Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- we would not expect orders granting certiorari today.

Aaron Tang .

Posted Tue, November 1st, 2011 8:19 am

Ineffective assistance of counsel – Lafler and Frye

Today in the Community we are discussing Lafler v. Cooper and Missouri v. Frye, a pair of cases raising issues about plea offers and the ineffective assistance of counsel in which the Court heard oral argument yesterday.  In both cases, the respondents received deficient advice from their trial counsel.  In Lafler, the attorney mistakenly told the defendant that the state could not establish a necessary element of its case – intent to murder – because he had shot the victim below her waist, the state could not establish a necessary element of its case (intent to murder); based on that advice, the defendant rejected a guilty plea, was ultimately convicted at trial, and was eventually sentenced to a much longer prison term.  In Frye, the defendant’s counsel simply failed to inform him that a plea bargain had been offered at all, allegedly leading him to enter a guilty plea on terms far less favorable than he would have received had he agreed to the state’s offer.  In each case, the Court is now considering whether the defendant-respondents can seek relief on the ground that their attorneys were constitutionally ineffective and, if so, what remedies are available to them.

We want to hear your thoughts on the two cases below.


  • Aaron Tang – 0 Promoted Comments

    What is your view of the merits? Are the defendants right, or are the states correct that the defendants received what the Constitution guarantees because they were convicted at a fair trial?

    • Tim Baughman – 1 Promoted Comment

      As the Chief of Appeals for the county that obtained the conviction, and litigated it successfully in the state appellate courts—and also as one who filed an amicus brief in support of the Warden—it is not surprising that I believe the Court should reverse the Sixth Circuit’s decision in Lafler v. Cooper. First, the right protected by the Sixth Amendment right to counsel is the right to a fair trial (including its waiver by plea), and defendant had a fair trial. And it is impossible to recreate history and put the parties back in the position they were in before trial. Before trial, the prosecution could withdraw its plea offer even on a whim; now, because counsel arguably did not perform well during plea negotiations, the prosecution is to be put in a position where the conviction it obtained is wiped out, and it must make the same plea offer as made before the successful trial, and now cannot withdraw the offer? That makes no sense. Nor does some “presumption of vindictiveness” which must be overcome if the prosecutor wishes to make a more “severe” offer; it is both unfair, and, in any event, if properly viewed, would always be overcome by the fact that the prosecutor went to trial successfully and thus knows that a conviction at trial is a realistic possibility. And if the remedy is not to require the prosecution to re-offer the same plea agreement, an offer it now cannot withdraw, but to allow a new trial, that makes no sense, as the defendant has already had a fair trial, and the prosecution may have to proceed to trial with a weaker case, given the passage of time (likely a fairly substantial period). No point is served by requiring a second fair trial.

      But given existing case decisions, the State has an uphill battle—a battle I believe the Warden should win. I look forward to reading the argument transcript.

    • Aliza Kaplan – 2 Promoted Comments

      The Supreme Court should uphold the lower courts’ rulings that a criminal defendant who rejects a plea offer because of his lawyer’s deficient performance may show prejudice and be entitled to relief if he later receives a longer sentence than the prosecution had offered under the plea.

      In Lafler v. Cooper and Missouri v. Frye, the state petitioners incorrectly argue for a very narrow interpretation of Strickland v. Washington, 466 U.S. 668 (1984)’s prejudice prong, applying it only to trials and not to pretrial proceedings or sentencing. They contend that there is no prejudice if the defendant has not been deprived of a fair trial; they argue that different from a fair trial, there is no “substantive or procedural right” to a plea agreement, so the defendants were not prejudiced by their lawyers’ deficient performances that only affected their plea bargaining process. However, this argument is misplaced and Cooper and Frye should prevail. A defendant has a Sixth Amendment right to effective assistance of counsel during the plea stage—once the prosecution makes an offer, the defendant has a right to have his attorney tell him that offer and provide reasonable information about the consequences of accepting or rejecting it. The Court has clearly and consistently recognized this right. See Padilla v. Kentucky, 130 S. Ct. 1473, 1480-81 (2010) (“Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel.”); Strickland, 466 U.S. at 688 (explaining counsel’s “dut[y] to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution”). Moreover, the Court has not only acknowledged that the overwhelming majority of cases are resolved by plea bargains, “[p]leas account for nearly 95% of all criminal convictions,” Padilla, 130 S. Ct. at 1485, but it has “long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Id. at 1486. Whether the defendant’s final sentence is reached by a trial or plea bargain, the attorney’s performance in providing his or her client with a fair process is crucial to the final result being fair. Accordingly, a defendant is entitled to a remedy if he or she relies on his or her attorney’s performance to communicate plea offers or interpret the law in the plea stage and receives ineffective assistance of counsel. If the Sixth Amendment guaranteed only a fair trial, Padilla would have come out differently.

