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November 5, 2007
Supreme Court takes a case addressing ineffective assistance in plea bargaining
According to this post at SCOTUSblog, the Supreme Court has granted cert in a case concerning ineffective assistance of counsel in plea bargaining. (They also had a summary disposition in a capital habeas case, Allen v. Siebert, that split the court 7-2). Here is Lyle Denniston's account of the new case:
The Supreme Court agreed on Monday to spell out the remedy that may be available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial. The Court granted review of that question, which it spelled out in its order, in Arave v. Hoffman (07-110).
This is fascinating news and in future posts I hope to assess the potential impact of Hoffman. For now, I can suggest that this grant continues the Supreme Court's wonderful recent tendency to focus on important real-world criminal justice issues that have often previously escaped its attention.
It is interesting to speculate why the Justices are now, in my view, more regularly taking up more consequential and dynamic criminal justice issues. Perhaps it is the presence of two new justices, including one (Justice Alito) with a significant criminal justice background. Perhaps it is a recent lack of interesting civil cases to fill the Court's docket. Perhaps the Justices are finally fatigued with the death penalty and habeas cases that have clogged up the Court's criminal docket in recent Terms.
Whatever the explanation for the Supreme Court's apparent interest in more interesting criminal cases, I hope these trends will continue. (I also hope readers will suggest additional issues meriting SCOTUS attention.)
UPDATE: Thanks to SCOTUSblog, the cert petition from the state of Idaho in Hoffman can be found here. The petition reveals that this new case does concern death and habeas (and even Apprendi), though it does seem that interesting plea issues can and will remain at the center of the case.
November 5, 2007 at 10:15 AM | Permalink
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Comments
This is a 9th Circuit death penalty case from Idaho. The penalty was reversed for ineffective assistance of counsel. The other questions presented have not been posted yet. The court added the plea bargain remedy question.
Posted by: ward | Nov 5, 2007 10:33:18 AM
Logically, it seems that an argument that "I would have taken the deal had I had effective rep" should never win the day.
The Sixth Amendment right to effective counsel is there to protect the right to a fair trial. If the defendant receives a fair trial, then how can he complain? Moreover, we shouldn't be giving someone two bites at the apple. Reversing a conviction in such a circumstance would give the criminal all the benefits of the plea and all the benefits of a trial (i.e., possibility of acquittal).
Posted by: federalist | Nov 5, 2007 11:22:04 AM
While I have not read the briefs and know nothing about the case, I am pretty confident that federalist's analysis is wrong.
First, the 6A right to counsel is not merely an assurance of a fair trial. Effective representation is a right for all "critical stages" of the prosecution, which would include plea bargains. See Kirby v. IL. Even a textualist should be able to see that the 6A guarantees counsel "in all criminal prosecutions" and is not limited to merely the trial setting. See US Const. amend. VI.
Second, the question presented in the cert petition posits that it can be shown "but for" the ineffectiveness, the defendant would have plead. If such a fact is established, there is little worry about in regards to the "two bite" argument.
Posted by: DEJ | Nov 5, 2007 11:39:59 AM
Of course the defendant has the right to the effective assistance of counsel during plea negotiations, and that effectiveness includes knowing the ins and outs of the relevant sentencing laws. The problem is the "but for" test - it would be awfully hard for a defendant to show that he would have taken the deal had be gotten correct advise, but if he CAN show that, why shouldn't he get relief ("relief", of course, being a conviction and a life sentence).
Posted by: Anon | Nov 5, 2007 1:01:14 PM
I think that Anon's and DEJ's position has a fundamental flaw, namely the remedy. It cannot be forgotten that any remedy here would toss a judgment that was procured by way of a fair trial. The importance of this, I think, cannot be overstated. If the right to effective counsel is a means to an end (unlike the right to counsel of one's choice if paid for, see US v. Gonzalez-Lopez), then if the end is accomplished, where is the Constitutional injury?
Posted by: federalist | Nov 5, 2007 3:53:03 PM
Federalist, do you accept that the right to effective assistance of counsel includes the entire prosecution, and not just trial?
If you do not accept that, then you would be saying that even if an indigent defendant received advice that was patent nonsense, the defendant would have no recourse — as long as that advice did not occur during the trial itself.
If you accept that the right to effective assistance covers the entire prosecution, then what should be the remedy when there is a violation?
Posted by: Marc Shepherd | Nov 5, 2007 4:07:52 PM
Federalist, do you accept that the right to effective assistance of counsel includes the entire prosecution, and not just trial?
