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March 22, 2012

Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon?

The question in the title of this post is prompted by a quote in Adam Liptak's coverage of the big Sixth Amendment rulings handed down by the Supreme Court yesterday in this front-page New York Times article.  Here are snippets:

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers....

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.  “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

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March 22, 2012 at 09:40 AM | Permalink


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Doug, yes Lafler is enormous, as it should be.

The two most significant shifts in criminal practice since I started in 1973 are these, in my opinion.

First, state cases are now more like federal cases, in which investigation of cases is sophisticated enough so that the question of who did something is not a very common issue. Most cases are resolved without a trial. I used to try a dozen cases a year and now it may be two or three. Plea negotiations is now an extremely important part of criminal practice. (similar to mediation in civil cases)

Second, and you'll like this, sentencing hearings have more practical impact than guilt determinations. And they are more complex and more prone to lawyers who have no idea what they are doing botching something up with huge consequences. There has been an explosion in post-conviction litigation because prisoners get to prison and learn from other, very smart, inmates that their lawyer messed up.

North Carolina's sentencing system is so complex that I don't pretend to suggest that I understand it all, and this is all I do. It was created by a group of folks who don't try cases and didn't understand the power that was being bestowed on prosecutors by going to grid sentencing.

Lafler is huge and I have a postconviction case I will now file because I was waiting for Lafler. The defendant was charged with indecent liberties and had a five year plea offer. Def asked his lawyer can the state charge me with a more serious offense if I turn down the offer? Lawyer, oblivious to Bordenkircher, says no they can't. Def turns down plea. Of course, state charges the more serious offense, gets a conviction, and def gets 30 years in prison.


Posted by: bruce cunningham | Mar 22, 2012 10:05:14 AM

These really aren't all that revolutionary--other than, of course, the utter lawlessness of them, but we've been seeing that for a while. This is how things have rolled for quite some time in most courts.

Posted by: federalist | Mar 22, 2012 10:15:22 AM

It is interesting to note that, given the idea that this is revolutionary, the Court held that the Michigan Court of Appeals unreasonably applied existing SCOTUS precedent. What an utter joke that is. Unfortunately, it is a cruel joke played on victims and society.

Posted by: federalist | Mar 22, 2012 10:19:50 AM

Saying so certainly helps tee up the argument that they are watershed under Teague and thus fully retroactive on collateral review....

Posted by: anon | Mar 22, 2012 10:24:44 AM

Federalist, I think you are overstating the joke that is played on victims and society. Recall, the prosecutor, at one point, with full knowledge, presumably, of the facts and history that the plea range offered was appropriate.

The question of constitutional interpretation here is between expectation and textual originalism. Even Justice Scalia is not an expectation originalist and his lack of historical discussion in either dissent demonstrates that. The right to counsel exists not only to protect the right to a fair trial, but to guarantee assistance to the accused pre and post determination of guilt or innocence.

The best system would be for the state's to require plea offers be made in writing and stated on the record. Additionally, lawyers who give advice like Lafler's should be disciplined. To return to Ken's analogy about the cars and bad expert advice. I might not get the car at the price I wanted but I could certainly sue the expert for giving me bad advice. The problem here is that the dollar cost is in prison time and no one thinks the lawyer should have to pay that cost.

Posted by: Robert Barnhart | Mar 22, 2012 11:05:26 AM

Mr. Barnhart, I think that your arguments are policy-driven and divorced from the Constitution. First off, as a constitutional matter, who really cares what the prosecutor thinks is appropriate? Prosecutors have been known to have been wrong, and why is their assessment of a particular case relevant at all? Second, plea deals are agreed to for reasons outside of justice--maybe there are proof issues; maybe a witness doesn't want to relive the horror of their suffering; maybe jury nullification is a real possibility in a particular case; maybe the prosecutor has a vacation planned.

With respect to originalism etc., I think the reason that Scalia didn't get into a huge discussion about that is that under an originalist understanding, the guy wasn't entitled to paid-for counsel in the first place. The right to effective counsel is judge-made to start with.

At the end of the day, Cronic accurately stated the law: the right to counsel exists to protect the right to a fair trial. Cooper got that. Yet, the Court concludes that it was unreasonable to conclude that was enough.