    • Jane Moriarty – 1 Promoted Comment

      The issues at stake in Lafler v. Cooper and Missouri v. Frye are critically important to defendants, the government, and the justice system. There is a continuing trend toward greater reliance upon guilty pleas; in the last few years, fewer than 4% of all federal defendants and only 5% of state-court defendants took their cases to trial. Our criminal justice system has become nearly trial-free and our Sixth Amendment jurisprudence must recognize that reality.

      In both these cases, the focus is on the competence of the defense counsel at the plea bargaining stage and the proper scope of relief if counsel’s incompetence caused a reasonable probability of a different outcome. Here, the failure to explain competently the implications of accepting a plea or going to trial prejudicially affected the outcome of the entire plea process. I do not believe a fair trial subsequent cures the failure to properly advise the defendant on whether to plead. I would hope that the Court would reject the prosecution argument that as long as the defendant received a fair trial, there is no Sixth Amendment violation. Defendants are dependent upon their counsel to provide competent information and advice about whether to plead guilty or go to trial. With hope, the Court will recognize the reality of that dependence and the crucial role that competent counsel plays in the decision whether to waive the right to trial. To do otherwise would render toothless the important constitutional right to assistance of counsel at this critical point in the process.

    • Jenny Roberts – 1 Promoted Comment

      Padilla gave the long-ignored process of client counseling about the decision of whether to plead guilty or go to trial its proper Sixth Amendment due. Lafler and Frye present an opportunity to continue that critical discussion, in the larger context of the Court’s seeming willingness to begin to regulate the reality of our current plea-bargaining based criminal justice system. Indeed, at oral argument, several Justices noted the current high rates of guilty pleas.

      All parties in both cases agree that counsel for Mr. Frye and Mr. Cooper rendered deficient performance under the first prong of Strickland. However, counseling about a potential guilty plea and the fact that almost all convictions flow from guilty pleas is also a core concern of the contested issue in the cases, that of whether the incompetent lawyering prejudiced either defendant. Missouri and Michigan want to take plea negotiations and the failure to communicate a favorable plea offer out of the prejudice picture, arguing instead that Frye’s later guilty plea and Cooper’s later trial were valid, so that any earlier missed opportunities are irrelevant. This ignores the fact that these missed opportunities were, in a system where plea bargains and guilty pleas dominate, the main event. If a missed opportunity to cut one’s losses, plead guilty, and take ninety days in jail rather than three years (in the case of Frye) or four-to-seven rather than fifteen-to-thirty years (in the case of Cooper) to is not prejudicial, then it is hard to imagine what is.

      In deciding Frye, the Court is confronted with a particular (if not completely unique) fact that should not drive the decision: that just days after his original plea offer expired, Mr. Frye was re-arrested. Without this fact, it is easier to focus on the underlying principle that any decision must address: is there prejudice when a person pleads guilty and get a sentence that is significantly longer than the sentence he would have received had his counsel told him about an earlier, more beneficial plea offer? The broader issue is presented in starker, and likely more realistic, light in the absence of the re-arrest. In deciding the prejudice issue, the Court should reject the government’s weakly-supported argument that the Sixth Amendment only protects trial rights (or the waiver of those rights at the moment of entering a guilty plea) and indeed does not even apply to plea negotiations between defense counsel and the prosecution. Such an approach would render the Sixth Amendment meaningless in our plea-driven system, where things like Cooper’s lawyer’s bad advice about his chances at trial or Frye’s lawyer’s failure to communicate the plea offer are the most significant moments in the case.

