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March 24, 2012

Perspectives on the import and impact of Lafler and Frye

23plea-graphic-articleInlineThe New York Times yesterday published this effective piece, headlined "Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals," discussing the Supreme Court's important rulings this week in the Sixth Amendment rulings Lafler and Frye. Here are excerpts:

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence.  Courtroom trials, the stuff of television dramas, almost never take place.

Ronald F. Wright, a professor of law at Wake Forest University, said that for generations plea bargains have been the rule rather than the exception, “and the Supreme Court has, until the last two or three years, found a way to ignore that.” Professor Wright likened the court’s decisions on Wednesday to “Rip Van Winkle waking up.  He looks around and says, ‘Wow, when I went to sleep the world was full of trials.’ ”...

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Reacting to the decisions, legal scholars on Thursday used words like “huge” and “bold” to describe them. “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next few years,” Professor Wright said.  Perhaps how bold was reflected in the intensity of Justice Antonin Scalia’s scathing dissent, which excoriated the court for elevating the “necessary evil” of plea bargains into “a constitutional entitlement.”

But what legal experts seemed to agree on was that it was difficult to gauge what concrete effects the rulings would have on everyday legal practice.  Professor Bibas said that they would probably lead to a flurry of postconviction filings by people who believed their lawyers were at fault for their failure to get a better deal.  “But very few of them will succeed,” he said. “Courts are very good at tossing these cases out.”

The rulings, he added, might also result in requirements that plea offers be put in writing — something that Justice Kennedy noted was already the case in Arizona.  While many states require plea agreements to be written and presented before a judge, plea offers are often verbal and made in informal settings.

More significant, Professor Bibas said, was the symbolic importance of the court recognizing the need for closer monitoring of pretrial negotiations.  “I’m not a big fan of plea bargaining,” he said, “but the least we can do is to clean up the messy way it’s practiced.”

However, Nancy King, a law professor at Vanderbilt University, worried that the court’s rulings would distract states from more important issues.  “Ironically, by beefing up the resources devoted to postconviction litigation, the court may have actually made it more difficult for states to provide competent legal assistance to those indigent defendants who should never be convicted in the first place,” she said....

Steve Banks, attorney in chief for the Legal Aid Society in New York, noted that in 15 states, including New York, prosecutors are not required to turn over their evidence or witness lists to the defense until just before trial, making it difficult for defense lawyers to properly assess the merits of a plea offer.  “Now that the Supreme Court has said that you are entitled to effective assistance at the plea-bargaining stage of the case,” Mr. Banks said, “It’s hard to imagine how prosecutors in states like New York, with antiquated discovery statutes, can continue to withhold critical information.”

But one former prosecutor sided with Justice Scalia.  The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because “the squeezed economics of the system virtually demand that almost all cases be processed by watered-down negotiation rather than by trial,” said William G. Otis, a former c Appellate Division chief at the United States attorney’s office in the Eastern District of Virginia.  “That view of the system is perverse,” Mr. Otis said, “a virtual tip of the hat to cynicism sailing under the flag of practicality.”

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March 24, 2012 at 03:48 PM | Permalink


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Ok, I am a prosecutor. I decide that the policy in my office is that prosecutors only solicit offers from defense counsel--they don't make them. Or you make offers that are subject to another's approval in the office.

Posted by: federalist | Mar 24, 2012 5:17:27 PM

This is a remedy without a real problem. The lawyer rent seekers on the Supreme Court just made up this problem, and generated massive lawyer government make work jobs, costing the tax payer $billions. One may find a weird case to support a pretext. Example. Gideon was actually guilty, and the remedy set free a guilty alcoholic. He then beat up the wife and died drinking at a young age. The Supreme Court killed him. This is the Twilight Zone world of the rent seeking lawyer hierarchy.

So a fictional remedy is invented for a fictional lawyer practice, where the adjudicated charge is fictional. One fiction on top of another fiction.

Meanwhile here is a little non-fiction. 20 million FBI Index felonies a year, 5 million being violent, 17,000 murders. Only 2 million prosecutions. A huge fraction of the defendants are innocent. And the bill in actual and collateral costs of crime is likely $10 trillion hit to the economy, including drops in real estate values from crime, sometimes to negative territory. People would not accept a home in some areas even if paid to take it.

How much will the public take before it decides to fire this incompetent, rent seeking cult criminal, a toxic, pro-criminal, devastating pestilence on our nation? Rent seeking is a synonym for armed robbery. And the sole validation of the decisions is at the point of a gun. There is no external evidence to validate these insane decisions.