From a policy/theoretical perspective, Frye can be justified (although, I think in practice it's very problematic). However, under our system of justice, the Constitution sets the parameters. The right to effective counsel, judge-made law that, at bottom is concerned with the right to a fair trial and the fairness of substitutes therefor (i.e., guilty pleas). The defendant got a fair trial. The issue is not whether he was harmed--he was. The issue is whether this is a harm that the Constitution is concerned about, and the answer, clearly, before yesterday, was no.

Posted by: federalist | Mar 22, 2012 11:34:22 AM


As a question of constitutional interpretation are you a strict originalist a la Thomas or a more moderate originalist like Scalia?

If you are strict, these are all easy questions because you literally only have the right to have a lawyer present that has been paid for. If you can't afford a lawyer, too bad. Of course, originally you had the right to jury nullification, to argue that opportunity, and perhaps to receive an instruction on that choice.

I would submit such strict originalism is wrong as a matter of policy and as a matter of our history of common law judging. The idea that judges might expand the law is not new and would have been understood at the time of the founding. Some, like Randy Barnett, might argue that's the whole point of the Ninth Amendment.

In that sense, my arguments are based on the constitution and prior precedent.

Posted by: Robert Barnhart | Mar 22, 2012 11:58:08 AM

Contrary to what federalist stated on March 22nd at 10:19, the Court did not hold that "Michigan Court of Appeals unreasonably applied existing SCOTUS precedent." The Court in Lafler indicated that the Michigan Court of Appeals did not apply the correct standard, Strickland, in assessing the claim. See pp. 14-15 of the slip opinion. Applying the wrong standard ends the question as to whether there can be any AEDPA deference. This renders the state court decision "contrary to" Supreme Court precedent. See, Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)("A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.")
An "unreasonable" application of the Court's precedent involves a different question once the correct standard has been applied. See, Willisam 528 U.S. at 407. You can see why federalist will not use his real name when he goes around making incorrect statements like the following that claims the rule is "a joke": "It is interesting to note that, given the idea that this is revolutionary, the Court held that the Michigan Court of Appeals unreasonably applied existing SCOTUS precedent. What an utter joke that is."

Posted by: Tim Holloway | Mar 22, 2012 1:59:22 PM

Robert Barnhart,

I won't attempt to speak for Federalist, but personally I am far more often in agreement with Thomas than Scalia when either is alone in dissent. And yes, I believe both that the sixth amendment protects only the right to paid for counsel and that a defendant has the positive right to argue for nullification, even on the basis of something like "We're all better off now that he's dead".

As a matter of policy I think Gideon was a tremendously good move, and without it something else would have had to give, but from a matter of constitutionalism I believe it was a horrible decision.

Posted by: Soronel Haetir | Mar 22, 2012 2:07:58 PM

Tim, that's the weakest part of the opinion, by far. The issue is not, generally speaking, whether the Michigan Court of Appeals' reasoning can be criticized. The issue, as made clear from other AEDPA cases, is whether the judgment that Cooper was not prejudiced was reasonable. And quite clearly it was. It's pretty tough to establish, in the first place, that the on the merits holding in Frye and Lafler was clearly established since everyone seems to agree that this is a big time expansion of the law. There is, at a minimum, a wide gulf between Lafler and other AEDPA cases. And Strickland, it seems clear, does not come close to foretelling this result.

Posted by: federalist | Mar 22, 2012 2:20:29 PM

Laffler is potentially revolutionary in that the State is now entirely at the mercy of defense counsel when it offers a plea.

Prior to Laffler, a competent prosecutor could try a clean case and present sufficiently solid evidence that any minor mistake by the trial judge would be a harmless error. Equally, by presenting an overwhelming case at trial, the prosecutor could try to make a solid case that any incompetence by trial counsel would not be prejudicial.

Under Laffler, however, that overwhelming case which defeats at trial ineffectiveness now helps prove that counsel was incompetent in advising his client to go to trial. I think most prosecutors could have lived with ineffictiveness limited to failure to advise -- that a prosecutor can cure on the record prior to a plea expiring, but including misdavising is open season for attorneys opting to fall on the sword for their client which is not as infrequent as the Kennedy opinion assumes.

Posted by: TMM | Mar 22, 2012 2:22:38 PM

Federalist, you don't even understand what they said in that part of the opinion yet you call it a joke. Review became essentially de novo once they applied the wrong standard --- whether or not (in your words) Strickland did "not come close to foretelling this result." This is based on the language of the statute, not how you feel things should be analyzed.

