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October 31, 2011

"Court reluctant on plea bargains after sentencing"

The title of this post is the headline of this AP report on the oral arguments today in the big Sixth Amendment cases of Lafler v. Cooper and Missouri v. Frye (previewed here).  Here are snippets from the AP account:

The Supreme Court seemed reluctant Monday to allow criminals to ask for a previously offered plea bargain after they've been sentenced, despite the inmates' claim of misconduct by their lawyers including neglecting to tell their clients that a deal had been offered.

Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart "is simply unworkable," said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues....

In both cases, the criminals' lawyers are not arguing for new trials, a position the court seemed to agree with. "The remedy of giving a new trial when the person has already had a fair trial makes zero sense," Justice Samuel Alito said.

But Cooper's lawyer, Valerie Newman, said they should have a chance to go back and consider the plea offer. "I'm saying it's unfair to go to trial when your attorney tells you, 'You can't be convicted.'"

"You are saying it's unfair to have a fair trial; isn't that correct?" Kennedy said.

Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it's easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.

But the negotiations are going on before trial, and by "not accepting it he has a chance of going scot-free" if a jury finds him not guilty, Chief Justice John Roberts said. After conviction and sentencing, Roberts said, "presumably the defendant will always say, 'I would have taken that deal, because it's better.' So how is a judge supposed to go back and decide whether that's true or not" on appeal?"

Everyone can now read the full transcript in both these cases via this links provided by SCOTUSblog: the transcripts from today’s arguments in Lafler v. Cooper and Missouri v. Frye can be found here and here.

October 31, 2011 at 04:46 PM | Permalink

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Comments

They should be reluctant. The bottom line is that the right to effective rep is there to guarantee the right to a fair trial--so where's the problem if you get a fair trial? The answer is laughably bad--that there's somehow this right to some sort of overall fairness because 95% of criminal convictions are gotten thru pleas?

I see Kagan seems to have swallowed that one. Oh well, what does one expect of a moral pygmy who punishes those who follow the rules (i.e., military recruiters and DADT) but who absolves those who made them (i.e. Congress). Anyone that dumb (i.e., blaming the wrong people) probably can't figure out this nuance. Oh, and if you think I am wrong for calling her dumb because she punished military recruiters, then you have to accept that she's disloyal. Either way, this creature has no business being on SCOTUS.

Posted by: federalist | Oct 31, 2011 5:23:39 PM

i would agree to federalist IF it was a fair trial. But the devil is in the details. if the defense attorney was so ineffective to not even have BRAINS enough to relay a plea offer.....what are the real odds he/she had enough brains to manage to come even close to a fair trial.

of course the remedy is also easy enough at least going forward. require any plea agreement that is delivered by ackowledged in writing by the defendent i'm actulay AMAZED that's not done now!

Posted by: rodsmith | Oct 31, 2011 6:35:41 PM

as for the present cases...guess they need to get busy with those ineffective counsel motions!

Posted by: rodsmith | Oct 31, 2011 6:36:38 PM

I do think, however, this might be a reasonable place to part from the general idea that all of the negative consequences a convict experiences flow from the criminal act and thus the attorney can have no personal liability toward the factually guilty client. Failing to even advise that an offer had been made should put the attorney on the hook for the difference in years, whatever that is worth (and I would say that state compensation schemes toward the exonerated provide a useful baseline for that). You didn't tell your client about an offer for 5 years and he plead or went to trial and got 20? You as an attorney are now liable for the 15 years times whatever the state yearly compensation amount is.

This should be a matter between the lawyer and the convict, with the prosecution not involved at all.

Posted by: Soronel Haetir | Oct 31, 2011 6:37:57 PM

The scope of the right to effective assistance is of course not so limited as federalist claims. It extends well beyond just assistance at trial.

Posted by: federalist is a mental pygmy | Oct 31, 2011 6:46:10 PM

What's the word I'm looking for> Ah yes! TOUGH!

Posted by: jason @ security door chains | Oct 31, 2011 7:43:13 PM

Federalist, you call Kagan "that dumb". Tell me something:

Did you graduate from Princeton summa cum laude? She did.
Did you receive Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university? She did. Did you study at Oxford and earn a Masters of Philosophy degree there? She did. Did you graduate from Harvard Law School magna cum laude? She did. Were you a law clerk for a judge on the D.C Court of Appeals? She was. Were you ever an associate at the Washington, D.C., law firm of Williams & Connolly? She was. Were you ever a tenured professor at the University of Chicago Law School? She was. Were you ever nominated to be a judge on the D.C Circuit Court of Appeals? She was. Were you evera full professor at the Harvard Law School? She was. Were you ever the Dean of the Harvard Law School? She was. Were you ever Solicitor General of the United States? She was. Were you ever a Justice of the Supreme Court? She is.

We should all be "that dumb."



Posted by: anon1 | Oct 31, 2011 8:28:41 PM

anon1 left out one:

Federalist, were you ever the supervising editor of the Harvard Law Review? She was.

I join in anon1's final observation: If only were all "that dumb."

Posted by: anon2 | Oct 31, 2011 8:36:39 PM

Having read the the argument in Lafler v. Cooper in it's entirety, what struck me was how untethered to the law the Justices seemed to be in their questioning. Unfair, unworkable were discussed but nothing (or at least virtually nothing) of the actual Sixth Amendment and little of the Court's own precedent.

Just an observation.