      • Kent Scheidegger – 6 Promoted Comments

        “If a missed opportunity to cut one’s losses, plead guilty, and take ninety days in jail rather than three years (in the case of Frye) or four-to-seven rather than fifteen-to-thirty years (in the case of Cooper) to is not prejudicial, then it is hard to imagine what is.”

        I can rather easily imagine two things more prejudicial: (1) being convicted of a crime you did not commit, and (2) being sentenced to more than is just for the crime and your criminal history.

        These are the outcomes the Strickland Court was worried about when it limited relief to cases where the judgment “resulted from a breakdown in the adversary process that renders the result unreliable.” (687) That did not happen in this case. A fair trial or an informed, voluntary guilty plea is no less reliable because defense counsel muffed a prior offer that the prosecutor had no obligation to offer in the first place.

    • Loren AliKhan – 1 Promoted Comment

      The Court should hold that the Sixth Amendment is violated when a defendant forgoes a plea due to ineffective assistance of counsel and is then convicted and receives a more severe sentence than would have resulted from the plea. Neither a subsequent trial nor a less favorable plea can cure that violation or undo the prejudice suffered from the counsel’s deficient performance. Instead, courts must fashion a remedy that places the parties as close as possible to the position they were in before the ineffective assistance occurred.

      The Court has already recognized that plea bargaining is a critical stage of criminal proceedings, and with over 95% of criminal cases being resolved through guilty pleas, the Sixth Amendment’s guarantee of effective assistance would be a hollow promise if the Court does not recognize the right, and an appropriate remedy, in the context of forgone pleas.

    • Kent Scheidegger – 6 Promoted Comments

      The starting point here is to remember what a drastic measure it is to overturn a judgment for ineffective assistance of counsel. Where else in American law can a judgment in favor of a party who did nothing wrong be reversed for the failings of opposing counsel?

      This unique ground of reversal is allowed in criminal law alone because the stakes in criminal law are unique. The conviction of an innocent person is an otherwise irreparable harm, not compensable by a malpractice action against the attorney. It is to guard against a miscarriage of justice that we allow a result that otherwise seems absurd, and this unique remedy should be confined to that situation.

      The general principle of the Strickland “prejudice” prong is that ineffective assistance is a ground to overturn a judgment only when we have reason to lack confidence in the result. For most cases, this general principle is crystallized in the specific rule that “prejudice” means there is a reasonable probability of a different result if counsel had acted differently. But that test does not always apply. There are some situations where an attorney might have gotten the defendant off with less, yet we do not doubt the reliability of the result. These include making a pitch for jury nullification (Strickland), letting the client commit perjury (Nix v. Whiteside), or making an argument of law that might have been accepted at the time but is now known to be incorrect (Lockhart v. Fretwell).

      In both of the Cooper and Frye cases, the defendants were convicted of crimes they actually committed and received sentences no greater than they deserved. We have no reason to doubt the reliability of the result. The fact that a better lawyer might have gotten them an undeserved windfall is insufficient reason to overturn the judgments.

      Reinstatement of the plea bargain would also be a bizarre result after trial, as in the Cooper case. Avoiding trial was the consideration for which the prosecution offered the bargain. That is like someone who rejects your offer to buy his car and later wants to go through with the deal, but he has wrecked the car in the meantime. He still wants you to perform your part of the bargain when he can’t possibly perform his.

      As counsel for Frye noted at argument, there is no perfect solution. He was quite wrong about what is the least imperfect solution. Given that the process has ended at a just result for the crime committed, the least imperfect solution is to let the judgment stand.

      • roxanne friedman – 4 Promoted Comments

        The starting point here is to remember just how bad representation is at the state trial court level and just how high the standard for ineffective assistance is. There are still lots of places here in the South where defendants don’t see their lawyer between arraignment and trial date, where lawyers depend on the good graces of prosecutors and judges to maintain their practices, where motions practice is perfunctory, where fees for investigators and experts are unavailable or inadequate, where there are so many appointments that a single lawyer or law office can’t give individual attention to any case. Ineffective assistance is not malpractice, it is a symptom of a system which offers only enough due process to sustain a conviction. So that makes habeas the only effective remedy.