Posted by: Supremacy Claus | Mar 24, 2012 11:15:46 PM

I find the article quite offensive. It only quotes lawyers. There is no innocent defendant. No crime victim opinion.

Posted by: Supremacy Claus | Mar 24, 2012 11:18:12 PM

Federalist: What happens when the defense attorney does not make an offer? We as the prosecution know that they have not, isn't IAC all by itself so long as there is something we would accept short of as charged and the maximum sentence? Since we cannot interfere in the communications with counsel, we cannot know if that was a chosen route or whether the attorney just neglected to do so. I do not see it solving much.

This is what will happen here. There will be habeas filings to open up long closed cases. Given the nature of this new constitutional remedy there is virtually no case that cannot at least allege a colorable claim as defendant's memories of what they would have accepted after losing at trial is highly maleable. Many cases will fail, but some will succeed, not because of the merits but simply because the new players will have a different view of how things should work out. Think of it like flipping a coin. Head=same result, tails=a better outcome for the defendant. Flip it enough and the deal gets better, but it cannot ever get worse for the defendant in these post conviction scenarios. The death penalty bar must be ecstatic. Expect IAC in plea bargaining in every one whether or not any plea bargaining took place.

The end result is that the main beneificiaries will be people who received lengthy sentences for crimes committed long ago as there will be little incentive to open a case where the defendant has long ago finished his sentence. The hearings will take place with witnesses who are long retired or dead and therefore cannot effectively rebut the claims that they made some offer, or would have rejected the same. You will have players who do not properly view their role. For example you will have prosecutors who use their current policy preferences to undo old sentences (and now possibly convictions too) via habeas. Absurd you say? Well this is happening in LA County by the DA encouraging habeas filings for sentencing IAC which they will concede in the trial court to give three strikers who do not fit the current charging policy but were convicted under a previous DA. While that may make them feel good, it makes a mockery of the finality of judgments. I also wonder how much, if anything, they are telling the victims of those old crimes. Even if the prosecutors do not do this, the judges will. Remember the coin flip. File, appeal, repeat until they will not let you anymore. Anti-death penalty DA's and judges, you can sure bet they will flip death sentences with this new IAC right.

This decision will make the necessary evil of plea bargaining even more prevalent by further reducing the incentive to try a criminal case. In my county, judges do not want to try cases, the defendants sure don't which leaves the People. Some prosecutors do, some don't, but the few that do will surely be disincentized when they see hard fought convictions for serious crime undermined because the defense lawyer, who we have no say in who the defendant gets and what they tell them, made a hindsight error in judgment.

Posted by: David | Mar 25, 2012 1:38:28 PM

well here's a thought! can some of the crimes we now call crimes

Those with no REAL victim!
those like the drug laws. if all they are doing is snorting or injecting it into themself and didn't steal or hurt someone to get it. FORGET IT!

THAT alone would gut the criminal sytem of 1/2 it's defendants!

Heck might even have time then for the occasional trial or two!

Might even reach the point of NOT NEEDING to plea bargin with criminals!

Posted by: rodsmith | Mar 25, 2012 2:07:25 PM

"THAT alone would gut the criminal sytem of 1/2 it's defendants!"

That would then cause ... what to the lawyer profession? So it will ... happen. The answer is, never.

Posted by: Supremacy Claus | Mar 25, 2012 4:22:36 PM

David --

I love your phrase, "highly maleable." That might be the most diplomatic way of putting it I've ever read.

As I said on C&C, the Court's nonchalant cynicism is amazing. Its incoherent discussion of remedies is a good tip-off. It simply has to know that it has invited a new record for the number of lies uttered in post-conviction cases.

Posted by: Bill Otis | Mar 25, 2012 10:40:31 PM

Appellate cases supporting these types of claims have been around for many years. The sky is not falling.

Posted by: Tim Holloway | Mar 26, 2012 10:56:35 AM

Tim Holloway --

No, the sky is not falling. But the perjury meter is about to blow a fuse.

Posted by: Bill Otis | Mar 26, 2012 11:46:09 AM

People would not accept a home in some areas even if paid to take it.

Posted by: Lakers Snapback Hats | Jul 6, 2012 8:12:13 AM

Go to - Daddy Justice.com

Posted by: SPA | Mar 31, 2013 7:43:45 PM

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