If you do not accept that, then you would be saying that even if an indigent defendant received advice that was patent nonsense, the defendant would have no recourse — as long as that advice did not occur during the trial itself.
If you accept that the right to effective assistance covers the entire prosecution, then what should be the remedy when there is a violation?
Posted by: Marc Shepherd | Nov 5, 2007 4:07:52 PM
The fact that the trial was "fair" is almost always irrelevant to whether a pre-trial constitutional violation has occurred. 4th amendment suppression appeals usually come from otherwise "fair" trials.
Posted by: Anon | Nov 5, 2007 4:56:54 PM
Anon, if evidence that should have been suppressed was used, then how was the trial "fair"?
Marc, here's a quote from Cronic:
"In our evaluation of that conclusion, we begin by recognizing that the right to the 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."
So, if the defendant did, in fact, receive a fair trial, then how can he possibly show that the harm he has suffered is within the scope of harm to be prevented? And if he cannot do that, where is his right to relief?
Sometimes, I think, it's helpful to go back to first principles. The Sixth Amendment right to counsel is being invoked to overturn a judgment procured by a fair trial simply because the defense attorney was incompetent in advising the client with respect to a proposed plea agreement. Would the Framers have intended that result? I think that a stretch.
Posted by: federalist | Nov 5, 2007 5:46:41 PM
"4th amendment suppression appeals usually come from otherwise 'fair' trials."
Yes, and habeas corpus relief is generally not available for Fourth Amendment claims. See Stone v. Powell, 428 U.S. 465 (1976).
Posted by: Kent Scheidegger | Nov 5, 2007 7:24:22 PM
"Anon, if evidence that should have been suppressed was used, then how was the trial "fair"?"
Federalist, if the trial only came about because of the ineffective assistance of counsel, then how was the trial "fair" no matter what happened?
Kent, 4th A claims can't be raised on habeas because the policies favoring the exclusionary rule don't apply in that forum (according to the Stone majority), not because there was no constitutional violation or because the violation doesn't deserve a remedy.
This is a question about whether the defendant has the right to the effective assistance of counsel before the trial. If he does, and he didn't get it, then he has to get a remedy. If he does not, then the remedy issue is irrelevant.
Posted by: Anon | Nov 5, 2007 8:05:31 PM
Anon, "Ubi jus, ubi remedium" is sloganeering and not argument.
With respect to your argument that the trial never would have happened, my response is "So what?". The right to effective assistance of counsel does not exist in a vacuum--it was created to protect the right to a fair trial. Where a fair trial has been achieved, then where is the cognizable prejudice? Remember, there is no inherent right to effective assistance of counsel. Where ineffective rep results in no prejudice, there is no remedy. As a result, it is never enough to state that there is a right to effective counsel. You have to look at the harm. Here, there is no question of harm, but, the harm is not of the species justifying the rule. See Cronic.
Posted by: federalist | Nov 5, 2007 8:21:49 PM
I represent many clients on post conviction relief and quite often I see outrageous examples of poor lawyering at the plea bargaining stage. And many times I have heard, "if I knew then what I know now I would not have turned the plea down and gone to trial." I believe that clearly a def is entitled to be represented by a lawyer who knows and explains what an Alford plea is or can figure correctly from the sentencing grid what maximum possible sentence the def is actually facing. Unfortunately that is not the case and defendants sometimes go to trial when they would not have if they had effective representation. I really don't understand federalist's position on this one. bruce
Posted by: | Nov 5, 2007 9:32:56 PM
Anon and DEJ~
I think it is important to note that this case is not arising on a direct appeal or even a state habeas proceeding but a federal habeas petition. Even if Effective Assistance of Counsel does extend to the plea bargaining phase, I don't think that was clearly established federal law at the time of Hoffman's state appeal.
Federalist~
A very minor quibble, his conviction will not be overturned if SCOTUS rules in his favor, only his sentence. Because of the way his claim is set up, his sentence would be LWOP rather than DP. I think Idaho should win for the reason mentioned above but I think that is an important distinction.
Posted by: da_2_b | Nov 5, 2007 11:00:02 PM
bruce, my position is very simple:
1) Right to effective counsel protects right to fair trial.
2) Here defendant got a fair trial.
3) Therefore, since the integrity of plea bargain process is not protected by right to effective counsel, there is no remedy.
This is not complicated. You may think me heartless or whatever, but my position is not unclear.
Posted by: federalist | Nov 6, 2007 12:36:23 AM
This has got to be a difficult issue, or it would never have reached the Supreme Court.