      • Peter Goldberger – 0 Promoted Comments

        Kent: Your query (“Where else in American law can a judgment in favor of a party who did nothing wrong be reversed for the failings of opposing counsel?”) has a false premise, which was exposed and debunked in Cuyler v. Sullivan, 446 U.S. 335, 342-45 (1980). The Court held there, on the way to explaining that privately-retained counsel can render constitutionally-ineffective counsel, that the duty under the 14th Amendment to ensure a fair criminal process, including effective counsel for the accused, always rests, in the end, on the State — not on the prosecutor, of course, but on the State as a whole. When defense counsel renders ineffective assistance, it is not correct to suggest that the adverse “party” — that is, the State — has done “nothing wrong.”

        • Kent Scheidegger – 6 Promoted Comments

          The attribution of defense counsel’s failings to the state is a convenient fiction, not a reality, and hardly constitutes “debunking” of my premise. The fiction is particularly obvious in the case of retained counsel, where the defendant has his choice of any attorney who agrees to represent him, and there is absolutely nothing the state can do about it.

          • Peter Goldberger – 0 Promoted Comments

            If it is fiction, Kent, it is a “legal fiction” and is thus “reality” in a sense that counts importantly when assessing the likely outcome of a pending case. In other words, I was pointing out that as to one argument you advanced there was pertinent Supreme Court precedent of 30+ years’ duration against you. If your comment was not meant to be taken as a legal argument, then I guess I missed the point.

    • Sanjay Chhablani – 2 Promoted Comments

      As an initial matter, the Court is likely to reject petitioners’ claims that the right to effective assistance of counsel only applies in cases where defendants enter a guilty plea (and thereby waive the various Sixth Amendment trial rights). Instead, the Court will likely find that counsel have a duty to provide effect assistance throughout the plea bargaining process, including a duty to communicate plea offers to clients and to provide reasonable professional evaluations of those plea offers.

      But, having established the right to effective assistance of counsel, the Court will likely deny relief for one of two reasons. First, the Court could find that the defendants suffered no prejudice, in effect rendering counsel’s constitutionally deficient conduct without remedy. Alternately, the Court could find that defendants in such cases can meet the Strickland prejudice prong but still not be entitled to relief because of harmless error analysis.

      As to the first option, it would in effect mean that there is no remedy for counsel’s constitutionally deficient conduct. As troubling as that sounds, it would not be the first instance in which the Court has found that a Sixth Amendment right lacks a remedy. Consider the right to an impartial jury. If a judge improperly excuses a prospective juror for cause over the defendant’s objection, the defendant will not be entitled to relief absent a showing that the resulting seated jury was not impartial. In other words, even if one could assumed that the excused juror might have been more favorable to the defendant than the jurors actually selected, the defendant would not entitled to a new trial because the Constitution guarantees only a trial before an impartial jury, not a trial before any particular juror.

      As to the second option, typically claims of ineffective assistance of counsel are not subject to harmless error analysis in part because such analysis is unnecessary. Harmless error analysis is generally speaking less exacting than the Strickland prejudice prong. So, if an error meets Strickland’s prejudice prong, and therefore qualifies for relief, harmless error analysis would not lead to a contrary determination. However, a harmless error inquiry in Lafler and Frye would be quite distinct. While the purpose of the Strickland prejudice prong is show that the defendant is harmed by counsel’s deficient performance, the purposes of harmless error analysis are resource conservation and the promotion of federalism, comity and finality. Particularly in light of the fact that prosecutors in both Lafler and Frye have made clear that they will not extend the same offers again (and the effect such opposition would have on the trial judge), these interests might compel a finding of harmless error. Alternately the Court might conclude that the convictions that were entered in both cases (whether after a trial or pursuant to a unrelated plea) rendered any error in the preceding plea bargaining process harmless. This would be analogous to the Court’s approach in United States v. Mechanik with respect to errors in the grand jury process that are raised after a subsequent conviction.