Posted by: David | Oct 31, 2011 8:38:48 PM

David --

"Just an observation."

But an astute one. I drafted Supreme Court briefs here and there, and quite a few briefs in the circuit courts. I always liked the latter better, because the circuits almost always at least attempt to decide cases based on actual law, whereas in the Supreme Court, you're often in no man's land.

In the Supreme Court argument in Dickerson, Justice Breyer asked my friend Paul Cassell, who was arguing the case, "But haven't millions of people heard the Miranda warnings on TV?" I did manage to restrain myself from jumping up and yelling, "Is that supposed to be a legal question?"

But that's how it is in the SCOTUS. Some people consider this one of its strengths. I am not among them.

Posted by: Bill Otis | Oct 31, 2011 8:58:49 PM

David, I agree with you 100%.

As for those who want to read me Kagan's resume, well, how do you explain her decision to take out her dislike of DADT on military recruiters, i.e., people who had nothing to do with a law Congress passed, and a law, by the by, which the military had no choice but to follow? Was that stupidity? Or disloyalty. You can recite her resume all you want--mine's pretty good too, Editor-in-chief, summa cum laude at my school and, you know, 10 years at two of the finest law firms in America. In any event, the issue to me isn't her resume, but her work product. Her questioning showed either a fundamental dishonesty or rank stupidity. Certainly someone with Kagan's presumed erudition had to have actually read the case law which pretty clearly states that the right to effective assistance of counsel is there to product the accused's right to a fair trial. Thus, as a matter of pure logic, it's difficult to see how someone can argue that the result of a fair trial can be overturned for ineffective rep. Now I get that there are exceptions to that idea, e.g., conflicted counsel, but those exceptions have nothing to do with the issue at hand. At the very least Kagan could acknowledge that her view is expanding the right--but she doesn't. Here's one example: "And to the extent that we have an effective assistance right that means something, that unfairness needs to be addressed by it, doesn't it?" Either that's stupidity or intellectual dishonesty. Which is it guys? The right to effective assistance of counsel has NOTHING to do with cross-criminal cosmic fairness, and the idea that it doesn't deal with this particular problem in NO WAY means that it means nothing. Honestly, I'd expect more from some bored prof sitting on a moot court bench.

You can point to her resume all you want, but her resume doesn't polish that BS. So which is it, geniuses, intellectual dishonesty or stupidity? Or do you prefer to be in awe of an empty suit? And while youre at it, can you justify her treatment of military recruiters?

Between her and the "wise Latina," Obama can sure pick winners.

Posted by: federalist | Oct 31, 2011 9:10:44 PM

I'm somewhat baffled by the opposition to the defendant's position here. Is the idea that the Sixth Amendment is wholly irrelevant to plea bargaining? Or that it becomes irrelevant once you go to trial? I'm not trying to be snarky. I just genuinely don't understand the opposition.

I once worked on a habeas case where the trial lawyer lied to his client about his sentencing exposure. The client later went to trial and got more time because he had (incorrectly) understood that he faced no extra time by going to trial. Is that fact pattern materially different? Would it matter if the trial attorney made a really dumb mistake in advising the client about his sentencing exposure rather than (what appeared to happen in the case I worked on) the lawyer intentionally lied to the client?

And to the extent that the opposition is grounded in some weird originalist theory of the Sixth Amendment -- given that plea bargaining wasn't even possible at the founding, is the "solution" to cases like this to return to the founding era criminal practice of no plea bargains?

Posted by: Confused | Oct 31, 2011 9:40:40 PM

Sorry -- I should have added: in the case I worked on, the client was going to get a charge bargain, capping his sentencing exposure. But the attorney lied to his client about his exposure should he go to trial. The client ultimately went to trial, thinking he had nothing to lose. He did.

Posted by: Confused | Oct 31, 2011 9:42:15 PM

The answer to your question, confused, is that the attachment of the right to counsel doesn't mean that ineffective rep is necessarily going to get the defendant anything. There are three distinct issues--(a) was it really ineffective rep, (b) would effective rep had made a difference in whether the defendant actually would have been tried and (c) whether the harm, i.e., the longer sentence, is of constitutional dimension.

Try asking yourself these questions: (1) What does the right to effective assistance of counsel protect? (Ans. the right to a fair trial.)

(2) If a defendant gets a fair trial, can he be heard to complain about getting that fair trial? (Ans. not under current precedent.)

Posted by: federalist | Oct 31, 2011 9:46:55 PM

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

I don't read the Sixth Amendment as applying only to jury trials. The right to effective assistance of counsel appears to protect the defendant's interest in having effective assistance of counsel for his defense. Because most criminal cases result in plea bargains, it is unrealistic to suppose that a defendant's right to counsel exists solely to ensure a fair jury trial. Surely a defendant's "defence" includes sentencing, which is usually the most important aspect of the case to the prosecution, the court, and the defendant. The Supreme Court's recent Padilla decision imposed upon lawyers a duty to advise defendants of certain collateral consequences of a guilty plea. Reasonable minds could certainly disagree with Padilla, but it is now precedent, and given Padilla, it follows that a lawyer should also inform the client about matters that are direct consequences of a decision whether to plead or go to trial.

