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October 31, 2011

Scary hard cases confronting bad plea advice, prejudice and Sixth Amendment remedies

As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444), two cases dealing with claims of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial.  Here are some effective previews from effective court reports:

Because 95% of all criminal convictions are obtained through plea deals (and because plea offers are usually proposed even in this 5% of cases resulting in convictions via trials), these cases have the potential to be blockbusters both as to of the number of past and future cases they could impact and also as to the future direction of the Sixth Amendment and constitutional regulation of the plea bargaining process.  And, as the title of this post and the SCOTUSblog preview spotlights, these cases raise super-hard issues of prejudice and remedies that were conveniently dodged in Padilla v. Kentucky, the major Sixth Amendment plea advice ruling last year.

Especially because Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan are relatively new voices and seem to be relatively uncertain votes on these hard issues of modern criminal procedure, I am going to be especially interested in reviewing the transcripts in Lafler and Frye to see how they all engage with this issue at oral argument today.

October 31, 2011 at 10:08 AM | Permalink


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Alito an "uncertain vote" on a hard issue of criminal procedure? No way. On any issue of criminal procedure - hard or otherwise - he is a rock-solid vote for the prosecution.

Posted by: app.law | Oct 31, 2011 11:17:27 AM

extraordinarily difficult issue with strong concerns on both sides.
I have a postconviction case pending which is being held open until we see what happens. My client is charged with indecent liberties and offered five years. He asks his lawyer whether he could be charged with a greater offense if he turns down the plea. Lawyer says no. Guess what happened?
Guy turns it down, gets charged with the greater offense, convicted, serving 30 years. Understandably he says, "If I knew then, what I know now...." He wants his original plea offer back, rejected only because his lawyer wasn't familiar with Bordenkircher v Hayes.

tough issue, because the state has already tried and convicted the def on an error free trial.


Posted by: bruce cunningham | Oct 31, 2011 12:03:51 PM

"Alito an "uncertain vote" on a hard issue of criminal procedure? No way. On any issue of criminal procedure - hard or otherwise - he is a rock-solid vote for the prosecution."

So how do you explain his concurring opinion in Padilla (and his concurring opinion in the equitable tolling case from Florida)? Both times, his vote was contrary to the prosecution's position, even though he had serious misgivings about the breadth of the majority's rule (or language) and would have preferred a narrower, more tightly focused ruling and opinion, albeit one still coming out the defendant's way.

Posted by: guest | Oct 31, 2011 12:23:23 PM

guest: You're right! I had overlooked the Holland and Padilla concurrences. Alito, a closet lib. Who knew?

Posted by: app.law | Oct 31, 2011 12:42:03 PM

Lafler v. Cooper is an easy case. Putting aside the AEDPA problem for the defense, the right to effective rep is there, not for its own sake, but to protect the right to a fair trial. So how in the world could it possibly be an issue if the guy got a fair trial?

Posted by: federalist | Oct 31, 2011 3:35:53 PM

No, federalist, not just to protect the right to a fair trial. See Text of 6th Amendment: "... the accused shall enjoy the right ... to have the Assistance of Counsel for his Defense," not "for his Trial." See also Strickland v. Washington (right extends to sentencing, not just to trial).

The question in Lafler is whether the right extends as well to plea bargaining.

Posted by: onetwo | Oct 31, 2011 5:16:10 PM

It is easy to say the trial is the only thing that matters for reliability purposes, but I think that is taking too narrow a view of "reliability." When 95% of results come through the plea bargaining process, it seems that there is a good argument that, in the big picture, the reliability of the process as a whole is dependent on the reliability of that plea bargaining process.

Posted by: Anon | Nov 1, 2011 2:37:08 PM

Anon --

But it's not the reliability of the plea bargaining process that's at issue. The man was guilty, was found guilty at trial, and would have pleaded guilty. The outcome was reliable by any standard.

The problem was with the shrewdness of the plea bargaining strategy, not its reliablility. And the Sixth Amendment nowhere promises that your lawyer will be shrewd.

Posted by: Bill Otis | Nov 1, 2011 3:34:22 PM

The Colorado Supreme Court held that defendants are entitled to effective assistance of counsel in plea bargaining. The sky did not fall, the floodgates have not opened to litigation in this area. It would be palpably unfair to refuse to allow defendants the opportunity to engage in plea bargains which in some cases they were unaware of solely because of bad lawyering.

Posted by: LRK | Nov 26, 2011 12:58:50 PM

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