  • Aaron Tang – 0 Promoted Comments

    Assuming that the Sixth Amendment is violated by a lawyers flawed advice about the plea process, what should the remedy be?

    • Aliza Kaplan – 2 Promoted Comments

      As to the remedy, “[c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U.S. 361, 364 (1981). Therefore, courts must “identify and then neutralize the taint by tailoring relief appropriate in the circumstances.” Id. at 365. Based on this, the trial courts should be given discretion to create remedies that are the most fitting under the circumstances for the particular case. In some cases this will mean enforcing the original plea bargain’s terms and in others, it will mean vacating the conviction and starting over.

    • Laurie Levenson – 2 Promoted Comments

      Given how critical the plea bargaining process has become in our criminal justice system, it is too cavalier to say that any failures by defense counsel during that process are remedied by a fair trial. Once a defendant denies a plea offer, prosecutors often become entrenched in presenting the most damaging case possible against the defendant. Thus, mistakes by counsel at the plea bargaining stage will have a long-lasting effect on the defendant, including at sentencing.

      Although Strickland sets the general standard for ineffective assistance of counsel, there are different kinds of prejudice that arise from rejecting a plea offer. The Court’s focus should be on remedying prejudice. Offering a trial at which the prosecution believes that the defendant is refusing to take responsibility for his or her actions is not the answer. Perhaps it is time for prosecutors to articulate why they are making plea offers and for defense counsel to articulate why they are rejecting them. Then, the court will be able to evaluate whether defense counsel’s erroneous advice really did have an impact on the defendant’s decision to reject a deal.

  • Aaron Tang – 0 Promoted Comments

    Offer your predictions of how the cases are likely to be decided.

    • David Perez – 1 Promoted Comment

      The biggest sticking point for both these cases is the remedy, which is neither simple nor intuitive. The Court has two options: order specific performance of the plea bargain, or vacate both convictions and order a new trial (thereby resetting the process to the plea bargaining stage). I think the Court will ultimately conclude that it has no power to order specific performance and that it has no choice but to order a new trial.

      Although specific performance of the plea bargain is the most intuitive remedy, it is also the most complex, and often impossible to implement. Traditionally, specific performance of a plea offer has only been available where the prosecution has abused its discretion or reneged on an accepted plea agreement. Otherwise, there are difficult logistical issues involved. For instance, since most of these cases originate in state court, permitting federal courts to order specific performance could implicate federalism concerns, such as the abstention principle, which generally bars federal interference with state criminal proceedings. Additionally, forcing the prosecution to reoffer a plea bargain that it initially offered to avoid the expense and risk of a trial it has already won, would violate basic fairness principles enshrined in the separation of powers doctrine – especially since it would often entail dismissing charges.

      Certain changed conditions may also make the original plea irretrievable under the Constitution’s double jeopardy clause, which forbids a defendant from being prosecuted twice for the same crime if he has already been found innocent. For instance, imagine a scenario where the defendant is indicted for both felonious possession of a firearm and also aggravated manslaughter. The initial plea offer stipulates that if the defendant pleads guilty to the firearm offense, the state will drop the manslaughter charge. Instead, the defendant turns down the plea and goes to trial, where he is convicted of aggravated manslaughter, but is found innocent of the firearms charge. The prohibition against double jeopardy would then prevent the defendant from pleading guilty to felonious possession of a firearm, a charge for which he has been declared innocent. The plea, at this point, would be impossible to resurrect.

      Courts that order specific performance rarely consider these constitutional principles. Those courts that do, however, usually opt for a retrial. The new trial remedy is, admittedly, redundant and risks awarding the defendant a windfall chance at acquittal, which would be completely disproportionate to the harm alleged. But since a court cannot order a member of the executive branch to reoffer the plea bargain, a retrial isn’t just the best solution – it’s the only solution. I think the Supreme Court will realize that only by ordering a new trial can it adequately balance competing constitutional interests while still remedying a clear constitutional violation.

      • Kent Scheidegger – 6 Promoted Comments

        No, there is a third option and another solution. That is to recognize that the case is analogous to Lockhart v. Fretwell.