I disagree with Justice Kennedy about the "unknowables" that he thinks the case raises. These types of questions come up all the time in court. It's disingenuous to say that we can't ever guess what would have happened if the defendant received effective assistance from his lawyer--in fact, current law requires defendants claiming ineffective assistance to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Posted by: C.E. | Nov 1, 2011 12:18:48 AM

federalist, why do you insist the right to effective assistance of counsel concerns only counsel's performance at trial?
Are you saying that if an incompetent lawyer advised a client to accept a plea bargain to Charge A and tells client he will do 3 years. But in fact, unbeknownst to the lawyer, the charge carries a mandatory mninimum of 20 years which the court imposes. Are you saying tough luck for the defendant?

Posted by: anon3 | Nov 1, 2011 12:34:42 AM

"and to be informed of the nature and cause of the accusation;"

Why wouldn't this include not only the language of the charges but also the potential penalties if a plea bargain varies those potential penalties, and why wouldn't that be a constitutional issue if the "informed" information is false? Doesn't a knowing and intelligent plea presume an informed plea?

Since a plea bargain is a contract, why didn't I didn't see any contract law argument in the arguments? What if a lawyer falsely advises on the conditions of a civil contract?

Posted by: George | Nov 1, 2011 12:46:19 AM

Both George and Soronel are onto something.

A defendant does indeed, in my view, have the right to effective assistance at the plea bargaining stage. The question is: Who pays the price if he doesn't get it, and the matter comes up only after the public has paid the bill for a trial whose outcome is perfectly legal?

Trials are the method designated by the text of the Constitution for the resolution of criminal charges. Once the defendant gets such a resolution, has has received the principal item guaranteed him. A person who gets a legal sentence after a fair and proper trial simply has no claim ENFORCEABLE AGAINST THE GOVERNMENT. As George correctly notes, it's unheard of in any other context to punish one party for the fact that the opposing party got bad advice from his own lawyer about how to negotiate.

This is what differentiates this dispute from what happens when a defendant gets ineffective assistance at trial: When there's a realistic prospect that the government got a victory in that setting it otherwise would not have achieved but for defense counsel's incompetence, then it stands in the position of a windfall beneficiary, and it is not unfair (or at least not grossly unfair) to make the government do it again. But when the government gets its trial victory fair and square, to nullify that victory because the defense lawyer erred in advising his client -- in conversations from which the government was excluded, and which were undertaken before the trial even started -- seems extremely unfair to the public. Indeed it seems downright bizarre, and has an uneasy feel of self-dealing.

The best remedy is, I think, the one Soronel suggests. Since the pre-trial defense lawyer was the problem, he's the one who should get stuck. The answer is that he should be disbarred. This will not help out the immediate defendant, but it will provide such a stiff dose of deterrence that, over the long haul, the quality of defense counsel will improve, and fewer such bargaining snafus will be committed.

This is an instance where one party or the other is going to have to live with some unfairness. For the reasons I have outlined, in the trial setting, the balance of interests, all things considered, tips against the government. Where the defect is in defendant/defense counsel stategizing conversations, however, the balance tips the other way.

Posted by: Bill Otis | Nov 1, 2011 5:48:47 AM

E

Posted by: .?? | Nov 1, 2011 6:54:17 AM

A defendant is entitled to the effective assistance of counsel at all critical stages. Plea and sentence bargaining is a critical stage. Contrary to Mr. Otis' view, the Supreme Court has held that when there is a deprivation of effective assistance, the state bears the burden of the error.

Approximately 97% of criminal cases are resolved by plea, many of the defendants are indigent, and the states chronically underfund defense systems. In Detroit, for example, where Lafler v Cooper originated, the court's fee schedule for appointed counsel is on par with or lower than it was in the 1960's.

If a defendant receives constitutionally ineffective advice and enters a guilty plea, the plea can be set aside. Hill v. Lockhart. All the circuits and 48 states have applied Hill in reverse for decades without great difficulty, and only a very small number of cases have resulted in reversals. (In 37 years, I have raised the issue 5 times, all successfully).

The difficult issue is the logic of the remedy. Normally a constitutional violation results in vacating the judgment. But the logical remedy here, specific performance, should mean either the defendant accepts the reinstated offer (if he can establish the Hill criteria), and if he declines the offer or cannot meet his burden, the trial conviction and sentence remain in place. I think remedy is the tougher question.

Posted by: John Minock | Nov 1, 2011 8:26:29 AM

anon3, I think you can read all my comments and not find a single one that says that the right to counsel only applies at trial. What I am saying is that when you get a fair trial, which is what the right to effective counsel is there to guarantee, you cannot complain. Ineffective rep that leads to guilty pleas are a wholly different animal because the guilty plea stands in the place of a fair trial and results in a criminal judgment.

Ultimately, it seems that no one can answer the obvious question---how can there be a violation of a right that is there to give a defendant a fair trial when he gets a fair trial? I'm fine if people want to admit that they want to change the law, but realize that this is a change in the law.

Posted by: federalist | Nov 1, 2011 9:08:11 AM

yea federalist and bill but like i said my problem is once a lawyer has proved so incompetnet to even forward a plea offer...how can anyone with a straight face say the follow up trial was even close to fair.

would a trial be fair if you had the ultimate lawyer prosecuting and a 6 year old defending? NO!

this is maybe the same situation.

and of course once the trial is UNFAIR it's a wash!

of course i'd also expect a retrial to be bared.....since for one thing the DA should have said something.

Posted by: rodsmith | Nov 1, 2011 10:36:59 AM

unfair, as in life is unfair, is not a synonym for unconstitutional . . . .

