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July 9, 2009

Interesting split Tenth Circuit ruling on ineffectiveness assistance at plea stage

Yesterday the Tenth Circuit handed down an interesting little ruling in Williams vs. Jones, No. 06-7103 (10th Cir, July 8, 2009) (available here), concerning the rules and remedies surrounding ineffective assistance of counsel at the plea stage of a criminal case.  Here is how the per curiam majority opinion starts:

Petitioner-Appellant Michael Williams appeals from the district court’s denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The only issue before us is whether, having determined that Mr. Williams received ineffective assistance of counsel in rejecting a plea offer, the Oklahoma Court of Criminal Appeals (“OCCA”) fashioned a constitutionally permissible remedy.  Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand.  On remand, the district court should impose a remedy that comes as close as possible to remedying the constitutional violation, and is not limited by state law.

Here is how the lengthy dissent from Judge Gorsuch gets started:

The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers.  We have no authority to disturb this outcome.  The majority says that counsel’s deficient performance in the plea bargain process denied Mr. Williams a lesser second degree murder conviction, and that this justifies voiding the result of Mr. Williams’s fair trial.  But the due process clauses of the Constitution’s Fifth and Fourteenth Amendments do not encompass a right to receive or accept plea offers.  As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain.

Without challenging any of this, the majority nonetheless recognizes a constitutional right to accept a plea offer grounded in the Sixth Amendment’s guarantee of effective assistance of counsel, creating indirectly what the Supreme Court’s precedents preclude it from recognizing directly as a matter of due process under the Fifth and Fourteenth Amendments.  The practical upshot?  So long as a defendant can claim his lawyer mishandled a plea offer, he can take his chances at a fair trial and, if dissatisfied with the result, still demand and receive the benefit of the forgone plea.  The majority’s holding has already been rejected by a number of other courts and been the subject of a grant of certiorari (later dismissed when the parties mooted the question). See Hoffman v. Arave, 455 F.3d 926, 942-43 (9th Cir. 2006), cert. granted, 128 S.Ct. 532, 532-33 (2007), vacated as moot, 128 S.Ct. 749 (2008).  Respectfully, I dissent.

July 9, 2009 at 02:53 PM | Permalink


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This really is an easy question. Judge Gorsuch is 100% right. The right to effective assistance of counsel is tied to the defendant receiving a fair trial. If the defendant actually receives a fair trial, then he has not been harmed (in the constitutional sense).

Posted by: federalist | Jul 9, 2009 3:09:04 PM

Based on the quote from Judge Gorsuch's dissent, most of the work on the cert petition has been done.

Unless this goes en banc first.

Posted by: anonymous | Jul 9, 2009 3:34:28 PM

Unless I missed it, the majority opinion doesn't even deal with the quoted portion of Cronic in the dissent.

Wow. Still hard to get my arms around the majority. If the effective assistance right is a means to the end of getting a fair trial, how can the defendant complain about getting a fair trial?

Posted by: federalist | Jul 9, 2009 3:48:54 PM

Unless the en banc Tenth Circuit bails out, this is a cert candidate big time.

Posted by: Bill Otis | Jul 9, 2009 3:53:31 PM

McConnell on the other side of this makes me think I should read the whole thing...

Posted by: anonymous | Jul 9, 2009 3:56:32 PM

Lawyer questions: Is a ruling of ineffective assistance a ruling of legal malpractice per se (already decided by a judge)? Should we add a negligent hiring, negligent assigning, negligent supervision claim against the public defender agency? Should the aggregate of such decision be good evidence for an aggregate lawsuit?

Posted by: Supremacy Claus | Jul 9, 2009 4:52:22 PM

I think every defendant deserves the Dream Team as a minimum of effective counsel, and to satisfy the procedural due process right to a fair hearing.

Posted by: Supremacy Claus | Jul 9, 2009 5:34:48 PM

"As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain."

What is this guy doing, running for Governor? Of course due process does not guarantee a good bargain. The question is does the defendant deserve effective assistance of counsel during the bargaining process. As a matter of policy, I find the suggestion it does not deeply troubling.