        Fretwell’s attorney might have gotten him a lesser sentence by making an argument of law now known to be incorrect. The Court held that was not “prejudice” within the meaning of Strickland because there is no reason to doubt the reliability of the result. In that situation, even if the attorney was ineffective, the judgment stands.

        Conducting a second trial when there was nothing wrong with the first one is not just “redundant,” it is preposterous.

    • Jeff Kirchmeier – 1 Promoted Comment

      In thinking about the possible outcomes, an interesting question is whether the Court might apply a different standard to each of the two cases.

      Because lack of preparation for trial may constitute ineffective assistance of counsel, it seems clear there is a constitutional right to counsel at the plea bargain stage. So the key aspect of the cases will be how the court addresses the prejudice issue. There is a way that the Court may decide that creates different outcomes for the two cases.

      In Lafler v. Cooper, the ineffectiveness claim is based on deficient performance, i.e., that counsel gave bad advice about the plea. If an attorney gave bad advice during trial, a defendant would have a Sixth Amendment claim if the defendant could show prejudice.

      In Missouri v. Frye, though, where counsel failed to notify Frye about a plea offer, the claim is comparable to situations where a defendant was without counsel during a critical stage or counsel concedes guilt. In cases where counsel does not participate or is absent, the Court has held that prejudice is not required.

      There is an unfairness in both cases, and the defendant in Lafler was not able to make an informed choice either, so there is also an argument the cases are similar. But one option for the Court in these cases is to draw a line between the two cases and not require a showing of prejudice where a defendant was not even aware of the offer.

      As others have noted, the Court’s decision on these cases is important considering the large percentage of criminal cases that are decided at the plea bargaining stage. So I hope that the Court is able to craft its decisions to protect the important rights at this stage.

    • Sanjay Chhablani – 2 Promoted Comments

      There is a possibility that Lafler could be disposed by a determination that the Michigan courts’ resolution of the claim of ineffective assistance of counsel was not unreasonable, making the lower federal courts’ granting of habeas relief improper under the AEDPA.

      More likely, the Court will address the substantive questions raised by Lafler and Frye, and, perhaps unanimously, find for the petitioners in both cases.

  • Aaron Tang – 0 Promoted Comments

    Finally, in this thread discuss any other issues related to Lafler and Frye, or the Court’s ineffective assistance of counsel jurisprudence that you think warrant attention.

    • Larry Benner – 1 Promoted Comment

      The oral arguments in Cooper and Frye dramatically demonstrate the bankruptcy of the Court’s ineffective assistance of counsel jurisprudence in the context of plea negotiations and advice. They also reveal a Court seemingly unaware of the current crisis in indigent defense across the county. What is at stake, as Justice Kagan recognized, is the integrity of our criminal justice system which resolves 97% of its cases through plea bargaining. If no consequences result from providing ineffective assistance of counsel at this stage, then there will be little incentive to prevent local governments from forcing underfunded public defender offices to handle crushing caseloads, and little hope of ending the practice of those contract attorneys who, in order to make court appointments profitable, “meet, greet and plead” their clients at the first court appearance with little or no investigation.

      Every one admits that the court appointed defense counsel in both of these cases made egregious errors which harmed their client’s liberty interests. Virtually everyone (except perhaps Justice Scalia) agreed this was unfair. Yet like fish out of water, counsel and the Justices flailed about attempting to apply the Strickland formula for determining prejudice to factual situations that were not before the Court in Strickland. Perhaps in such circumstances the Due Process Clause, which incorporates and applies the Sixth Amendment to the states, should stand on its own two feet, as Justice Harlan believed in Gideon, because what is undermined in these cases is confidence in the fundamental fairness of our criminal justice system.

