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  • Ineffective counsel: High court allows heightened scrutiny of plea bargaining process

    Two recent U.S. Supreme Court decisions mean that criminal defendants can challenge the plea bargaining process on the grounds that their lawyer was ineffective. In this article, criminal defense lawyer Brian Kinstler discusses the impact.

    Brian Kinstler

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    Ineffective counsel: High court allows 
heightened scrutiny of plea bargaining processApril 4, 2012 – In two companion cases released on March 21, the U.S. Supreme Court affirmed the principle that criminal defendants have a right to the effective assistance of counsel during the plea bargaining process.

    The decisions, Lafler v. Cooper and Missouri v. Frye, are likely to impact the practice of plea negotiations, which plays a central role in most criminal cases in the U.S. However, Judge Jeffrey Kremers, the chief judge of the Milwaukee County Circuit Court, doubts the rulings will significantly impact courts.

    “Certainly there will be an increase in ineffective assistance claims, and they will include a Frye- or Cooper-type claim, but I do not think it will be a huge increase,” he said. “I do think judges will discuss ways to protect the record and the integrity of the process by asking a couple more questions, either before a plea or before a trial begins, to determine if any plea offers had been made and rejected.”

    Decisions extend constitutional protections

    Justice Anthony Kennedy wrote the majority opinion in both cases, joining the Court’s more liberal wing in extending constitutional protections to defendants who lose the benefit of a favorable plea deal because of their lawyers’ mistake.

    The decisions follow closely on the heels of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), in which the Supreme Court ruled that a guilty plea may be invalidated if counsel failed to advise the defendant that their plea “carries a risk of deportation.”

    The decision also relies heavily on Hill v. Lockhart, 474 U.S. 52 (1985), in which the Court held that a defendant’s guilty plea may be vacated if there is “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”

    The decisions in Cooper and Frye are important because they set a broad constitutional standard – albeit a relatively low one – for the performance of defense lawyers when advising their clients during the process of plea negotiations, which are frequently informal and occur largely outside of the courtroom.

    The decisions are also different from most right-to-effective-counsel cases because they involve defendants who did not directly challenge their convictions. Several state and federal jurisdictions – including Wisconsin – have issued similar holdings, but this is the first time the U.S. Supreme Court has adopted this view as the law.

    The cases

    In Lafler v. Cooper, No. 10-209 (March 21, 2012), a Michigan defendant faced four charges related to a shooting incident, including assault with intent to commit murder.

    Prosecutors offered to recommend a total sentence of 51-85 months on two counts, and to dismiss the remaining counts. Prior to trial, the defendant admitted his guilt to the court, and indicated a willingness to accept the offer, but later rejected the offer when his attorney told him – incorrectly – that the prosecution could not prove intent to commit murder because the victim had been shot below the waist.

    The defendant was convicted of all four counts at trial, and sentenced to a mandatory minimum sentence of 185-360 months.

    The Cooper majority focused on defendants’ needs to have minimally adequate legal advice and information when deciding whether to plead guilty or proceed to trial:

    “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” Justice Kennedy wrote. “If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more serious sentence.”

    In Missouri v. Frye, No. 10-444 (March 21, 2012), a Missouri man was charged with fourth-offense driving with a revoked license, a felony with a maximum four-year sentence.

    The prosecutor offered to reduce the charge to a misdemeanor and recommend a 90-day sentence, and set a deadline for Frye to accept the offer. However, defense counsel did not convey the offer to Frye, and the offer expired when the deadline passed.

    Frye eventually pleaded guilty to the original charge without a plea agreement in place, and was sentenced to three years in prison.

    Applying the same principles as Cooper, the Court found that counsel was deficient for failing to inform his client of the offer, but remanded the case for a finding on whether the prosecution and the court would have honored the more favorable plea offer.

    A remedy “tailored to the injury”

    In both Cooper and Frye, the Court recognized the need for an appropriate remedy, but did not require the same remedy in all cases.

    “Sixth Amendment remedies should be ‘tailored to the injury’ suffered from the constitutional violation and should not unnecessarily infringe on competing interests,” Justice Kennedy wrote.

    “Thus, a remedy must ‘neutralize the taint’ of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.”

    Although the Court did not create a specific remedy, it provided some general guidance to lower courts in tailoring the remedy.

    For example, the Court noted that in some instances, the charge of conviction would have been the same under the offer or the eventual finding of guilt. In those cases, a lower court could decide whether – and to what extent – a defendant’s sentence should be modified to better fit the original plea offer.

    In other cases, however, the original plea offer may have involved charges or penalties that were substantially different from the defendant’s actual conviction and sentence.

    In such cases, a lower court may ask the prosecution to reoffer the earlier plea agreement, “then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”

    A rare dissent from the bench

    In addition to writing strongly worded dissents in both cases (joined by Chief Justice Roberts and Justices Thomas and Alito), Justice Antonin Scalia also took the unusual step of delivering portions of his dissent from the bench.

    Scalia stated that the majority’s decision “opens a whole new field of constitutionalized criminal procedure: the field of plea-bargaining law.” He added that the new rule would allow guilty defendants to “escape a fair trial,” and predicted that the decisions would lead to a flood of new litigation by convicted defendants.

    In his written dissents, Justice Scalia argued that the Sixth Amendment right to counsel was narrowly intended to guarantee a fair and reliable result at trial, not “a constitutional entitlement to plea bargain.”

    Because the defendants in each case were found guilty in proceedings that were otherwise constitutional and without error – one by plea, the other by trial – Scalia contended that these were instances of “unfortunate attorney error, but not ‘error of constitutional significance.’”

    “The plea-bargaining process is a subject worthy of regulation, since it is the means by which most criminal convictions are obtained,” Justice Scalia wrote. “It happens not to be, however, a subject covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction.”

    Uncertainty ahead

    The Court's decisions in Frye and Cooper have generated controversy because the consequences for criminal courts loom large, but the real impact is unclear. According to Judge Kremers, there won’t be a significant impact on courts. But criminal defense attorneys should take note that plea bargaining will be under increased scrutiny.

    About the author

    Brian Kinstler, University of Iowa College of Law 2000, practices criminal defense in Wisconsin state and federal courts. You can reach him by email, or through the Kinstler Law Office at