Argument preview: Remedy for ineffective assistance of counsel during plea bargaining?
The Court will kick off the November sitting with two cases addressing the ineffective assistance of counsel during the plea bargaining process. The question presented in Lafler v. Cooper and Missouri v. Frye is whether a defendant who rejects a plea offer because of ineffective assistance of counsel is entitled to relief if the defendant later receives a longer sentence than the prosecution had offered under the plea. Lafler and Frye are the latest of a handful of cases this Term focused on the adequacy (or inadequacy) of defense counsel.
In Lafler v. Cooper, the Sixth Circuit held that Cooper’s attorney provided ineffective assistance in advising Cooper to reject a plea bargain, and it ordered “specific performance” of the rejected plea even though Cooper had later been convicted at trial.
Cooper shot a woman, striking her several times below the waist. He was arrested and charged with assault with intent to murder, possession of a firearm by a felon, and other charges. The state offered a plea bargain under which Cooper could plead guilty to the assault with intent to murder charge and face a minimum sentence of fifty-one to eighty-five months in prison. Although Cooper was inclined to take the plea, his counsel advised him that, because the victim was injured below the waist, the state could not establish an element of its case, i.e., intent to murder. Based on this erroneous advice, Cooper rejected the deal. Cooper was later convicted at trial and received a sentence of between 185 and 360 months in prison.
After the Michigan state courts denied Cooper post-conviction relief, he petitioned for federal habeas relief based on his ineffective-assistance claim, which the district court granted. The court ordered “specific performance,” giving the state the choice of either offering Cooper the original plea deal or releasing him. The Sixth Circuit affirmed. The court focused on the familiar ineffective assistance test in Strickland v. Washington, which requires a showing that (1) counsel’s assistance was deficient, and (2) the deficiency prejudiced the defense. The Sixth Circuit held that the first prong was easily met because counsel provided affirmatively incorrect legal advice. Turning to the second prong, the court rejected the state’s argument that no prejudice occurred because Cooper was convicted at trial. Instead, the court held that counsel’s deficiency was prejudicial because “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Since Cooper “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him . . . he has established prejudice.” Reviewing for an abuse of discretion, the court also affirmed the district court’s remedy of specific performance.
In Missouri v. Frye, the Missouri Court of Appeals held that Frye’s attorney provided ineffective assistance in failing to notify Frye about a favorable plea offer that expired, and it ordered that Frye’s later guilty plea be withdrawn and remanded to allow Frye to either insist on trial or enter another plea.
The state charged Frye with driving while his license was revoked. Because Frye had at least three prior convictions for that same offense, the state charged him with a class D felony, which carries a four-year maximum term of imprisonment. The prosecutor wrote to Frye’s counsel and offered two alternative plea agreements. Under the first option, Frye could plead guilty to the felony charge, and the state would recommend a three-year sentence, defer to the court’s views regarding probation, but request that ten days be served in “shock” incarceration in the county jail if probation was granted. Alternatively, the prosecutor would amend the charge to a misdemeanor, which carries a maximum one-year sentence, and recommend a ninety-day prison sentence. The letter indicated that Frye needed to respond by a specific date to accept either offer. Frye’s counsel never told Frye about the plea offer. Frye eventually entered an “open” guilty plea (a plea entered without the benefit of a plea agreement), and the court conducted a plea colloquy confirming Frye’s waiver of rights. The court sentenced Frye to three years in prison.
Frye sought post-conviction relief, claiming that his counsel’s failure to inform him of the plea offer constituted ineffective assistance of counsel. Frye asserted that had he known of the offer, he would have agreed to plead guilty to the misdemeanor. The Missouri trial court denied relief. The court found that counsel’s performance was deficient but, relying on the Supreme Court’s decision in Hill v. Lockhart, held that Frye did not show prejudice since he did not claim that, but for his counsel’s errors, he would have gone to trial rather than plead guilty.
The Missouri Court of Appeals reversed. It agreed that the performance of Frye’s counsel was deficient, but it held that that Frye had shown prejudice. According to that court, Frye could demonstrate prejudice if “the result of the proceeding would have been different” — i.e., but for counsel’s error, he would have taken the state’s earlier (and better) deal. The court emphasized that this was a case where the state offered to modify how it charged the offense; it was not merely offering a non-binding sentencing recommendation. If counsel had timely communicated the offer, Frye could have accepted it and pled guilty to a misdemeanor, which the sentencing court would have been bound to accept. The court did not order “specific performance,” reasoning that it lacked the power to order the state to reduce the charges against Frye. Instead, the court ordered that the guilty plea be withdrawn, and it remanded to allow Frye to either insist on trial or plead guilty to either the felony offense or whatever amended charge the state deemed appropriate.