    • Sanjay Chhablani – 2 Promoted Comments

      While the Court’s effective assistance of counsel jurisprudence will likely not lend itself to remedying the problems faced by defendants such as Cooper and Frye, there may well be an underlying Due Process issue. While it is true that the Due Process clause guarantees defendants the right to a fair trial, it does more. It guarantees procedural fairness in all proceedings that lead to deprivations of life, liberty or property. This would arguably include the process of plea bargaining. Of course such a Due Process claim would be subject to harmless error analysis, which as noted above might well lead to the denial of relief in Lafler. In Frye, one might argue that counsel’s complete silence rendered the Due Process violation a structural error, exempting it from harmless error analysis.

      Moreover, it is significant that all lower courts to consider this issue have found it deeply problematic when deficient performance by counsel leads a defendant to reject or not accept a plea. This raises the possibility that some state courts may use state constitutional provisions to adopt prophylactic rules in such cases that provide a remedy to defendants for the deficient performance of their counsel. For instance, when the Court decided in Mechanik that errors in grand jury proceedings may not be remedied when the defendant is subsequently convicted, several state courts interpreted their state constitutions as giving defendants the right to have their grand jury indictments dismissed despite being convicted by a jury. So it is entirely possible that if the Court reverses these two cases, the states will be the battleground for efforts to ensure that a remedy is provided for deficient performance by counsel in the plea bargaining process.

      Finally, the conceptual problems raised in Lafler and Frye highlight the need for the Court to revisit fundamental problems with the test for effective assistance of counsel adopted by the Court in Strickland v. Washington.

  • A Hays Town III JD – 0 Promoted Comments

    In Cooper, counsel conveyed the offer- while counsel may have misinterpreted the law and facts- that is a strategy call, albiet poor. While in Frye, counsel failed to communicate with his client and caused harm to his client. That warrants a withdrawal- client should not be penalized because of counsel mistake.
    While one may say an Accused is not entitled to a plea offer-one must be real- can not try all cases.
    So what is the object lesson- carry the message, explain the offer in both terms the postive and the negative. Carry to the State your clients answer. Thanks Hays

  • Brandon Cogswell – 1 Promoted Comment

    Is the plea bargaining stage of a criminal case a critical stage? Yes. In most criminal courts the plea bargaining stage is spread throughout the pretrial stage. Defendant’s are entitled to counsel at their arraignment, through the pre-trial process and at trial as these are critical stages. The Court is not going to remove the plea bargaining stage as a non-critical stage. Since the plea bargaining stage is a critical stage, defendant’s are entitled to relief when their counsel is ineffective.

    The two cases are only similar in that they deal with ineffective assistance of counsel and they both have attorneys who were negligent in their representation. They are very different, however, in that Frye deals with an attorney not communicating with his client and Cooper deals with an attorney communicating the offer but believing the State cannot meet its burden at trial. The client in Frye was provided ineffective assistance. The client in Cooper was provided bad advice, but not necessarily ineffective assistance.

    In Frye, the failure to communicate the plea offer to the Defendant is similar to the failure to convey a settlement offer in a civil case. Attorneys do not make the decision to go to trial. We may encourage, but ultimately the choice is our client’s. In the 6th amendment context, the Supreme Court here is likely to find that the 6th amendment was violated. But for counsel’s failure to communicate the offer to his client, client would not have proceeded to trial. So what is the remedy? I propose that the Supreme Court is going to grant some sort of relief to the Defendant. The problem is that the Defendant was provided with a fair trial he just wasn’t provided with an opportunity to take a plea bargain.

    In Cooper, counsel gave bad advice but it may not rise to the level of ineffective assistance under Strickland. The client still elected to take the case to trial presumably having all the information necessary to make decisions in the case. Counsel gave his advice which, even though very poor, is the job of a defense attorney. Client then has the opportunity to accept or reject a plea offer. I propose in this instance the Court will not grant relief.

    I agree with the comment above, both cases involve ineffective assistance of counsel. With 97% percent of cases resolving by way of plea, there must be a remedy when counsel is deficient. One problem is forming a test for what makes counsel deficient in the pretrial stage as opposed to the trial stage. Until the Court decides to create a new standard for effective assistance in the pretrial stage, we are left with resolving ineffective assistance cases using the Strickland test. And under that test, I believe there is only ineffective assistance in the Frye case, not the Cooper case.