In theory, I actually agree that the the right to a fair trial does not encompass the right to plea bargaining. And I could live with that result except for the fact that more than 80% of all cases end with plea bargains. To allow changes in legal practices to effectively eviscerate the 6th amendment is to honor the letter of the constitution and violate it's spirit. That's offensive. "The word and the deed go hand in hand". The dissent is essentially saying that the public defender can screw up all he wants, he can't just screw up when the judge is physically looking over his shoulder. That is simply a bad result for both the defendant and the legal community. To suggest that this is what the founder's meant when they used the word "trial" is bogus.

Posted by: Daniel | Jul 9, 2009 6:17:48 PM

I am counsel for the appellant in this one. I appreciate your input.

Posted by: Barry | Jul 9, 2009 6:53:40 PM

Barry --

Congratulations. This could not have been an easy argument. Whether it survives, we'll just have to wait and see. I have my doubts.

Posted by: Bill Otis | Jul 9, 2009 7:34:09 PM

Thanks, Bill. They actually beat me up pretty good on the exhaustion issue (which was not briefed). J. McConnell worked me over, and N. Gorsuch was my best friend. Just goes to show ya...

Posted by: Barry | Jul 9, 2009 7:48:27 PM

Here is the essence:

"Prior to trial for first-degree murder, an assistant district attorney offered Mr. Williams a ten-year sentence in exchange for a guilty plea to second-degree murder. Mr. Williams wanted to accept the offer, but his attorney, believing that Mr. Williams was innocent, threatened to withdraw from the case if the offer was accepted."

What if he was innocent despite the jury verdict? If so, the ADA tried to extort a guilty plea. Then defense counsel tried to extort a not guilty plea and a trial, and succeeded. The defense was was ineffective, but did the same thing as the ADA: extortion (is there a better word?).

There are clear legal distinctions, of course, like the government's right to offer a plea or not, but the spirit of each, prosecution and defense, seems to be comparable. For example, why offer a plea deal for 10 years when the defendant committed a crime that deserved life? It is unlikely the only reason was budget considerations.

I first and foremost wonder if he was really guilty.

Posted by: George | Jul 9, 2009 8:08:38 PM

Clearly the majority is correct. The defense lawyer here was incompetent. His client wanted to accept the 10 years. That should have been the end of the story. I have ofen had clients protesting their innocence even as they take a plea bargain. Why run the risk of a life sentence without parole. Want to protest your innocnece--fine. That's why we have pleas pusuant to Alford v. North Carolina. "I'm innocent but I'm taking the deal anyway." The laywer here should have got off the case and put someone else on less squeamish who put the interests of his client first instead of hisown ego.

Posted by: Michael R. Levine | Jul 9, 2009 8:27:25 PM

Assume the innocence rate in death penalty verdicts is around 20%. What is the rate of innocence in plea bargains, using the same methodology, DNA validation years later? This failure of the law represents massive lawyer malpractice by the defense, the prosecution, and by the bench. All their self-dealt immunities from client, and from adverse third party liability. This is unethical, unconstitutional, and toxic to the profession.

The 20% rate in the death penalty is really an unknown rate. It comes from the number of vindicated inmates compared to the number of executions a year. No one has tested the 3000 people on death row, nor even any statistically valid small sample of that population.

Posted by: Supremacy Claus | Jul 10, 2009 5:31:42 AM

George --

When the defendant offers to plead guilty, and then (with that offer off the table) the jury finds him guilty, and the appellate court expresses no doubt about his guilt, I think the conclusion that he was in fact guilty has more going for it than a mere guess, offered without any citation to the facts or the record, that he was innocent. What facts give rise to your "wonder" about his guilt?

As to whether the defendant was a victim of "extortion," by either the government or his lawyer: What would you have them do?

The prosecutor believed (as did the court and jury) that he was guilty. It is therefore in the legitimate interest of the prosecutor's client (the taxpaying public) to obtain a conviction without taking the risk at trial, however small it may seem a priori, that the case could be fumbled away, and to obtain that conviction at the least expense. Therefore the prosecutor made the plea offer. Only in a different world is that behavior "extortion."