Posted by: Tim Holloway | Mar 22, 2012 2:34:34 PM

federalist asks: "[W]hy is [a prosecutor's]assessment of a particular case relevant at all?"

Wow. I'm a defense lawyer, and even I think that the prosecutor's assessment of the case s/he is prosecuting is quite relevant.

If federalist really doesn't know the answer to his own question, it's hard to understand how he managed to graduate from law school (or college, for that matter).

Posted by: bob | Mar 22, 2012 2:49:53 PM

Federalist wants to know why it's relevant as a constitutional matter, and he is of the opinion it isn't. I agree. I was saying that the result of Lafler getting his original plea isn't as out-of-bounds as he suggested given that it was, at one point, offered by a prosecutor. I suspect Federalist might disagree and say that, given the facts, society dodged a bullet when this Defendant originally got bad advice on an overly generous offer. C'est la vie. But, Federalist isn't being stupid - he just has a different opinion.

Posted by: Robert Barnhart | Mar 22, 2012 2:53:59 PM

"Review became essentially de novo once they applied the wrong standard . . . ."

Yep, that's what they did. However, funny how you don't find "de novo" anywhere in the majority opinion, and the flyspecking of the language of the state court opinion is, to say the least, odd, given the clear rules about AEDPA deference--particularly since Strickland doesn't really set forth the rule that governs this particular issue.

This is opinion-grading, supposedly a verboten practice, to deprive the state of a judgment it earned.

Posted by: federalist | Mar 22, 2012 3:04:01 PM

@Robert Barnhart,

Thanks for the clarification of what federalist was trying to say. He's so quick to call those who have a different opinion than his simply dumb, it's sometimes hard to follow what he's saying.

Maybe you can help me with this as well. federalist seems to be a strict originalist/textualist. If that's the case, what is his theory for limiting the text of the 6th Amendment ("In all criminal prosecutions, the accused shall enjoy the right to the Assistance of Counsel for his defence.") so that "defence" is limited to defense at trial, not defense against "the criminal prosecution" in general?

P.S. Thanks again for the clarification; I do appreciate it.

Posted by: bob | Mar 22, 2012 3:24:32 PM

I think the AEDPA analysis was completely correct. The Court isn't saying that its holding on prejudice in the plea-bargain context was, prior to the opinion, clearly established law. The Court was saying that when you look at what the Michigan court actually did, the Michigan court's decision was contrary to or an unreasonable application of clearly established law. And when a habeas petitioner can make that showing, which Cooper did here, the ultimate determination on the merits in federal court is de novo.

Look at what the Michigan court actually said. After reciting the Strickland standard and Cooper's argument, it said: "However, the record shows that defendant knowingly and intelligently rejected two plea offers and chose to go to trial. The record fails to support defendant’s contentions that defense counsel’s representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea bargain for defendant." The first sentence there was that the defendant "knowingly and intelligently rejected two plea offers." In other words, the court was saying that the attorney didn't provide Cooper bad advice that induced him to reject the plea bargains; Cooper rejected the plea bargains knowingly and intelligently. That is a "deficient performance" argument, and the state conceded (somewhat weirdly) that there was deficient performance in federal habeas. That is a completely different theory than Michigan's theory on federal habeas, which is that there is no prejudice when you have a fair trial.

The next sentence says, in relevant part: "The record fails to support defendant’s contentions that defense counsel’s representation was ineffective because . . . he did not obtain a more favorable plea bargain for defendant." It is hard to understand what this means -- "more favorable plea bargain" presupposes that Cooper got a plea bargain, which he did not. I think the court is rejecting the following argument that Cooper was supposedly making: the lawyer was ineffective because he did not get the prosecutor to give a BETTER plea offer. The problem is, that is not Cooper's actual argument. Cooper argued that his lawyer told him something that was legally incorrect, which induced him to reject the prosecutor's actual offer. The Michigan court just screwed up and didn't understand what Cooper was saying.

So the court doesn't get AEDPA deference. There is simply no ruling on prejudice that would entitle the court to deference on that ruling. The first sentence addresses "deficient performance" which is conceded; the second sentence is either incoherent or a response to the wrong argument. This is neither "opinion-grading" nor "flyspecking." It is simply an honest reading of a state court opinion.

