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November 24, 2012

One notable case showing impact and import of Lafler and Frye

The Wall Street Journal has this new piece reporting on how the Supreme Court's landmark opinions earlier this year concerning ineffective assistance of counsel and plea bargaining has impacted one notable case. The piece is headlined "Decisions Open Door to Appeals of Plea Bargains," and here are excerpts:

Two recent Supreme Court decisions helped win freedom for a California man who was given a 25-year minimum sentence after pleading guilty to passing a bad check, the latest development in a legal re-evaluation of the rights of defendants who engage in plea bargains.  In late September, a three-judge panel of the Ninth U.S. Circuit Court of Appeals ordered a hearing into possible missteps by an attorney representing Tyrone W. Miles.

Mr. Miles had alleged he received inadequate legal counsel when he cut a deal with state prosecutors in 2005 for using a bogus $474 check in a convenience store in Hanford, the central-California town where he lived.  As a result, the 42-year-old Navy veteran said he lost out on a plea bargain that would have given him a six-year sentence instead of the 25 years to life he received when he later did plead guilty under California's so-called "three strikes" law for repeat offenders.  The attorney allegedly counseled Mr. Miles to reject the six-year deal without checking to see that his client faced possible life imprisonment under the three-strikes law.

In the wake of the September court decision and the November election in which California voters agreed to modify the three-strikes law, the two sides in the Miles case petitioned the appellate court to issue an order directing that Mr. Miles be freed in the near future. The appellate court issued that order on Wednesday....

The Ninth Circuit's September decision cited two Supreme Court decisions, both issued in March, in which the high court found defendants in two other cases hadn't been adequately represented by their attorneys during the plea-bargain process....

Judges and legal observers view the high court's rulings as a major shift in the standards that govern plea bargaining, a widely used legal strategy in which defendants plead guilty to one or more charges usually in exchange for a lighter punishment than they would receive if they went to trial and lost.  Plea bargaining allows criminal cases to be settled more quickly and with less expense than a jury trial....

As the Supreme Court rulings percolate through the judicial system, there will be many more cases where defendants challenge their plea deals based on inadequate assistance of counsel, said David Carroll, executive director of the Sixth Amendment Center, a Boston-based nonprofit that focuses on legal representation for indigent defendants. The Ninth Circuit decision "is the tip of the iceberg," he said.

Critics worry that the Supreme Court decisions could clog the judicial system with questionable plea-bargain appeals.  In his dissent to one of the court's decisions in March, Justice Antonin Scalia wrote that the majority's position "elevates plea bargaining from a necessary evil to a constitutional entitlement" and "opens a whole new boutique of constitutional jurisprudence."

November 24, 2012 at 11:36 AM | Permalink

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Comments

Frye and Lafler are truly horrible, results-driven, decisions. It really is that simple. It is (well was, anyway) hornbook law that the right to counsel is there to protect the right to a fair trial, and where one is given, there's no prejudice. The reconstituted Gang of Four and Kennedy ought to be ashamed. But the sad fact is that they consider themselves enlightened.

Posted by: federalist | Nov 25, 2012 10:43:32 AM

It seems to me that, where additional proceedings become necessary because of the incompetence or misbehavior of X, X should have to pay the bill for those proceedings.

If X is Mr. Smith, the prosecutor, he pays it.

If X is Mr. Jones, the defense counsel, he pays it.

Does anyone disagree with this? And does anyone disagree that the failure or refusal of X to pay up should result in his disbarment?

Posted by: Bill Otis | Nov 25, 2012 2:27:07 PM

My opinion of Lafler and Frye is mixed, however, Justice Scalia's statement that plea bargains have been raised to the level of "constitutional entitlement" is utter nonsense (I dispute that plea bargaining is a necessary evil also, but that's for another day). Neither Lafler nor Frye held, nor has any decision before them held that a criminal defendant has a constitutional right to a plea bargain or offer to plea from the state.