I think the case will be a vehicle for the Court to clarify just what level of competence it expects of counsel. It has stated that defense counsel does need to be minimally competent and does not need to be Clarence Darrow. Those boundaries allow plenty of room to conclude that Counsel either does, or does not, need to be aware whether or not a crucial precedent has a reasonable chance to be overturned.
Posted by: William Jockusch | Nov 6, 2007 3:50:16 AM
Real life example.
My client is charged with indecent liberties and the state offers two years active. He asks his lawyer if he turns it down can the State indict him for a greater offense. Lawyer says no, that would be prosecutorial vindictiveness, oblivious to Bordenkircher v Hayes, which allows the State to charge a greater offense following failed plea negotiations.
Client turns plea down, thinking the worst thing that could happen is a conviction of indecent liberties. State indicts for First Degree Sexual Offense. Client convicted and is serving 30 years without parole.
The Sixth Amendment secures a def's right to effective counsel during criminal prosecutions. Over 90 % of cases are resolved on pleas not jury trials. If the Sixth Amendment is to have any "intelligible content" , as Justice Scalia is fond of saying in the Apprendi context, the right to effective counsel has to encompass the right to have a lawyer give objectively reasonable advice upon which a def can decide whether or not to go to trial. It is not objectively reasonable for a lawyer to ignore Bordenkircher and advise a def that the State can't charge up after a plea offer is turned down.
bruce
Posted by: bruce cunningham | Nov 6, 2007 8:33:51 AM
William, I think the standard , between the two poles you pose, is the same as Strickland. Objectively reasonable legal representation. I see many examples of totally unreasonable representation, such as the lawyer not being able to read the sentencing grid correctly. That's basic stuff. bruce
Posted by: bruce cunningham | Nov 6, 2007 8:38:26 AM
William, the Supreme Court raised the issue. It's not really all that difficult. The question is whether the law will be twisted to give criminals a break.
Posted by: federalist | Nov 6, 2007 9:50:17 AM
So if a lawyer negligently fails to file a dispositive pretrial motion to bar a second trial on jeopardy grounds, there is no prejudice so long as the defendant was convicted in a fair trial that never should have happened? Same thing with failing to file a motion to dismiss on speedy trial grounds? Courts of appeals have interpreted Strickland's "different outcome" phrase to require remedy in those circumstances.
Posted by: Da Man | Nov 6, 2007 11:50:53 AM
Federalist: "Where a fair trial has been achieved, then where is the cognizable prejudice?"
The prejudice lies in the outcome. If the trial resulted in a life sentence, then I agree there would be no prejudice from the lawyer screwing up pre-trial. But if the fair trial results in an enhanced penalty, where but for the screw-up the penalty would have been less, then the prejudice is the penalty enhancement. The ineffective assistance caused the penalty enhancement, and the defendant is entitled to relief.
"Remember, there is no inherent right to effective assistance of counsel."
There is one embedded into the Sixth Amendment, however, and it applies to all critical stages of the entire criminal prosecution, not just the trial. If IAOC claims could only be made where a trial was somehow unfair, then they could never be made where the defendant pleads guilty, which isn't true. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Posted by: Anon | Nov 6, 2007 12:27:35 PM
Da man, that's not a good analogy. If, for whatever reason, the DJ defense was required to be brought before trial, then for IAC purposes, the pretrial stuff would be part of "trial" or "criminal prosecution".
Plea bargaining is quite a different animal.
Posted by: federalist | Nov 6, 2007 12:28:12 PM
The IAC with respect to an actual plea is interesting. The issue there, of course, is that there is a criminal judgment procured by way of the plea.
Posted by: federalist | Nov 6, 2007 12:34:28 PM
Does anyone know what was contained in the defendant's direct appeal? Did he challenge his guilt/the sufficiency of the evidence? It seems like if he proclaimed his innocence throughout his direct appeals process, it may make it difficult for him to assert that he would have pled guilty with a better attorney...
Posted by: JustClerk | Nov 6, 2007 12:46:59 PM
But federalist, the actual plea process could be (and usually is) fair. The defendant waives his rights, enters a plea, and receives a sentence. The 6th A, however, recognizes that if that plea/judgment was procured via IAC, then it's void because there must be a remedy for a constitutional violation. In fact, the most common area of IAC in plea cases that I know of is misadvising the defendant as to the sentencing consequences of the plea. See US v. Glover. Same violation here.
The same is true here. Here, the defendant was misadvised of the sentencing consequences of going to trial and getting convicted. If that's IAC, and it sure sounds like it is, then the result shouldn't be any different.
Posted by: Anon | Nov 6, 2007 5:01:08 PM