To the extent your view is that the Court should have deferred to a hypothetical prejudice ruling distinct from the reasoning the Michigan Court of Appeal actually used, that is simply (dare I say it) contrary to clearly established law. See, e.g., Porter v. McCollum ("Because the state court did not decide whether Porter's counsel was deficient, we review this element of Porter's Strickland claim de novo.").

Posted by: Commenter | Mar 22, 2012 3:32:13 PM

Reading the Court's opinion again, I see it diverges a bit from mine. The Court doesn't characterize the "knowingly and intelligently" bit as an analysis of deficient performance. Rather, the Court characterizes the "knowingly and intelligently" bit as the application of the incorrect standard under Strickland. (Justice Kennedy is clearly correct that there is a distinction between whether one receives good advice during plea bargaining and whether the plea bargain is "knowing and intelligent." One is a Sixth Amendment question, one is a Fifth Amendment question.) Well, I prefer my analysis to Justice Kennedy's, but either way, we arrive at the same place: There's no "prejudice" ruling from the Michigan court to which deference is warranted, which opens the door to a de novo review by the federal courts. I think this is totally consistent with how AEDPA is supposed to work.

Posted by: Commenter | Mar 22, 2012 3:39:39 PM

After reading the Mich COA opinion, I am not sure that it was correct to say they identified the wrong standard. The Mich COA referenced cases that are essentially the state equivalent of Strickland and which rely on Strickland. See Pickens cited in the Mich COA opinion. The Mich COA then goes on to mention a voluntary and knowing decision. I am not sure that it identified the wrong standard by using these words in t this context given the following statement from Hill v. Lockhart. However, it seems difficult to say that reasonable jurist could debate whether the Strickland standard was not met (i.e., the "unreasonable application" prong of the AEDPA statute) when the attorney advised that the defendant could not be convicted for shooting below the victim's waistline (which is what I understand was the reason for rejecting the plea).

This is from Hill v. Lockhart, 474 US 52, 56-57 (1985)

Where, as here, a defendant is represented by counsel during the plea process and enters his plea depends on whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U. S. 759, 771 (1970). As we explained in Tollett v. Henderson, 411 U. S. 258 (1973), a defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Id., at 267.

Hill goes on to mention a test that does not use the words voluntary or intelligent, but it seems they already indicated this is usually or always relevant or necessary for withdrawal of the plea?

This is from Hill at pg 58-59

We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, and McMann v. Richardson, supra. The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.[*]

Posted by: Tim Holloway | Mar 22, 2012 4:34:22 PM

As you know, Tim, there is a significant difference between a counseled guilty plea and the rejection thereof--or at least until yesterday.

Posted by: federalist | Mar 22, 2012 4:52:11 PM

I have not fully digested this thread, so I'm going to limit my remarks to saying that TMM makes an excellent point.

If I were back in the US Attorney's Office, I doubt I would ever again offer a plea, since whatever I would offer would then effectively become the sentencing ceiling when -- after a fair and reliable trial like Lafler got -- the defendant does this cute post-facto game with his fall-on-the-sword counsel about how he got lousy advice.

When the defendant can get the benefit of the bargain without ever having to live with the part he agreed to, why would any sane prosecutor offer a bargain to begin with?

Posted by: Bill Otis | Mar 22, 2012 4:53:29 PM


Since it looks like Mr. Barnhart is no longer interpreting for you, I'll ask directly. How does your theory that a defendant's 6th Amendment right to the assistance of counsel is a trial-only right square with the text of the 6th Amendment? Or doesn't it?

Posted by: sherman | Mar 22, 2012 6:46:28 PM

I don't recall saying that. The right to effective counsel, as stated in Cronic, is there not for its own sake, but to secure a fair trial. My point is that if the guy gets what Strickland is there to protect, i.e., a fair trial, then there is no constitutional prejudice.

Posted by: federalist | Mar 22, 2012 8:28:36 PM


I didn't like plea bargains as a prosecutor or defense attorney. One word - boring. But, your position is untenable in state court given the volume of cases. Also, not that many counsel are fall on the sword types. Good luck getting any appointment work after you sign an affidavit saying you give bad advice. If I were a judge you would never be appointed in my courtroom again and you would be referred to disciplinary counsel.

I think these rights are appropriate and important, but I agree everything should be done to make sure it is not a shell game. That way people who get completely out of bounds advice like Lafler can be separated from your average buyer's remorse Defendant.