Posted by: C | Nov 26, 2012 9:53:58 AM

C --

"Neither Lafler nor Frye held, nor has any decision before them held that a criminal defendant has a constitutional right to a plea bargain or offer to plea from the state."

Right you are. That is one reason that, were I back in the USAO, I would make waiver of a Lafler/Frye remedy a condition of entering plea negotiations.

I haven't thought through exactly what the waiver would say, but it would be something to the effect that "the defendant is aware that defense counsel vary considerably in quality and experience, and that there is no advance guarantee that counsel in this case will give sound or even competent advice, although the great majority do so. If the defendant is in any way dissatisfied with his counsel, the government will agree to a reasonable delay for him to secure counsel with whom he is satisfied. Knowing nonetheless that he may recieve poor advice from his counsel, and that such advice (or failure to advise) may result in an outcome less favorable than he would recieve with a typically competent lawyer, the defendant waives any remedy that would involve vacating his conviction or lessening the sentence ultimately imposed, in exchange for the government's agreement to negotiate a dispostion of this case. The defendant understands that he is free to reject this provision and demand his Constitutional right to a trial, but if that is his choice, the government will, as is its right, proceed to trial on all charges stated in the indictment."

I understand that this waiver will be criticized as requiring the defendant to relinquish something he cannot know about before it happens. But exactly the same thing is true of the waiver of sentencing appeal (which I wrote and which has been approved by all the circuits). The waiver of sentencing appeal ALSO requires the defendant not to contest the sentence, which he likewise cannot and does not know about in advance.

Lafler and Frye contain the seed of all manner of mischief and post-hoc self-dealing between lawyer and client, every bit of which will be done at the taxpayers' and the government's expense, not to mention its cost to finality. A government lawyer is required legally to advance the interest of his client, just as a private lawyer is. Creating some sort of containment device to deal with Lafler/Frye backtracking and slick practice is therefore permissible, indeed desirable, for an AUSA.

Posted by: Bill Otis | Nov 26, 2012 2:09:25 PM

If widely adopted, of course, Bill's remedy would completely nullify the effect of Lafler and Frye. If those decisions only kick in where there is a plea, and the government will accept no pleas without waiver, that is the end of Lafler/Frye pleas. I'm not sure what the point is of the decisions if they can so easily be abrogated by the extraction of such waivers, under circumstances where the government's massive leverage all but ensures that defendants will waive anything to get the deal.

I don't think that sentencing waivers are comparable, because at least in that case you are fully informed and advised about the *range* of possible sentencing outcomes before executing the waiver (and sometimes the waiver is further limited -- i.e., a waiver of appeal so long as the sentence is within or below the guidelines). With a Lafler/Frye scenario, the whole problem is usually that you were led to believe that the range of possible outcomes you are exposing yourself to by accepting/rejecting a deal is A to D, but it's actually A to P or Z.

Posted by: Anon | Nov 27, 2012 4:45:35 PM

Anon --

"If widely adopted, of course, Bill's remedy would completely nullify the effect of Lafler and Frye."

That's the whole point, just as it was my point to nullify the effect of the SRA's grant of sentencing appellate rights for convicted defendants. Like any other lawyer, I was employed to advance, through legal means, the interests of my client. I did so then, and would again. Still, not to worry. I don't think Eric Holder will be bringing me on board.

"I'm not sure what the point is of the decisions if they can so easily be abrogated by the extraction of such waivers, under circumstances where the government's massive leverage all but ensures that defendants will waive anything to get the deal."

Yeah, well, maybe it wasn't such a good idea to sell the meth to that 15 year-old.

"I don't think that sentencing waivers are comparable, because at least in that case you are fully informed and advised about the *range* of possible sentencing outcomes before executing the waiver..."

Wrongo. See US v. Marin, 961 F.2d 493 (4th Cir. 1992), available at https://bulk.resource.org/courts.gov/c/F2/961/961.F2d.493.90-5737.html

Posted by: Bill Otis | Nov 27, 2012 9:33:08 PM

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