The defense lawyer might be a dope (I can't tell from what I've seen so far), but it strikes me as the principled thing to do to say that, because you're convinced your client is innocent, you are unwilling to march to the podium to put him away for ten years, and that if that's what the client wants to do, he should find someone else to help him do it.

Again, only in a different world could that be understood to be "extortion." People hire and fire their lawyers all the time.

Plea negoatiations are like other kinds of negotiations. Each side has its strengths and weaknesses. Each tries to maximize the former and finesse the latter. Any deal that gets reached is going to be a compromise, in which neither side got everything it wanted. If plea negotiations are "extortion," every negotiation involving this same dynamic is "extortion."

The difference is that, if the defendant believes he is being "exorted" by what the government is offering, he can tell the government to go to a very warm place, and that he'll see them in court, where they will have to surmount the highest burden of proof known to the law, and are going to have to do so to the satisfaction of all twelve. That's exactly what happens in ten to twelve percent of the cases, so we know it's hardly impossible.

Having been at the business a long time, I can tell you that the defendant's real problem is not the government's supposed bullying, or defense counsel's supposed obstreperousness. The defendant's real problem is the evidence.

Posted by: Bill Otis | Jul 10, 2009 8:13:07 AM

"In our evaluation of that conclusion, we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated."

I don't see how you get around that language. The guy had a fair trial.

Posted by: federalist | Jul 10, 2009 10:01:06 AM

I think there's also an AEDPA issue. Look at the result of the OCCA's decision--defendant got chance at parole. Was that unreasonable? Obviously, how the court got there was problematic, but the result certainly was not.

Posted by: federalist | Jul 10, 2009 10:04:14 AM

The dissent's proposition is that a defendant's right to effective assistance at the plea bargaining stage exists only if he enters a guilty plea, but does not exist if based upon ineffective advice he rejects a plea offer. Absurd, IMO.

I have seen a number of such cases and have gotten them reversed, and have never encountered this tortured logic.

Posted by: John Minock | Jul 10, 2009 11:05:11 AM

How is absurd, John? How do you get around the quoted language in Cronic?

Posted by: federalist | Jul 10, 2009 11:07:46 AM

"The defense lawyer might be a dope (I can't tell from what I've seen so far), but it strikes me as the principled thing to do to say that, because you're convinced your client is innocent, you are unwilling to march to the podium to put him away for ten years, and that if that's what the client wants to do, he should find someone else to help him do it."

I suppose you do actually think that but it blows my mind. Perhaps if this was a white collar criminal case such as Jeffery Skilling I would agree with you. But we are dealing with a poor client who has a public defender and the difference in power relationship between those two situations in that situation is undeniable.

What is a principled thing for an attorney in one situation might be gross incompetence or negligence in another. I don't agree with George's comment that it's "extortion" because that word is too strong. But I think that in pointing out the inherent inequality in power between a poor defendant and a skilled attorney he's correct. And you're unwillingness to acknowledge that reality is sad.

Context does matter.

Posted by: Daniel | Jul 10, 2009 11:24:13 AM

The reliance of the dissent (and federalist) on Cronic is questionable. That case presented a wildly different situation from the one presented here. Invoking the broad policy language of Cronic to mean that the Sixth Amendment’s guarantee of a fair trial process doesn’t include post- or pre-trial representation, places more weight on Cronic than the case can bear.

Federalist focuses on the first sentence of his quote from Cronic, while disregarding the second – Cronic’s actual holding addressed a situation where the alleged deprivation of counsel (due to the failure to grant a continuance) had no effect on anything related to the prosecution. The question here is whether the “trial process” that the Sixth Amendment protects through its guarantee of assistance of counsel during a criminal prosecution is restricted to just the period of time from opening statement to verdict, or more broadly the prosecution from indictment through direct appeal. On that subject, Cronic is silent.

I find the majority’s position on this matter wholly unremarkable. Federal courts routinely apply Strickland in the context of rejected plea offers followed by convictions after trial (the petitioner almost always loses because he can’t meet the standard, but it’s still applied).