  • Mohammad Hamoudi – 1 Promoted Comment

    I think it is important to remember that the Sixth Amendment is a fundamental right that belongs to the defendant. The Sixth Amendment is not concerned with the collateral consequences underlying a Sixth Amendment violation. The right to a fair trial is a component of the Sixth Amendment. The right to effective assistance of counsel is a component of fair trial.

    Most criminal defendants involved in these cases are indigents. Indigent criminal defendants lack the necessary skills and knowledge to navigate through the “give and take” bargaining involved in plea agreements. The defense attorney is their agent. If this case involved a contract right where property rights were at stake, the court would find little trouble in fashioning a remedy that addresses the contractual harm.

    Concepts of offer, acceptance, condition, terms, consideration, and performance exist in plea bargaining. The criminal defendant who loses out on a deal because of his lawyer’s incompetence cannot obtain relief in a civil court for malpractice. There is no political representative out there willing to introduce legislation to protect a criminal defendant from an incompetent criminal defense attorney.

    The only thing available to the defendant who loses out on a bargain or suffers any harm because of his lawyer’s incompetence is an ineffective assistance claim. The district court is more than capable like any other court in a contract case to consider all the facts and tailor an appropriate remedy to address the harm. A hard and fast rule by the Supreme Court would not be appropriate.

    There are many capital defendants who get sentenced to death because of their attorney’s failure to save their client’s life through early disposition of the case. Many capital attorneys are too eager to go to trial. There is a lot at stake with these two cases that is not specifically addressed by the cases themselves.

    The remedy should be specific performance of the original bargain in Lafler’s case. The court should be allowed discretion to either approve the terms or disapprove the terms based on conditions, elements of the bargain, etc.. That discretion should be informed by the extent the defendant established a Strickland violation, i.e., to what extent the defendant was aware of the bargain and refused to take it.

    The prosecutor should not have the option to retry the case. There will be no watershed effect by such a ruling because Strickland relief is rarely granted.

    The prosecutor represents the state and the defense attorney is regulated by the state. It is the state’s responsibility to regulate plea bargains especially when the state is heavily regulates conduct of the prosecution and defense attorney. When the state fails to do so and the client suffers like clients did in these cases, the state should bear the burden.

    On the one hand, the rare circumstance where a new trial is warranted and the prior trial was fair, what is really lost? money? resources? an illogical application of the Sixth Amendment?

    On the other hand, the rare death penalty circumstance, where a client is sentenced to death, is executed, and is later exonerated, what could have a plea of life afforded that client?

    It seems like an easy decision to me. I guess it is a much more difficult decision for the reasons cited above.

  • saul Sandoval – 0 Promoted Comments

    I am not a lawyer.

    My solutions are simple and are not very sophisticated. Here’s my two cents on SCOTUS solution to these type of cases

    My point is that there should be a automatic standard form that the defendant signs that says I am moving in this direction on advise of my counsel since I am being told that my out come is more favorable to follow his advice. If the favorable condition turns out to be unfavorable due to my lawyers incompetency (lawyers incompetency would be defined with a laundry list of what constitutes incompetency) then the unfavorable outcome is null and void and I shall be automatically reinstated to the original position I was in before following the advice of counsel. ( In other words the key word here is that the form is a conditional agreement in going forward)

    But this would have to be the law of the land which only SCOTUS can do. Just like Miranda became the law of the land. I know that Miranda has been very watered down since its inception but if there was such a law then all you would have to do is to show any incompetency (very low bar) as described in the laundry list and the unfavorable out come would be null and void and the defendant would now get a second chance of getting the best outcome with a different lawyer. You think that SCOTUS would be in favor of such a law since it’s not like you are letting an obvious guilty person to be free you just sort of guaranteeing that he get another chance with an effective counsel and get the best deal possible vs the bad one he originally got. Plus if the goal is to reduce cases involved with ineffective assistance of counsel being brought up before SCOTUS then this law would reduced them considerably
    I know this is an over simplification of the complexities of such a law but crazier things have turned out of SCOTUS. Look at the Citizen United case. If they can allow such a crazy law of the land like that to be created then my suggestion is not that far fetched. This court though is too conservative

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