In both cases, the parties either agree or assume for argument’s sake that the performances of Cooper and Frye’s counsel were deficient. The central disagreement between the parties — on the one hand, the criminal defendants, and on the other the states and United States (appearing as an amicus in support of the states) — is Strickland’s prejudice prong. The states and United States argue that, so long as the defendant has not been deprived a fair and reliable trial, there is no prejudice under Strickland. By contrast, Cooper and Frye argue that because plea bargaining is a critical stage of a criminal proceeding, the relevant inquiry is whether counsel’s deficient performance affected the outcome of the plea process — the view uniformly applied by the lower courts.
The states’ arguments
The states argue for a trial-focused test to establish prejudice under Strickland. They argue that the Sixth Amendment’s guarantee of effective assistance of counsel derives from the right to receive a fair trial. Thus, they argue, there is no cognizable prejudice if the deficient performance does not “deprive the defendant of a fair trial, a trial whose result is reliable.” Prejudice is not established merely by showing that different conduct by counsel would have produced a different outcome, such as a shorter sentence. They point to Lockhart v. Fretwell, in which a lawyer’s failure to object likely resulted in a death sentence for the defendant. Rejecting the ineffective-assistance claim, the Court noted that the outcome would have been different but for counsel’s error, but it found that the inmate was not prejudiced by that error because it did not deprive him of a substantive or procedural right. The states argue that because there is no “substantive or procedural right” to a plea agreement (unlike a fair trial), the defendants were not prejudiced by their counsels’ deficient performances that affected only the plea bargaining process.
In Lafler, for instance, since the defendant entered a not-guilty plea and proceeded to trial, Michigan argues that Cooper — unlike a defendant who pleads guilty and thus opens himself up to criminal liability implicating substantive and procedural constitutional rights — was merely invoking his constitutional right to trial. No prejudice can result from that assertion of rights absent a showing that the trial itself was somehow unfair or unreliable.
In Frye, Missouri argues that, even if constitutional protections apply to all plea negotiations (which the state disputes), when a defendant raises an ineffective-assistance claim to challenge a guilty plea, under Hill the only way to establish the claim is to show that “but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Frye does not claim that he would have insisted on going to trial; in fact, he later entered a knowing and voluntary guilty plea.
The states further argue that the uniform holdings in the circuits that use an “outcome” test for prejudice are wrong and adopting such a test will open the floodgates to ineffective-assistance claims following every fair trial.
The defendants’ arguments
Cooper and Frye argue that the choice of whether to accept a plea offer pits a defendant against the state and constitutes a pivotal moment in the adversarial process. Thus, they rely on Padilla v. Kentucky to argue that the Sixth Amendment guarantees effective assistance of counsel during plea bargain negotiations — regardless of whether a defendant accepts or rejects an offer. Since this protection applies to stages other than trial, they argue, prejudice cannot be judged solely by determining the fairness and reliability of a trial. Instead, the deficiency may cause prejudice if it affects “the outcome of the plea process.” And Frye argues that it does not matter if he would have insisted on going to trial but for his counsel’s error. Rather, the deficient performance affected the outcome of the plea process by denying him the opportunity to accept a better plea deal.
Cooper and Frye point out that the approach advocated by the states and federal government has been rejected by twelve federal courts of appeals and twenty-five of the twenty-seven states in which the issue has arisen.
What’s the remedy?
A final dispute in both cases centers on the appropriate remedy, if any. In granting the petitions, the Court ordered counsel in both cases to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during the plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?”
The states argue that there is no appropriate remedy. They argue that vacating the conviction is not tailored to the purported constitutional violation because in Lafler, the defendant was found guilty after a fair trial, and in Frye, the defendant entered a knowing and voluntary guilty plea. Nor is it appropriate for a court to order the state to offer a defendant a previously rejected plea agreement because, the states argue, such an order violates the separation of powers, which leaves charging decisions solely in the hands of the executive.
Frye and Cooper counter that the only principled and logical remedy for an ineffective-assistance claim is to put the defendant back in the position in which he would have been absent the violation. In both cases, the defendants argue that permitting them to decide whether to accept the prior plea agreement is a narrowly tailored and appropriate remedy.
Finally, both sides and their amici agree on one thing: whichever way the Court decides the issue will have significant systemic implications for the plea bargain process. The states and their amici suggest that adoption of the lower courts’ approach will discourage pleas, encourage collusion between defendants and their counsel, and open the floodgates to post-conviction or post-guilty plea appeals and habeas petitions. The defendants and their amici argue that the parade of horribles is unrealistic, that collusion is unlikely given legal ethics rules, and that effective counsel is crucial to the integrity of the plea process, particularly given that prosecutors possess significantly more information than defendants during plea negotiations.