Posted by: federalist | Nov 1, 2011 11:24:05 AM

A rare instance where Alabama is ahead of the curve. I have never been involved in a serious felony trial where the judge does not ask the state on the record what the offer is before the first witness is sworn. She will then ask the defendant whether he understands the offer and rejects it. Then we bring in the jury and have opening statements. Sometimes the state says that there is no offer or that one was extended but the time for it has expired, but most of the time they will re-state it on the record and get the rejection for the record as well. Note that it is often defense counsel who reminds the court to do this, but the court is also interested in avoiding the inevitable IAC claim if things don't go well for the D.

Posted by: Ala JD | Nov 1, 2011 12:12:43 PM

Ala JD --

Sounds like a good plan. Thanks for letting us in on it.

Posted by: Bill Otis | Nov 1, 2011 12:22:52 PM

Question: "How can there be a violation of a right that is there to give a defendant a fair trial when he gets a fair trial?" Answer: The right is there to give a defendant more than a fair trial. It is there to give him effective assistance for his Defense. See Strickland (right to effective assistance applies at sentencing); Padilla (right to effective assistance applies to plea stage).

federalist: You are living proof of a theory you espouse - that a fancy resume does not guarantee that one is very bright.

Posted by: federalist is a mental pygmy | Nov 1, 2011 12:37:38 PM

It's weird to me to hear the criticism that the Court isn't staying in touch with the language of the Sixth Amendment. The right to the appointment of counsel at public expense isn't part of the constitutional text, and I don't think it was recognized at the time the Sixth Amendment was adopted. Moreover, the idea that even when the defendant **has** had "the assistance of counsel for his defense," the defendant can void the outcome of the trial because the **quality** of the "assistance" was inadequate ("ineffective") and is considered the fault of the state (whether counsel wsa appointed by the state or privately retained) also isn't present in the text of the Sixth Amendment and wasn't recognized at the time the amendment was adopted.

The point isn't that Gideon and Strickland should be overruled; it's just to observe that the argument of whether there is a remedy for an alleged violation of right to "effective assistance of counsel" at the plea-bargaining stage -- even following a trial at which the defendant hasn't identified any constitutional error -- doesn't really have its basis in the text of the Amendment or history . . . unless the only history we're interested in is the 1960s and 1970s and the notion that anything that led to an arguably inequitable outcome is likely a due-process or equal-protection-type constitutional violation for which the state is responsible and for which there must be a remedy.

Posted by: guest | Nov 1, 2011 12:56:38 PM

Anon 1: The utter slime thrown by the pro-prosecution crowd on this blog no longer surprises me.

Posted by: reader | Nov 1, 2011 12:59:22 PM

"I disagree with Justice Kennedy about the 'unknowables' that he thinks the case raises. These types of questions come up all the time in court. It's disingenuous to say that we can't ever guess what would have happened if the defendant received effective assistance from his lawyer--in fact, current law requires defendants claiming ineffective assistance to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

This isn't intended to be snark, but what happens when the defendant comes back after trial -- knowing how the trial ended and knowing how he was ultimately sentenced -- and says "yes, I would have taken the plea deal for less time?" Let's assume we're not supposed to think about that part of the initial plea offer reflected a discount for acceptance of responsibility and sparing the prosecution the expense of trial and that the reasons for that discount no longer exist when the defendant tries to void the plea agreement.

Is the judge just supposed to listen to the defendant say his or her piece under oath and then make a credibility determination based on whether the judge buys the defendant's explanation? Should the judge be allowed to consider whether the defendant has gone to trial (or accepted similar plea deals) in the past? Should the judge be allowed to consider, in assessing what the defendant likely would have done, that people who commit certain kinds of offenses (e.g., bank robbery) probably tend not to be risk-averse or risk-neutral?

Posted by: guest | Nov 1, 2011 1:06:46 PM

Argh. Mr. Mental Pygmy, the right can attach whenever, the issue is what it protects. And as for sentencing, to the extent that's subject to adversarial proceedings, it's clearly picked up.

I'll leave you with the money quote from Cronic, one which none of you can seem to deal with:

"Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."

The trial was a fair one. And that's the raison d'etre of this judge-made ineffective rep right. How then is there a constitutional violation?

Saying that the right to counsel attaches to the plea bargaining process doesn't come close to addressing this issue.

Posted by: federalist | Nov 1, 2011 1:21:00 PM

Oh, and it is funny that none of the Kagan defenders have taken my question about her treatment of military recruiters.

Posted by: federalist | Nov 1, 2011 1:24:04 PM

reader --

"The utter slime thrown by the pro-prosecution crowd on this blog no longer surprises me."

Has any of the pro-prosecution crowd on this blog called another commenter a child molestor or a necrophiliac?

Yes or no.

Has any of the pro-defense crowd on this blog called another commenter a child molestor or a necrophiliac?

Yes or no.

Posted by: Bill Otis | Nov 1, 2011 1:56:40 PM

John Minock --

"Contrary to Mr. Otis' view, the Supreme Court has held that when there is a deprivation of effective assistance, the state bears the burden of the error."

When Party A scews up its own strategy in a way for which Party B is not at fault and didn't even know about, where's the justice in making Party B bear the burden?

Posted by: Bill Otis | Nov 1, 2011 2:05:33 PM

guest --

Insightful questions, as usual. And no answers, also as usual.

