial court to resentence Mr. Cooper as it sees fit if he accepts
Justice Scalia, here joined by Chief Justice Roberts and Justice Thomas, said
this was “a remedy unheard of in American jurisprudence.”
“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,” Justice
Scalia wrote. “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.”
Stephanos Bibas, a law professor at the University of Pennsylvania and an
authority on plea bargaining, 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
Justice Kennedy 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.
(source: New York Times)