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June 2, 2013

"Monitoring the Plea Process"

The title of this post is the title of this notable new paper by Susan Klein now avaiable via SSRN. Here is the abstract:

Gideon versus Wainwright heralded a new age in American criminal prosecutions.  Indigent blacks in the South would have the same opportunity to fight felony criminal charges and receive the same sentencing discounts of favorable guilty pleas as rich white northerners, and the innocent would be accurately separated by adversarial testing from the guilty. Yet fifty years later, indigent defendants (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty.  Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced.  Some blame falls on legislators for failing to adequately fund defense counsel.  Our criminal justice evolved from an adversarial system to what Judge Lynch calls, "a defacto administrative regime". The criminal justice system is the plea bargaining system.

In this essay, the author posits that last term's Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system.  The defense bar cannot buck a system stacked so heavily against them.  Large-scale structural reform such as legislation or proper funding for defense is equally unlikely.  Plea bargaining has failed.

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences.  A second proposal is for the Department of Justice and local District Attorneys' Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures.  Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

June 2, 2013 at 08:34 AM | Permalink


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We shall soon hear more from the U.S. Supreme Court about ineffective assistance of counsel during plea bargaining. The Supreme Court granted Cert. in Burt v. Titlow, No. 12-414 (U.S. 2/25/13), from the Sixth Circuit, Titlow v. Burt, 680 F.3d 577, 592-93 (6th Cir. 2012), but the case won't be heard until the Fall term. The issue (on which there is a Circuit split) is whether a habeas corpus movant must offer any evidence, besides his own word, that he would have accepted the proffered plea bargain if he had been properly advised of the sentencing exposure he was facing if he went to trial.

Lexington, Ky. attorney Bill Swinford and I have recently obtained a Certificate of Appealability on ineffective assistance of counsel during plea bargaining from Chief District Judge Karen Caldwell in the Eastern District of Kentucky in "Ali H. Sawaf v. United States", Crim. No. 6:01-047-KKC (Civil No. 6:09-7104-KKC)(Doc. #220, 5/22/13). Sawaf was a script doctor, who turned down a 41 month plea bargain offer from the Government, and was shocked to learn following trial that his U.S. Sentencing Guidelines were 235 to 293 months (with a 240 month statutory cap). Dr. Sawaf's court-appointed (CJA) defense lawyer was only 3 years out of law school and had never previously handled a criminal case before. He failed to advise Dr. Sawaf at all concerning the potentially applicable sentencing guidelines during plea bargaining, because he had not yet purchased a copy of the Guidelines Manuel. On 3 occasions, Judge Caldwell sentenced Dr. Sawaf to the statutory maximum sentence of 20 years. For unique reasons, Dr. Sawaf had 3 direct appeals of his convictions and sentence. Dr. Sawaf's 2255 Motion was filed in November 2009, and took about 3 1/2 years for Judge Caldwell to rule upon, following an August 2012 evidentiary hearing on this issue. Judge Caldwell found that Dr. Sawaf was ineffective as counsel (the first prong of the Strickland test),but Dr. Sawaf was not prejudiced, because he testified at his trial and has continued to insist since then that he is actually innocent of the narcotics distribution charges he was convicted of committing. Thus, Judge Caldwell has reasoned, She never could have accepted a guilty plea from Sawaf, because he would not honestly have acknowledged factual, actual guilt at a Rule 11 hearing. Judge Caldwell ignores precedent that provides that where there is a large disparity between between the plea bargain sentence offered (41 months), and the sentence ultimately imposed following trial (240 months), the Sixth Circuit presumes prejudice to the defendant. Cf., "U.S. v. Morris", 470 F.3d 596, 602-03 (6th Circuit 2006) and "Griffin v. U.S.", 330 F.3d 733, 737-38 (6th Cir. 2003). Further, Sixth Circuit precedent provides that a District Court may, as a habeas corpus remedy, order the Government to accept an Alford plea or a plea of nolo contendere [Rule 11(b)]. Cf., "Leatherman v. Palmer", 583 F.Supp.2d 849, 852-53 (W.D. Mich. 2008), grant of habeas corpus affirmed, 387 F. App'x. 533 (6th cir. 2010); "Guerrero v. U.S.", 383 F. 3d 409, 418-19 (6th Cir. 2004). Dr. Sawaf is now 71 years old and has already served more than 12 years of his 20 year sentence. He has already served more than 3 times as long as the 41 month long plea bargain offer he turned down without having been advised by defense counsel that he was facing U. S. Sentencing Guidelines of 235 to 293 months if he went to trial and was convicted.

Posted by: Jim Gormley | Jun 3, 2013 10:09:44 PM

I suggest that a county bar association establish a plan whereby competent criminal defense counsel volunteer to join a pool of attorneys who will interview a defendant who has a public defender and review his file. Thereafter they will meet with defense public defender and provide some advice on defense. They will take on select cases where the defendant is requesting new counsel and they agree to volunteer. One case a year.

Posted by: Liberty1st | Jun 5, 2013 1:08:40 AM

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