Posted by: Bill Otis | Nov 1, 2011 2:09:56 PM

John Minock, doesn't that cut both ways? If the state is held responsible for something which it is not responsible for, then that's an argument to limit the scope of the rule. Strickland was enacted (a joke guys) to deal with the problem of convictions caused by simply awful defense (either by way of a trial or a guilty plea). Thus, where the defendant gets a fair trial, it seems that the policy reason of Strickland, i.e., to prevent shoddy convictions, is simply not present. Kagan actually gets this--this is why she is arguing that there's somehow this right to fairness across defendants.

Posted by: federalist | Nov 1, 2011 2:42:46 PM

Cronic doesn't apply here, federalist. The issue in Cronic was whether there was ineffective assistance at trial. The issue in Lafler, etc. is whether there was ineffective assistance at the plea stage. The right that is being protected at the plea stage is the right to effective assistance in plea negotiations, not the right to a fair trial. Identifying the stage of the proceedings being assessed (here the plea stage) identifies the right being protected.

It's really not that hard.

Posted by: federalist is a mental pygmy | Nov 1, 2011 2:59:11 PM

O.K., Bill, you're right. Calling a Supreme Court justice a "creature" is not as bad as suggesting that a commenter on a blog might be a child molestor or a necrophiliac. The other commenter should have just called you a creature (or a mental pygmy).

Posted by: reader | Nov 1, 2011 3:04:08 PM

In the Frye case, it was interesting to read Justice Scalia's admission that he might not understand the difference between an open plea and a plea agreement. I also agree with many of the comments that the arguments seemed untethered from the Strickland case law.

Posted by: Hola | Nov 1, 2011 3:07:44 PM

"It's really not that hard."

Only because your formulation assumes the hard problem away.

Moreover, I thought the question wasn't whether there is a "right to effective assistance of counsel in plea negotiations," but whether violations of the right can be redressed by allowing the defendant to void (a) a conviction following a trial at which the defendant hasn't identified any constitutional error; or (b) a subsequent guilty plea, given that the prosecutor was under no constitutional obligation to hold the earlier plea agreement open and in place.

One of the reasons the question is hard is because the Supreme Court has held that a plea offer has "no constitutional significance" until the judge approves it and enters judgment, even if the defendant has tried to accept. Typically, the only time that the prosecution can be ordered to provide specific performance is if the defendant has performed specifically (such as by testifying against coconspirators) and letting the defendant withdraw the guilty plea isn't good enough to put the defendant back in the same position.

That's the reason why Justice Ginsburg asked something along the lines of: "if the prosecutor can't be ordered to re-institute a plea offer that he's decided unilaterally to revoke, even without any good reason, how does a claim of ineffective assistance of counsel give the court the power to force the prosecutor to re-institute a plea offer that the court couldn't otherwise lawfully order the prosecutor to re-institute?"

I appreciate the argument that finding no redressable right in these circumstances may lead to inequitable results, and I appreciate that the prospect of disciplinary proceedings for counsel will be of small comfort to a defendant who might have gotten a better plea deal (had the prosecutor kept it open and had the judge accepted it). But I don't understand how you don't find it to be a hard question unless you're either not understanding it or as part of your argument are simply pretending it doesn't exist or doesn't matter.

Posted by: guest | Nov 1, 2011 3:19:09 PM

Pygmy, call the statement in Cronic dictum--that's fine, but there's nothing to suggest it's not an accurate statement of the law. There's no question that the right to effective assistance of counsel is there to ensure a fair trial (or a substitute, i.e., guilty plea). So the question is when a criminal gets that, can he complain? You want to expand things, that's fine, but at least admit that it's an expansion.

AEDPA is a real problem for the criminal in Lafler, by the way.

Posted by: federalist | Nov 1, 2011 3:24:09 PM

I don't retract my comment about Kagan being a creature. When someone can explain how her treatment of military recruiters was morally justified, then I'll reconsider.

Posted by: federalist | Nov 1, 2011 3:25:27 PM

@hola: "I also agree with many of the comments that the arguments seemed untethered from the Strickland case law."

Without wanting to suggest that I'm eager to throw overboard any precedent whose textual and historical grounding is questionable (I'm not), it's worth noting again that the "Strickland case law" is judicial gloss on the Sixth Amendment -- albeit gloss that's binding on all other courts in the country -- rather than the Sixth Amendment itself. When the Court tethers itself only to its prior case law, without stopping to consider the text and original law it's construing, you will start to find decisions that are "tethered" only to one another, but that start drifting further and further away from the actual constitutional provision it's supposedly interpreting and the purposes for which that provision was adopted.

Posted by: guest | Nov 1, 2011 3:26:21 PM

reader --

"Creature" and "mental pygmy" are tame stuff compared to what gets tossed at the conservatives on this blog. Yesterday was a new low, wouldn't you say? And before that, Kent got called a Nazi BECAUSE OF HOW HE LOOKS (or course he looks perfectly normal). Are you proud of this kind of thing? Is there some need for it? Do adults act this way?

If you think I'm a mental pygmy, fine, have at it. The Dean might believe otherwise, and the judges of the Fourth Circuit, and various Solicitors General, maybe a Justice here and there, but I'm sure you know better.

I mean you do know better, right?

Posted by: Bill Otis | Nov 1, 2011 3:27:04 PM

"The right that is being protected at the plea stage is the right to effective assistance in plea negotiations, not the right to a fair trial. Identifying the stage of the proceedings being assessed (here the plea stage) identifies the right being protected."

