Supreme Court to Hear Arguments on Ineffective Counsel in Plea Bargainss

By Jeralyn, Section Court Decisions
Posted on Sun Oct 30, 2011 at 06:55:47 PM EST
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Tomorrow the Supreme Court will hold oral arguments in two cases in which the defendants' lawyers were ineffective at the plea bargaining stage, resulting in the clients turning down plea bargains and getting much more severe sentences after losing at trial.

There is no constitutional right to a plea bargain, but there is a constitutional right to effective assistance of counsel.

Considering that 97% of all federal convictions result from plea bargains rather than trial, the significance of the Supreme Court ruling will be big. [More...]

In Padilla v. Kentucky, which addressed the flip side of the question -- failure of counsel to inform a defendant pleading guilty that his plea would result in his removal from the U.S. -- Justice Stevens wrote:

“The negotiation of a plea bargain is a critical stage of the litigation for purposes of the Sixth Amendment right to effective assistance of counsel,”

For more on the issue, see Prof. Stefano Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection:

“It is astonishing,” he wrote, “that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment.”

And, this amicus brief filed in one of the two cases being argued tomorrow.

The cases are Lafler v. Cooper and Missouri v. Frye.

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Supreme Court to Hear Arguments on Ineffective Counsel in Plea Bargainss | 9 comments (9 topical)

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To support a request to (none / 0) (#1)
by oculus on Sun Oct 30, 2011 at 08:07:21 PM EST

invalidate a plea based on incompetency of counselAAn must defendant waive attorney/client privilege?

: To the limited extent necessary (5.00 / 1) (#3)
by Peter G on Sun Oct 30, 2011 at 09:32:48 PM EST

to respond to and address the allegations of ineffectiveness, yes.

was lawyer competent at trial? (none / 0) (#2)
by diogenes on Sun Oct 30, 2011 at 09:04:27 PM EST

If the lawyer was competent at the trial, then the finder of fact found the criminal (with competent defense) to be guilty. If the lawyer put on an incompetent defense at TRIAL, then there is a case.

Well, that's the position taken by (none / 0) (#4)
by Peter G on Sun Oct 30, 2011 at 09:39:04 PM EST

the minority of courts which take the states' side in this case. The great majority of courts have ruled, as TL suggests, that plea negotiation and sentencing are the key stages in most criminal cases, by far, not trials. To have the effective "assistance of counsel for his defense," as guaranteed by the Sixth Amendment, the defendant needs good counsel that those stages, at least as much as at trial. If s/he doesn't receive it, and chooses trial in ignorance of the realities of the case with devastating results in loss of liberty, the defendant has been deprived of his/her Sixth Amendment right to effective assistance of counsel, most courts agree. We shall see how the Supreme Court rules. It may be that after Monday morning's oral argument, we will have some idea how at least some of them are leaning.


the government concedes (none / 0) (#5)
by Jeralyn on Mon Oct 31, 2011 at 12:36:23 AM EST

the lawyer was not effective. It's argument is that it doesn't matter because the 6th Amendment right to effective assistance of counsel only applies at trial. The Supreme Court in Padilla v. Kentucky opened the door to expanding the right to guilty pleas. Now they just have to do the flip -- apply it to plea negotiations where the defendant rejected the plea offer because of ineffective assistance.


: this reply is to diogenes (none / 0) (#6)
by Jeralyn on Mon Oct 31, 2011 at 12:36:59 AM EST

hard cases make bad law (none / 0) (#7)
by diogenes on Mon Oct 31, 2011 at 10:50:21 PM EST

Unlike trials, plea negotiations have no paper trail or sworn testimony. Whose burden of proof is it to show "ineffective assistance" in a plea offer and by what standard of proof? Most plea cases have no written documentation of what a lawyer told his or her client beforehand. Maybe a judge should read a boilerplate statement to the person pleading "not guilty" and ask if he or she understands it so it is it transcribed on to the record.
Every rational person who loses a case after refusing a plea will hire a new lawyer (or get a legal aid lawyer) and appeal. Every defense lawyer will be subpoenaed as a hostile witness by the prosecution in this appeal. Every defense lawyer will have to testify against his client or admit to legal malpractice. All this for Mr. Anthony Cooper who admittedly shot a woman four times and for Mr. Frye, who admits to driving without a license and is not willing to accept a new trial on its merits.
If you competent defense lawyers want to open the doors to this in order to make sure that bona fide guilty people have a full right to a lesser sentence than their crime merits by having a plea bargain, then you're better people than I.

: Absolutely detached from reality (none / 0) (#8)
by Rojas on Tue Nov 01, 2011 at 08:23:47 AM EST

With DNA we have shown that around 20% of factually innocent people plead guilty to a crime they did not commit. Our resident cynic is delighted with the status quo.

: In our present system (none / 0) (#9)
by Peter G on Tue Nov 01, 2011 at 11:56:05 AM EST

the only way a guilty person does have a chance of receiving the sentence that his or her crime "merits" is by pleading guilty. The "trial penalty" is almost always a sentence far in excess of what the crime "merits." As for the burden of proof -- the burden to prove ineffective assistance and that prejudice (legal harm) flowed from counsel's deficient performance is on the prisoner-petitioner, by a preponderance of reliable evidence. Counsel is presumed to have been effective, and the petitioner must overcome that presumption. These cases are not easy to win for the prisoner, as I know from personal experience both representing the challenger and being the witness (former counsel whose actions were being challenged). Dio's predictions about what would happen in "every case" are unrealistic in the extreme.