Posted by: Robert Barnhart | Mar 22, 2012 11:09:01 PM

I wasn't translating for federalist. I'm just tired of people calling names. I think federalist is intemperate sometimes with his comments about federal judges, but that's his call to make.

Posted by: Robert Barnhart | Mar 22, 2012 11:11:15 PM

Gideon was guilty, with $23 in quarters near a cigarette machine that had been broken into. He got away with his crime thanks to an expensive criminal defense lawyer he chose over the ACLU loser offered to him. But the real heist took place after the Supreme Court generated $billions in government make work jobs for lawyers representing guilty criminals.

If you are asking, are these cases as big as Gideon, the answer is yes, if not bigger, with $tens of billions generated in government make work jobs for lawyers representing guilty criminals, and pointlessly so. The lawyer steals tax money, and the taxpayer gets nothing back, except for perhaps the early release of a vicious predator back into his neighborhood.

Posted by: Supremacy Claus | Mar 23, 2012 12:21:06 AM

I am not overly surprised.
Fiat Justitia Ruat Caelum

287 U.S. 45, 69
Powell v. Alabama
Argued: October 10, 1932 --- Decided: November 7, 1932

Sutherland, J
Even the intelligent and educated layman has small and sometimes no skill in the science of law. … He requires the guiding hand of counsel at every step in the proceedings against him.

Dissent excerpt:
MR. JUSTICE BUTLER, dissenting.
The record wholly fails to reveal that petitioners have been deprived of any right guaranteed by the Federal Constitution, and I am of opinion that the judgment should be affirmed.
MR. JUSTICE McREYNOLDS concurs in this opinion.

Posted by: Docile Jim Brady ¦ Nemo Me Impune Lacessit | Mar 23, 2012 5:51:06 AM

Mr. Barnhart --

I agree that my proposal will not work office-wide in a busy office, at least as things stand now. But it would work for any one individual prosecutor. For myself, I simply would not -- in my professional life or otherwise -- enter into an agreement I knew I would have to keep, but also knew that the other side could slip out of if they were willing to be slick enough down the road.

Posted by: Bill Otis | Mar 23, 2012 11:51:48 AM


Thanks for answering. I was just curious whether you thought the Cronic Court's statement that the 6th Amendment assistance-of-counsel right is there to protect the right to a fair trial and nothing else was based on the actual text of the 6th Amendment. If I'm still understanding your position correctly, you agree that it is not.

Posted by: sherman | Mar 23, 2012 12:39:09 PM

@Robert Barnhart

I just wanted to say that I appreciate your attempts at restoring some measure of civility to the comments section of this blog. I'll say this to you and anyone else who cares about civility, I think it would also help substantially if those who frequently call others out for incivility would be consistent in doing so.

E.g., if it is impolite to call someone with whom one disagrees "dumb" (whether it be a judge, a law professor or another commentator), it is impolite to do so whether the one doing the calling out agrees or disagrees with the name-caller's underlying position. If it is cowardly to "spit from behind the curtain" when calling people names, it is cowardly to do so whether the one calling out cowards agrees or disagrees with the coward's underlying position. The selectivity with which some call others out for incivility, cowardice, etc. just adds to the incivility; it doesn't decrease it.

Just a thought.

Posted by: sherman | Mar 23, 2012 12:55:36 PM

sherman --

"If it is cowardly to 'spit from behind the curtain' when calling people names,..."

Is it your view that it is, in fact, cowardly anonymously to call other commenters names?

Posted by: Bill Otis | Mar 23, 2012 2:09:01 PM

I do not understand why these decisions are viewed as revolutionary. Hill v Lockhart was decided in 1985 and held that bad advice to accept a plea could be IAC. Every federal circuit since then interpreted Hill to apply to the converse, where bad advice led to rejection of an offer and worse consequences after trial.

Granted the USSC had never said so, but given that most other courts had, where is the revolution? I see no way the court could have said otherwise after Padilla.

Posted by: John Minock | Mar 23, 2012 2:53:57 PM

Since Missouri v. Frye did not arrive at the Supreme Court via a federal habeas petition, this former prosecutor is wondering why some folks have invoked the AEDPA in their comments here.

Posted by: PortiaOH | Mar 29, 2012 10:38:51 AM

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