The ultimate problem with this statement is that it simply does not deal with what the right is designed to do. No one disputes that there is a right to effective assistance during plea negotiations. But that right only extends so far as to protect the defendant from getting an untainted conviction. There is simply no support in the text of the Sixth Amendment, nor Strickland and its Supreme Court progeny, for the idea that the result of a fair trial can be attacked because of the advice leading up to that trial. This is why you have Kagan groping around for some idea of cosmic fairness and how a criminal is somehow singled out when he gets screwed by lousy counsel. That not the stuff of logic; it's the stuff of sympathy. The right to effective assistance is to protect the right to a fair trial, and when someone gets a fair trial, it seems a stretch to argue that there should be a remedy. Now, if you want to argue that there should be a stretch, fine. But that means that Cooper loses--AEDPA.

Posted by: federalist | Nov 1, 2011 4:09:44 PM

Guest,

"Gloss" is a word that is overused and often misused by attorneys. In some contexts, gloss is a synonym for interpret, which is what the Strickland Court did in reference to the Sixth Amednment and the right to the effective assistance of counsel. I am perplexed by your position: you argue that Strickland and its progeny do not reflect accurately the Sixth Amendment and (perhaps) were wrongly decided, yet you are equivocal about throwing them overboard.

Posted by: Hola | Nov 1, 2011 4:23:30 PM

@ Hola:

No, I'm just trying (maybe not too skillfully) to point out that some critics' argument that declining to find a redressable remedy in these circumstances is inconsistent with the right guaranteed by the Sixth Amendment should recognize that their argument doesn't follow obviously from the language of the Sixth Amendment, isn't consistent with the historical practice when the Sixth Amendment was adopted, isn't compelled by prior precedent (indeed, I think the Supreme Court's precedent generally cuts the other way), and shouldn't be surprised if the Supreme Court ultimately says "this is a bridge too far; a conviction following a trial that isn't alleged to have been contaminated by counstitutional error at trial can't be considered an 'injury' for constitutional purposes" or "defense counsel's alleged failure to convey the terms of a plea offer, although unprofessional and possibly grounds for discipline, does not amount to constitutional prejudice given that the plea offer had no constitutional significance unless and until the trial court accepted it."

My point wasn't that I question Strickland; it's that I question that Strickland provides the answer and do not think that "the remedy has to be that the defendant gets to go back in time, before the time of counsel's allegedly deficient performance" makes sense in these circumstances. That's all.

Posted by: guest | Nov 1, 2011 4:45:04 PM

Mr. Bill said "Trials are the method designated by the text of the Constitution for the resolution of criminal charges. Once the defendant gets such a resolution, has has received the principal item guaranteed him. A person who gets a legal sentence after a fair and proper trial simply has no claim ENFORCEABLE AGAINST THE GOVERNMENT. As George correctly notes, it's unheard of in any other context to punish one party for the fact that the opposing party got bad advice from his own lawyer about how to negotiate."

Nice try, but that's not what I said. The Bill of Rights is written into any plea bargain contract (but not a civil contract) and that would include the right "to be informed of the nature and cause of the accusation." Part of the nature of the accusation is the potential sentence in the plea bargaining context. When the potential sentence information is false, the defendant cannot be informed and that is a violation of the 6th. This is why the focus on trials is misplaced.

The justices agreed there was IAC and agreed there was harm. The only question was the remedy and that boiled down to having to prove the desire to accept the plea if not for bad advice. Once proven, the remedy would be enforcement of the OFFERED plea. The government would not be subject to anything it did no want previously and so that would be the lesser of harms.

Posted by: George | Nov 1, 2011 4:52:02 PM

"Part of the nature of the accusation is the potential sentence in the plea bargaining context."

? I'm not sure I follow or agree. I agree that a defendant must be informed of what conduct he or she is accused of having committed; what law or laws he or she is being charged with violating; and, before pleading guilty, maximum sentencing exposure and any mandatory minimum sentence. What is the basis/support for the assertion in quotation marks above?

Posted by: guest | Nov 1, 2011 5:07:35 PM

"When the potential sentence information is false, the defendant cannot be informed and that is a violation of the 6th."

Suppose Prosecutor extends a plea offer to Defense Counsel and that before Defense Counsel conveys it to Defendant, Prosecutor rescinds it -- he says he's made a mistake. Prosecutor then offers a new plea agreement, for a longer sentence, which Defense Counsel conveys to Defendant and that Defendant accepts, never having learned about the earlier, rescinded, plea offer (although perhaps Defendant would have learned about it had Defense Counsel moved very quickly after it was originally rescinded.

Defendant has now pleaded guilty. What "potential sentence information" was "false" at the time Defendant pleaded guilty? (The earlier plea agreement was no longer available.) I think this was one of the questions that came up at argument.

Posted by: guest | Nov 1, 2011 5:12:46 PM

There already exists a remedy for the type of defense counsel mistake in both the cases currently before the Court - legal malpractice. Likewise, in both cases the offended party could have sought a bar disciplinary referral.

In the locale where I practice unspoken rule is that every plea offer at each stage of the proceeding to be placed on the record in open court in the presence of the Defendant. Pretrial procedure requires the judge to inform the defendant on the record of the current offer and the maximum an all counts conviction can carry.

Posted by: speaking just for me.... | Nov 1, 2011 5:13:38 PM

George --

"The Bill of Rights is written into any plea bargain contract (but not a civil contract) and that would include the right 'to be informed of the nature and cause of the accusation.'"

