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May 20, 2012

"Plea-bargaining cases: Form over substance"

The title of this post is the headline given to this notable commentary in the National Law Journal by Harlan Protass concerning what the significant SCOTUS rulings in Lafler and Frye did not do. Here are excerpts:

Lafler and Frye no doubt provide an important remedy to criminal defendants who didn't receive effective assistance from their lawyers in plea negotiations and, thus, were subjected to less favorable outcomes. But neither decision provides any real support to attorneys actually looking to effectively help their clients decide whether or not to go to trial. Rather, only changes in the rules governing governmental disclosure obligations will.

Fifty years ago in Brady v. Maryland (1963), the Supreme Court recognized the importance of disclosing favorable information to criminal defendants bearing on either their guilt or punishment.... Since then the Supreme Court has held in U.S. v. Agurs (1976) that the duty to disclose exculpatory evidence applies even if there has been no request by a defendant or his lawyer and, in U.S. v. Bagley (1985), that the information government lawyers must disclose includes impeachment as well as exculpatory evidence....

Disclosure of all Brady material is obviously important for purposes of  trial. But it's also critical to defense counsel seeking to size up a case and advise their clients concerning the key question of whether or not to go to trial.  After all, it's difficult to give good legal advice without a full picture of the government's case.  Effective assistance of counsel in the context of plea negotiations therefore is difficult to provide without all Brady material in hand....

[But] uncertainty continues as to when favorable Brady material must be disclosed. According to the NACDL, most courts apply a vague and confusing rule requiring disclosure only "in time for the defense to reasonably use the evidence."  Moreover, most federal district courts don't have clear directives specifying the timing of disclosure.  And DOJ's own guidelines still provide ­prosecutors with broad discretion concerning the timing of Brady disclosures....

Various proposals have been made to change the timing of Brady disclosures, thereby giving defense lawyers a real chance in plea negotiations — in other words, the materials they need to provide the effective assistance of counsel contemplated by Lafler and Frye. For example, proposed legislation entitled the "Fairness in Disclosure of Evidence Act of 2012" would require — "without delay after arraignment and before entry of any guilty plea" — prosecutors to turn over all evidence that "may reasonably appear favorable" to a criminal defendant....

Lafler and Frye surely provide important procedural protections for criminal defendants. They permit relief even after trial for the failure of a defense lawyer to communicate a plea offer or provide competent advice concerning such an offer.  Notwithstanding those benefits, discovery reform, rather than post-conviction procedural protections, is the best means for assuring that criminal defendants receive effective assistance of counsel when considering government plea offers.

May 20, 2012 at 09:59 PM | Permalink


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There is a reason why a defendant does not have a constitutional right to a plea bargain, because it does not improve the reliability of the guilt determination. Jury trials, on the other hand, do. Providing for a constitutional right to Brady information in the plea bargaining stage simply shifts the relative amount of bargaining power a bit. While that may be a reasonable policy outcome via legislation, prosecution office policy, or individual prosecutorial preference, it has no business being incorporated out of thin air into the Constitution. The constitutional right to effective assistance of counsel in plea bargaining is not a constitutional right to a plea bargain itself.

Posted by: David | May 20, 2012 10:19:14 PM

Plea bargaining isn’t going away. Brady isn’t going away. Nor are controversies about what constitutes “Brady” material.

I don’t think that this blog covered it, but here are the various takes on Lafler and Frye

1. Good for defendants. It will allow them some relief for a genuinely non-communicating defense attorney.

2. In some states, it is forbidden to discuss offers with the judge, so the prosecutors have taken to making it KNOWN to the judge that there was a rejected offer. Upon conviction, the judge doesn’t know what the offer was, and the state is free to demand a trial tax. Of course, if the offer IS disclosed the judge can avoid imposing a trial tax.

3. Bad for defendants. In places with a strong defense bar (i.e. one that can keep all prosecutors, if necessary, in trial at all times, and win over 40% of the time), it is often a tactic of defense attorneys to tell their clients that an original offer is just a sucker’s deal (i.e. because most charges are reduced in one way or the other). In fact, I know some defense attorneys who, after getting an ethical opinion on the issue, get a written authorization from all clients to reject all offers of a certain kind (usually for an “as-charged” deal). This is an extremely powerful weapon, because it allows great leverage in making plea deals. (They can smugly say “I don’t have to take that back to my client, because he rejected it.) Laffler and Fry will allow the state to, on the eve of trial, make the defendant acknowledge that he could be getting out of jail today with the more serious conviction on is record.

Posted by: S.cotus | May 21, 2012 2:22:15 AM

that's true S.cotus

BUT it would also clear up a lot if the law REQUIRED upon pain of INPRISONMENT the release of any information received by the DA's unless proven before a JUDGE it workproduct within 48 hrs!

You get it. You have 48hrs to prove to a judge it's workproduct...otherwise get off the old fat ass and RELEASE!

that would end these continual lawsuits and free up a hell of a lot of court time!

Posted by: rodsmith | May 21, 2012 10:45:56 AM

This varies by state.

To be fair, many DAs don't have access to the evidence that they use upon charge.

Also, who would prosecute these DAs? Other DAs?

I would submit that this is better left to the political process. When cases are dismissed for discovery violations, the voters (or rival candidates) will notice.

Posted by: S.cotus | May 22, 2012 10:44:44 AM

Crime committed at age 17. Tried as an adult. Not offered a plea deal until in court and the jury was being chosen. Then the Judge inquired whether a plea deal had been offered. When informed "no", the defendant was offered a plea deal and so informed of the offer by his defense attorney. The defendant had a very short time to decide and was allegedly only told by his attorney that "It is your decision". He was offered around 15 years which he turned down. His attorney then informed the judge and the trial was held. He got 37 years, now reduced to 32 years. Given his maturity and limited time to decide and lack of much cautionary advice by his attorney, do you think this defendant can successfully appeal.

This was a federal court.


Kent Cockerham (friend of defendant)

Posted by: kent cockerham | Jul 13, 2012 9:47:09 PM

Please delete this comment. I got the facts wrong.


Kent Cockerham

Posted by: kent cockerham | Dec 13, 2013 9:48:56 PM

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