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March 21, 2012

In 5-4 split, Justice Kennedy give defendants right to counsel wins in Lafler and Frye

I am on the road and thus forced to phone-blog to report today's big SCOTUS news: two wins for defendants in the state cases involving claims of ineffective assistance of counsel during plea bargaining. Links and commentary will follow late tonight once I get a chance to see the opinions.

UPDATE: A great colleague sent me an email to make sure I realized these cases were, in her words, HUGE!

STILL MORE: Now back at a full-functioning computer, I can here now link to the SCOTUSblog summary of these rulings (together with links to the opinions):

Justice Kennedy (the author of four of the Court’s seven opinions this week) announced the first two opinions of the day.  In the first opinion, Missouri v. Frye, the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

In the second opinion of the day regarding ineffective assistance of counsel at the plea bargain stage, Lafler v. Cooperthe Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

March 21, 2012 at 10:36 AM | Permalink


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Who knew that it was unreasonable to conclude that providing a fair trial does not violate a constitutional right not there for its own sake but to protect a fair trial?

Posted by: federalist | Mar 21, 2012 11:18:09 AM

Frye is going to lose when he goes back. He actually got handed a loss because the state court gave him relief without asking the prejudice question.

In his discussion of injustice, Scalia improperly ignores the fact that the offer in Laffler was made to begin with. Before trial, the prosecutor concluded that the lesser-sentence was just for that particular case.

When I was a prosecutor we always put the terms of any rejected plea offer on the table before beginning a trial and defense counsel would assert they had advised the client. That would solve the Frye problem. The Laffler problem strikes me as pretty uniquely bad advice (i.e. the shoot below the waist theory of attempted murder). What good defense counsel would even offer such a bold prediction of results. In an eyewitness case when advising clients I usually went with the "There is one person in this room who knows where you were and what you were doing that night. If you did it, you're probably going to get convicted. What do you want to do?"

Posted by: Robert Barnhart | Mar 21, 2012 11:38:20 AM

Scalia doesn't ignore anything. Lafler is a joke of a decision. The decision reeks of lawlessness.

Posted by: federalist | Mar 21, 2012 11:55:00 AM

I was watching Doubt last night. federalist should have a bit more of it, especially when challenging a former prosecutor on how things work in plea offers.

Posted by: Joe | Mar 21, 2012 11:58:24 AM

Good blog!

Posted by: Bankruptcy attorneys mesa | Mar 21, 2012 12:07:03 PM

I knew that it was unreasonable to conclude that failing to provide effective assistance during a critical state of criminal proceedings does not violate a constitutional right there to protect fairness at all critical stages of criminal proceedings.

Posted by: anon | Mar 21, 2012 12:09:12 PM

Federalist, how do you address the issue that 90+% of cases are resolved by plea bargain? In my experience, the most important work done by defense counsel is at the plea bargaining stage? Do you dispute that fact or just think its not relevant?

I don't think Federalist was challenging my understanding of how plea offers work. I just think he thinks there is no constitutional import to them or at least that import is limited to due process violation of prosecutors unfairly refusing to comply with said bargains.

Posted by: Robert Barnhart | Mar 21, 2012 12:47:33 PM

Thanks Mr. Barnhart. I didn't take from you that you thought it was a "joke of a decision" and part of that seems to arise -- as a whole -- you understanding how pleas "work" here and in general.

Posted by: Joe | Mar 21, 2012 2:25:36 PM

Mr. Barnhart--I think it entirely irrelevant. By the way, if there's one plea bargain out of a million, if Frye is dictated by the Constitution, then it should engage. The result in Frye doesn't somehow become constitutional simply because there are a lot of plea negotiations.

Posted by: federalist | Mar 21, 2012 9:23:53 PM

ahh fed you refuse to admit that it's now the exict opposite. we now have a million plea bargain for every ONE trial. Sorry once the state decided to move the court sytem away from what the constution required....A TRIAL OF A JURY OF YOUR PEERS!

Sorry the other stuff moved too. You know fair dealing, lawyers all the other protections required by the constutuion. The real pity is it's taken the courts what FIFTY YEARS to realize it!

Posted by: rodsmith | Mar 21, 2012 11:23:05 PM

rodsmith's comment is curious. The defendant wasn't denied a trial s/he wanted. Guilty pleas are not unconstitutional. Police and prosecutions have lots of discretion and reality dictates that with that comes some power over the people they may or may not arrest/prosecute or arrest/prosecute as strongly.

Scalia's dissent -- in a portion only joined by Thomas -- holier than thou like was upset at the majority for making plea bargains not embarrassing but accepted practices with standards. Plea bargains would be there either way. Trying to avoid it were tried in some places w/o much success. The majority realized that once you have them, you need standards.

Posted by: Joe | Mar 22, 2012 3:04:53 PM

i think you misunderstood me joe!

fed is saying becasue plea bargain's are not mentinoed in the constution you have no right to anything in them at the time same we have moved from the majority of criminal convicitons being the reuslt of a trial in front of a consutionaly requireed jury of your peers...to 80-95% of all criminal convictions being done via plea bargain.

So what i'm saying is that once the sytem decided to reverse itself then all those protections you got during a trial...should now apply in the new STANDARD! a plea bargain!.

Now if the state would like to hire 10,000 new judges and 100,000 new lawyers and build 1,000 new court houses...then we can go back to REAL trials in front of a REAL JUDGE and JURY! and at that point....we can stop worrying about fair plea bargains!

Posted by: rodsmith | Mar 22, 2012 7:30:19 PM

rodsmith, I responded to what you said:

"Sorry once the state decided to move the court sytem away from what the constution required....A TRIAL OF A JURY OF YOUR PEERS!"

The Constitution also allows the defendant to waive a trial and it is in no way "novel" for them to do so. The right to trial is still there. In fact, one or both of the defendants here were upset that their lawyers didn't better advise them to avoid said trial in this very case.

It is perverse to force trials in every case when neither side wants them. In a vast amount of cases, the evidence is clear and the defendant willingly pleas guilty. Back in the day, cases were dealt with in quick and summary fashion, lots of cases dealt with in a day. We would not deem many of these "real" under the current complicated trials we have today.

Posted by: Joe | Mar 23, 2012 10:46:33 PM

ahh this is true!

"The Constitution also allows the defendant to waive a trial and it is in no way "novel" for them to do so."

BUT the devil is in the details. What was used in a very limited number has become the primary means of completing a criminal investigation.

All i'm saying is the constuiton demands the accused be given a trial by a jury of their peers and follow up laws have also required the TRIAL BE FAIR and that the accused be given competnet councel. The thing is it's easy to say when you go to trial you get all this shit! when you KNOW 99% will NEVER SEE IT

in the trade world that's what's called BAIT AND SWITCH!

So that is why i say all those same things we require when going to trial NOW need to be applied to the other 95% of all criminal cases! you know the REAL JUSTICE SYTEM!

Posted by: rodsmith | Mar 24, 2012 3:18:41 PM

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