Complete nonsense. The WHOLE POINT of a plea agreement is to WAIVE almost all the protections of the Bill of Rights as far as they implicate criminal procedure, most obviously the right to trial, to confront adverse witnesses, to requre the government to prove its case, etc.

Not that it makes a difference to the subject of your post. One is informed of the nature and cause of the accusation by merely reading the indictment.

"Part of the nature of the accusation is the potential sentence in the plea bargaining context."

Again, complete nonsense. The nature of the charge has zip to do with the sentence. If I'm charged with stealing your lawn mower out of your garage, it doesn't make a particle of difference to your ability to understand the accusation whether the sentence is six months or six years.

Posted by: Bill Otis | Nov 1, 2011 5:14:40 PM

"Suppose Prosecutor extends a plea offer to Defense Counsel and that before Defense Counsel conveys it to Defendant, Prosecutor rescinds it -- he says he's made a mistake. Prosecutor then offers a new plea agreement, for a longer sentence, which Defense Counsel conveys to Defendant and that Defendant accepts, never having learned about the earlier, rescinded, plea offer (although perhaps Defendant would have learned about it had Defense Counsel moved very quickly after it was originally rescinded)."

And, for constitutional purposes, why is the defendant who isn't told by counsel about an earlier, but withdrawn, plea agreement any worse off than a defendant who **does know** that the prosecutor has made but then withdrew Plea Agreement #1, but nevertheless goes on to plead guilty in exchange for the sentence called for in less-favorable Plea Agreement #2? The Supreme Court has held that in that context, there was no constitutional significance to the earlier, withdrawn, plea offer; that if the defendant did not want to plead guilty in exchange for the sentence called for in Plea Agreement #2, he shouldn't have pleaded guilty; and that there's nothing particular unfair about requiring the defendant to abide by the terms of the plea agreement he accepted.

Posted by: guest | Nov 1, 2011 5:21:14 PM

"In the locale where I practice unspoken rule is that every plea offer at each stage of the proceeding to be placed on the record in open court in the presence of the Defendant. Pretrial procedure requires the judge to inform the defendant on the record of the current offer and the maximum an all counts conviction can carry."

If you didn't see the argument transcripts, I think there was some discussion about whether adopting a practice like that one would be desirable as a matter of policy for the federal courts.

Posted by: guest | Nov 1, 2011 5:23:58 PM

Thanks for the information, Guest.

In general, although at first blush it seems as though the defendant is going to get a windfall due to specific performance, it may not always play out that way. For example, perhaps the prosecution could or would have withdrawn the plea deal after it found out that the defendant had committed other crimes subsequently. Specific performance would not interfere with the prosecution's ability to charge the defendant for the other crimes.

It does become trickier when one considers that the prosecution's hands are tied with respect to the remedied case. Is the prosecution ever allowed to argue that the defendant breached the plea agreement at some point after the plea offer is re-extended? Depending on the terms of the plea agreement, is the prosecution precluded from arguing about the defendant's subsequent or relevant conduct at sentencing? I also think counsel in one of the cases pointed out the possible double jeopardy scenario if the defendant is acquitted of the charge contained in the original plea bargain, which was a compelling point.

Just some thoughts.

Posted by: Hola | Nov 1, 2011 5:35:49 PM

"It does become trickier when one considers that the prosecution's hands are tied with respect to the remedied case. Is the prosecution ever allowed to argue that the defendant breached the plea agreement at some point after the plea offer is re-extended?"

Assuming I'm understanding the question correctly, the prosecution is typically free to withdraw a plea offer at any time, for any reason or no good reason at all, even after the defendant has manifested an intent to accept it, signs a change-of-plea agremeent, etc., until the trial court accepts the agreement and enters judgment. (Thus, one of the problems here is that a claim of ineffective assistance of ocunsel would let the courts insist on specific performance that they wouldn't be able to insist in cases in which the prosecution simply wants to withdraw the plea offer because it's had second thoughts.)

"Depending on the terms of the plea agreement, is the prosecution precluded from arguing about the defendant's subsequent or relevant conduct at sentencing?"

Depends on the terms of the plea deal, I guess? (Cf. Puckett v. United States.)

"I also think counsel in one of the cases pointed out the possible double jeopardy scenario if the defendant is acquitted of the charge contained in the original plea bargain, which was a compelling point."

There are a number of problems. One is that the uncommunicated (or allegedly uncommunicated) plea offer becomes the hidden ace-in-the-hole. Acquittals or other favorable results at trial are unchallegeable by the prosecution, but results that are less favorable to the defendant than the supposedly unocmmunicated plea offer get blown up at the defendant's option. (This -- and all the other problems that the Justices spent two hours asking questions about yesterday -- is why I can't understand those who glibly say that of course the obvious remedy is go back in time, it's just not that hard.)

Posted by: guest | Nov 1, 2011 5:46:27 PM

Guest, my thoughts and questions were not directed at you, but I appreciate your input.

In federal practice and in my state, re-arrignment and sentencing are separate proceedings. Thus, there is typically no judgment after the court accepts the guilty plea. Between the time of re-arrignment and sentencing, defendants can get into all kinds of trouble. In the remedied case, does the prosecution have to simply ignore it? If we turn the clock back, shouldn't we also turn the clock back for the prosecution, allowing it to proceed to sentencing with the same rights or remedies it would have had in the first place, at least once the guilty plea is entered and accepted by the trial court? If we do that, then the remedy for defendant is somewhat hollow.

