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April 24, 2013

A prosecutor's potent perspective on Lafler?, Frye and the future of plea bargaining

I was pleased to learn about this interesting new commentary now appearing in the Houston Law Review’s online edition by Graham Polando, who is Deputy Prosecuting Attorney in Marshall County, Indiana.  The short and insightful piece is titled "Being Honest About Chance: Mitigating Lafler v. Cooper's Costs," and here is an excerpt from its first section:

What so exorcises prosecutors about Lafler, then, is that Cooper will get to have his cake and eat it too --—he got a shot at acquittal, then, that having failed, he will get the original plea offer the prosecutor designed, at least in part, to avoid that contingency.

The problem, then, is not one of resources (as Justice Alito contended), but of information.  Cooper received a look behind the veil of uncertainty provided by the trial and did not like what he saw.  Rather than an egg that cannot be unscrambled, this is a bell that cannot be unrung.

After Lafler, a prosecutor rightly worries, a defendant will be able to proceed to trial with the plea offer in his pocket, forcing specific performance when counsel's advice to proceed turns out to be incorrect, as it must have been -- he was, after all, convicted!  Chief Justice Roberts himself noted this concern at oral argument: “"[I]f you're the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial."  As in other contexts, the defendant benefits from both his counsel's successes (by getting a favorable result) and failures (by obtaining relief).  The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them.

April 24, 2013 at 06:21 PM | Permalink

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"Nevertheless, no one can predict the future with certainty, and for that reason, no one, including your attorney, can promise or guarantee either that you will be convicted, or that you will be acquitted. You should carefully consider your attorney’s advice on whether to plead guilty or not guilty, which is based on training and experience you likely do not have. However, the decision to plead guilty, with or without a plea bargain, is yours and yours alone."

The problem here is that this instruction doesn't actually solve the problem which is one of information deficits. The fact of the matter is that the defendant in the vast majority of cases has no ability to second guess the defense attorney.

Step One: Warn the defendant of risk that the defense attorney might be wrong
Step Two: Warn the defendant that the defense attorney has more knowledge and experience than you
Step Three: Inform the defendant he is on his own.

All this really does is shift the information deficit from what the defendant must randomly guess about. Before, he had to randomly guess about what the judge/jury might actually do. Under the proposed system he now has to randomly guess whether the defense attorney gave him good or bad advice.

Let go back to the original case and apply the new system. If the defendant trusts the public defender and refused to take the plea offer his exposure would be up to 30 years in prison. If he did not trust the public defender and accepted the plea agreement his exposure would have been 85 months in prison. Given those stakes, upon what *rational* basis could the defendant calculate whether he should trust the public defender or not? A PD who the defendant has maybe spent a few hours of his life with and whose expertise he has little to no chance to evaluate. It is CRAZY. The defendant is simply rolling the dice BLINDLY about an extra 23 years in prison.

Posted by: Daniel | Apr 24, 2013 8:31:25 PM

"The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them."

Good luck with that. It might work in the federal system, where prosecutors cherry-pick cases and their charges drive everything in the limited number of cases they have. In the state courts, however, with their huge volume issues, prosecutors don't want to try every case any more than defense attorneys do.

What the reasonable prosecutor should do, in light of Lafler, is make a fair offer and place that fair offer on the record. That way, the defendant at least can't claim that his/her lawyer hid from him the offer.

Posted by: Anon | Apr 24, 2013 9:54:25 PM

Chief Justice Roberts fears are specious: “"[I]f you're the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial."
If an lawyer followed the Chief's unverified course of action an number of things would happen. First, the prosecutor would never do a deal with that defense attorney again unless it was placed on the record, (2) the lawyer would probably have to deal with an inquiry from disciplinary counsel, (3) the defense lawyer's credibility/reputation (and pocketbook)would be permanently damaged in the eyes of the judge and the prosecutor (which would not bode well for future clients).
In short, it would be professional suicide to implement such a plan. Remember there are more defendants than defense lawyers.
It takes three participants -- the judge, the prosecutor and defense attorney -- all doing their jobs by meeting their professional/constitutional obligations to make sure that a defendant's plea is knowing, voluntary and intelligent. Anything less makes one doubt the legitimacy of the system.

Posted by: ? | Apr 24, 2013 10:47:29 PM

Write it down, so that it's clear. Write it with an expiration date. That's how my plea offers usually come from the prosecution. In those circumstances, what's the problem for the prosecutor? I had one oral offer a while ago, that my client rejected. The prosecutor insisted on stating the offer on the record at a later hearing, which upset me as possibly interfering with my attorney-client relationship, though it wasn't damaged in that case.

Posted by: Greg Jones | Apr 25, 2013 10:03:11 AM

Frye is easy to handle -- make plea offers in writing; if in a post-conviction case a defense attorney testifies that he/she failed to communicate the offer to the client report that attorney to the disciplinary counsel. A couple of attorneys getting suspended for not talking with their client about plea bargains will get the message through.

Laffler is the hard one to handle because it involves the quality of the advice in a case in which both sides agreed that there was no dispute that the advice was incompetent (a mistatement of the law). Because of that unique fact, nobody quite knows what the scope of incompetence in plea negotiations is, making it very hard for prosecutors to deal with Laffler. Since Laffler, I have had several cases in which the testimony at the IAC hearing makes it clear that the defense attorney did not perceive the evidence against his/her client in the same way that the prosecutor (and ultimately the judge and jury) perceived that evidence. It is unclear if that difference in perception is enough to demonstrate incompetence and give the defendant the second bite at taking the original plea offer.

Posted by: tmm | Apr 25, 2013 10:11:37 AM

Shouldn't that be exercises, not exorcises? I mean, I know some defendants and their lawyers see the prosecutors as demons, but I don't think that is what he was going for here.

Posted by: anon | Apr 25, 2013 11:40:10 AM

oops, didn't see that prior anon... I (the one who just posted the usage nitpick about exer-/exor-cise) am a different anon

Posted by: anon | Apr 25, 2013 11:45:28 AM

@tmm Under Laffler if the defense screws up that error is imputed to the state. That is what has the prosecutor's upset. It not the fact the contours are unknown, it is that they exist at all. Polando's goal is to nullify Laffler.

@anon. "What the reasonable prosecutor should do, in light of Lafler, is make a fair offer and place that fair offer on the record."

But what is fair in this context? If the defendant truly and rationally believes he is innocent then no plea offer will be perceived as fair by the defendant. Why should he spend any time in jail for something he didn't do?

To my mind the heart of the problem is the huge dichotomy between plea offers and the trial penalty. The bad advice of the defense attorney can have enormous consequences. If the difference between good advice and bad advice was only an extra six months in jail this problem would not be seen as much of a problem. Of course, if there were not such a huge discrepancy then the defendant might feel there was nothing to lose by going to trial, undermining one major purpose of the plea bargain. So there is a great deal of cognitive dissonance with plea offers because one person's incentive is another person's coercion.

Posted by: Daniel | Apr 25, 2013 2:48:37 PM

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