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May 14, 2013

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

Via this post last month, I noted this interesting commentary appearing in the Houston Law Review’s online edition by Graham Polando, Deputy Prosecuting Attorney in Indiana, concerning the Lafler ruling and the future of plea bargaining. Today I received an e-mail from Darryl Brown telling me that this blog post with Polando's Lafler criticism compelled him "to crank out a four-page response on why he's wrong in every way, including the sentencing angle."  This response is available here at SSRN, and Darryl reports it is forthcoming in the same e-journal.  Darryl also says his piece includes a "key un-scholarly innovation": an offer to donate $100 to prosecutors if any one of them proves Darryl wrong. 

This piece is titled "Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy," and here is its abstract:  

Some prosecutors are dismayed by the U.S. Supreme Court's decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney's incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve.  In four pages, I explain why they should not worry.

Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant's case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain's terms.

May 14, 2013 at 10:25 PM | Permalink


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Lafler stands for such a simple and basic proposition that it's hard to imagine how any fair minded prosecutor would quibble with it, to wit: a criminal defendant has a right to competent representation not only at trials (which only happen rarely these days) but throughout the criminal process, including at sentencing and in the plea bargaining process (which is how almost all cases get resolved. The bar is (correctly) set very high for ineffective assistance claims, so any fear of large numbers of guilty defendants gaming the system with Lafler appeals is just an unreal apparition. Defense counsel who fail to convey a plea offer to a client should be subject to disciplinary charges, just as prosecutors should who flout their Brady obligations.
Professor Stan Adelman

Posted by: Stan Adelman | May 15, 2013 12:57:45 AM

I have a technical question: why is this case referred to as Lafler instead of Cooper? I thought the rule was that if the first name in a case was a public official then the second name should be used.

Posted by: curious | May 15, 2013 8:26:58 AM

Here's the problem. Brown's article makes the assumption that defendants will accurately assess their risks of success. Defendants don't do that.

While I agree that few IAC in plea bargaining claims will succeed in a full hearing on the merits, success can be obtained in another simple way. A claim of IAC in plea bargaining and the attendant cost of litigating that claim is another bargaining chip in the defendant's effort to negotiate further the charges or sentence. The Government's need and desire to focus trial attorneys on cases not resolved will incentize the settling of cases with claims of IAC in plea bargaining, especially with the total unknown of what prior counsel said or did and especially when prior counsel is unavailable (which happens with increasing frequency) due to habeas being litigated, years and even decades after trial.

I have personally seen that some defendants hire trial counsel on the cheap, who are walking IAC claims, but we cannot do a single thing about it because of the Sixth Amendment right to counsel of choice and now after conviction, their qualified and competent public defender is well positioned to exploit that to improve the outcome even if there is not actual IAC in that particular case. It may not happen by design (very often) as noted by Brown in the article, but it will happen. And make no mistake, just the claim will improve post trial outcomes for some defendants because of the cost of litigation and the need to apply resources elsewhere.

Finally, I would note that if Brown was really so sure that this would not be a problem, put up more than $100. It is almost as if Brown thinks that within 2 years there might be enough claims where he would have to pay real money. If he is so sure that it is a prosecutorial fantasy, how about $10,000. After all, he doesn't think he'll have to pay anyway, and certainly not twice.

Posted by: David | May 15, 2013 9:51:02 AM

I would note that Brown's offer of $100 is only to Indiana prosecutors within a two year window. Maybe in Indiana he can claim "Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy." I work in California, not Indiana; things appear to be quite different here.

Posted by: David | May 15, 2013 9:56:40 AM

Here's where I get confused: plea bargains that remove or alter the charges. If the prosecutor's duty is the protection of society and the enforcement of laws, shouldn't the charges filed be the same in both bargain and trial with the only difference being the punishment sought at sentencing by the government?

Posted by: NickS | May 15, 2013 12:45:34 PM

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