Also, while you say the prosecution may withdraw the plea bargain for any reason prior to re-arraignment (perhaps some states provide greater rights to limit this, but I don't know,) these arguments about enchroachment and the right to withdraw the offer fail to mention that the right to withdraw does not last in perpetuity. That is, speedy trial rights are at play. At some point, the criminal proceeding has to move forward. If the defense moves for a bunch of continuances that are granted, then perhaps those cut against an argument that the defendant was prejudiced, so no IAC would follow and no specific peformance.

Posted by: Hola | Nov 1, 2011 6:14:26 PM

My previous post got me thinking about the whole prejudice question. I believe it was Justice Breyer who mentioned that perhaps the prejudice prong needed to be tweaked in this context (i.e., in an IAC claim involving an uncommunicated plea offer). I would agree, albeit in different ways. I think Justice O'Connor would be invaluable at this task. Perhaps the prejudice question should be evaluated under a modified test. (Roe vs. Flores-Ortega in its practical application as to the prejudice question, as well as its take on the deficiency prong, comes to mind). In any event, the modified prejudice prong, in imprecise language, should ask whether there is a reasonable probability that the defendant could and would have accepted the plea deal (and, as necessary, that the defendant would have received a lighter sentence or the sentence recommended in the plea offer), but for counsel's failure to timely communicate the offer. No one factor (e.g., the could, the would, the timeliness, or the trial court's potential action) would necessarily be dispositive. Rather, like O'Connor said in Strickland, and as reiterated in other cases, like Flores-Ortega, the reviewing court looks at all the relevant factors/evidence. This approach kind of splits the baby down the middle, to the extent that the government can still mount a strong defense (and know what record to build) that the defendant fails to meet the prejudice prong, and it upholds the stringency of the IAC test, but it is not insurmountable for the defendant. I also think the prejudice test should absolutely take into consideration whether or not the trial court would have accepted the plea and imposed the recommended sentence, especially in light of how motions to vacate under 2255 are filed and handled.

Posted by: Hola | Nov 1, 2011 8:07:17 PM

Dicta on "every step", but makes sense.

My emphasis with caps and ► ◄
Sutherland, J., 287 U.S. 45 (1932)
POWELL et al. v. STATE OF ALABAMA.

Nos. 98-100. ~ Argued Oct. 10, 1932. ~ Decided Nov. 7, 1932.
"Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the ►INDICTMENT IS GOOD OR BAD◄. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be ►PUT ON TRIAL WITHOUT A PROPER CHARGE◄, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately ►TO PREPARE HIS DEFENSE◄, even though he have a perfect one. He ►REQUIRES THE GUIDING HAND OF COUNSEL —►►AT EVERY STEP◄◄— IN THE PROCEEDINGS AGAINST HIM."
POWELL et al. v. STATE OF ALABAMA. ~ Argued Oct. 10, 1932. ~ Decided Nov. 7, 1932
caselaw.lp.findlaw.com
PATTERSON v. SAME. WEEMS et al. v. SAME.

Posted by: JAG | Nov 1, 2011 9:53:40 PM

I really don't think the prejudice issue is that tricky. It is not hard for a trial judge to discern what the practice is in a particular court; attorneys and prosecutors can testify about whether judges routinely accept plea deals, for instance. I expect that a defendant could never prevail on one of these claims without taking the stand and testifying about whether the plea deal was communicated to him and whether he would have taken it; the court will judge his credibility just the same as it does other witnesses. The attorney who is allegedly ineffective can testify about what he did. All of these witnesses are subject to cross-examination. Defendants file petitions all the time in which they falsely claim they were mislead by their counsel; they rarely prevail. Occasionally a defendant raises a good claim, and a good judge will recognize the validity of the claim. It's all part of the day-to-day workings of the criminal justice system. The only thing I think is tricky is the remedy under the facts of this particular case. But if the defendant convinces the court he would have taken the deal, and that the judge would have accepted the deal, and that the deal was actually offered but not communicated to him, where's the harm in giving him the benefit of the original deal? Certainly the state can't complain, since it offered the bargain in the first place.

Posted by: C.E. | Nov 1, 2011 10:56:21 PM

"I really don't think the prejudice issue is that tricky."

You're right, if you're willing to loosen the right to effective counsel from its moorings. The right to effective counsel has heretofore (at least in Supreme Court precedent) been limited to protecting defendants from either unreliable results (and there's nothing here to suggest that the result is unreliable) or issues whether the Court has simply said that prejudice will be presumed (i.e., conflicted counsel). Since neither of these issues are present, you guys are trying to stretch the law. That's fine, but at least acknowledge that. This is why that supposedly brilliant Justice Kagan was left to argue (and her question was argumentative) that the right to effective counsel was there to protect defendants from not getting screwed vis a vis other hypothetical defendants. That's remarkable. Now we have some sort of half-baked Equal Protection argument here? OK. Whatever.

If the Court wants to come out and say, "Look, we know this isn't really what the Sixth Amendment was designed to get at and this is a stretch from Strickland, but the integrity of the process is worth it.", then I could live with that. But arguing, as Kagan did, that it's a no-brainer that Strickland and its progeny (despite all the language that says that the right is to protect fair trials and not given for its own sake) clearly cover this is either idiocy or intellectually dishonest. Let's get that right.

Posted by: federalist | Nov 2, 2011 9:38:07 AM

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