Posted by: Anon | Jul 10, 2009 11:50:33 AM

The defense lawyer's (mis)conduct was not before the court. The OCCA had already determined him to have been ineffective. The lone issue was the adequacy of the remedy.

Posted by: Barry | Jul 10, 2009 12:00:20 PM

The reason Cronic holds as it does is because of the factual context -- a trial -- in which it was decided. It should not be read as being limited to that context.

Posted by: Barry | Jul 10, 2009 12:03:10 PM

I do think this case is interesting due to the acknowledged failure of counsel at all levels, the only real controversy being the remedy.

Federalist, do you think that finding would be reversed if this case were taken by SCOTUS? That seems to be the logical conclusion of your argument. That there was no ineffective assistance, either because the attorney doesn't actually owe the client anything during plea negotiations, or because any such defect was cured simply by having a trial.

Posted by: Soronel Haetir | Jul 10, 2009 1:24:49 PM

Daniel --

If you were convinced your client was innocent, would you actively help put him away?

Before a person is a lawyer, he is a human being. Call me naive, but I want to be able to look in the mirror in the morning and tell my kids that I'm proud of what I do.

What's wrong with this as what the lawyer should say to the client in this case: "Look Mr. Client, I know there are risks in going to trial. The ten years isn't a bad deal, as these things go. But you shouldn't have to serve ten minutes, because you're innocent. If you persist in taking the deal, it is your right to do so, but that will make me the midwife of injustice, and that is not what I'm about. So I think you should get another lawyer who can put his heart into doing this your way. I will file the motion to postpone the case for a short time while you replace me, and I'll explain to the judge that I have to go because you and I have an irreconcilable difference about the single most important decision we have to make. I will also give you a list of lawyers, including some right here in the PD's Office, I think would go along with what you want to do, and see that you are able to interview them."

Why would saying that be any kind of breach of the canons of ethics? And wouldn't saying it be better for both the lawyer and the client?

Posted by: Bill Otis | Jul 10, 2009 2:29:55 PM

Guys, if the right of effective assistance of counsel is to guarantee a fair trial right, how can the convict complain (from a constitutional sense) if he gets a fair trial? That's the plain import of the quoted language.

Posted by: federalist | Jul 10, 2009 2:37:01 PM

I agree with Bill. Fortunately for Mr. Williams, that is not an issue in this case (at least not now). Whether we agree with it or not, the fact of counsel's ineffectiveness was conclusively established below. The only remaining issue is the proper remedy.

Posted by: Barry | Jul 10, 2009 3:40:17 PM

Forcing a defendant to trial over his objection is no different than pleading him guilty over his objection. The decision of whether or not to go to trial is the defendant's to make, not the lawyer's. It's blatant ineffective assistance of counsel.

Posted by: anonymous | Jul 10, 2009 4:18:19 PM

Bill ask: "If you were convinced your client was innocent, would you actively help put him away?"

100% yes.

I would see my job in this situation as representing the client's interests not my own. If he believes it's in his interest to go to jail for ten years rather than risk LWOP, that is a sane decision on his part. My agreement or disagreement with that bargain is not relevant. It's not my life at stake.

There is no right to be an attorney. Especially for a public defender, there is no right for him to impose his own beliefs on the case. That's a dereliction of duty. He's getting paid by the public to represent the defendant. A public defender is not getting paid to play out his own moral or ethical dramas in a public setting. If he wants to do that, go become a priest for crying out loud.

Posted by: Daniel | Jul 10, 2009 4:50:12 PM

I think, and the caselaw supports me, that the effective assistance of counsel is there to guarantee a fair trial. Where the defendant gets one--the ineffectiveness did not cause him not to get one--thus, there is no harm in the constitutional sense.

Posted by: federalist | Jul 10, 2009 6:22:43 PM


Posted by: federalist | Jul 10, 2009 6:24:04 PM

The court issued a published order denying the State's petition for rehearing and rehearing en banc on 10/14. Interesting dissent and concurrence.

Posted by: Barry | Oct 16, 2009 4:35:21 PM

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