Recent New York Times Article:

Justices’ Ruling Expands Rights of Accused in Plea Bargains


Published: March 21, 2012

WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court
ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded
judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal
making is now subject to new constraints when bad legal advice leads
defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy
wrote for the majority. “The right to adequate assistance of counsel
cannot be defined or enforced without taking account of the central role
plea bargaining takes in securing convictions and determining

Justice Kennedy, who more often joins the court’s conservative wing in
ideologically divided cases, was in this case in a coalition with the
court’s four more liberal members. That alignment has sometimes arisen
in recent years in cases that seemed to offend Justice Kennedy’s sense
of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia
said in a pair of dissents he summarized from the bench, “the court
leaves all of this to be worked out in further litigation, which you can
be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though
trials take place under a judge’s watchful eye. Challenges to plea
agreements based on misconduct by defense lawyers will presumably be
common as well, given how many more convictions follow guilty pleas and
the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that
realm “opens a whole new boutique of constitutional jurisprudence,”
calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single
greatest revolution in the criminal justice process since Gideon v. Wainwright
provided indigents the right to counsel,” said Wesley M. Oliver, a law
professor at Widener University, referring to the landmark 1963

In the context of trials, the Supreme Court has long established
that defendants were entitled to new trials if they could show that
incompetent work by their lawyers probably affected the outcome. The
Supreme Court has also required lawyers to offer competent advice
in urging defendants to give up their right to a trial by accepting a
guilty plea. Those cases hinged on the right to a fair trial guaranteed
by the Sixth Amendment.

The cases decided Wednesday answered a harder question: What is to be
done in cases in which a lawyer’s incompetence caused the client to
reject a favorable plea bargain?

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G.
Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the
possibility of do-overs in cases involving foregone pleas followed by
convictions presented all sorts of knotty problems. But he said the
realities of American criminal justice required to the court to take

Some 97 percent of convictions in federal courts were the result of
guilty pleas. In 2006, the last year for which data was available, the
corresponding percentage in state courts was 94.

“In today’s criminal justice system,” Justice Kennedy wrote, “the
negotiation of a plea bargain, rather than the unfolding of a trial, is
almost always the critical point for a defendant.”

Quoting from law review articles, Justice Kennedy wrote that plea
bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”

One of the cases, Missouri v. Frye,
No. 10-444, involved Galin E. Frye, who was charged with driving
without a license in 2007. A prosecutor offered to let him plead guilty
in exchange for a 90-day sentence.

But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his
client of the offer. After it expired, Mr. Frye pleaded guilty without a
plea bargain, and a judge sentenced him to three years.

A state appeals court reversed his conviction but said it did not have
the power to order the state to reduce the charges against him. That
left Mr. Frye roughly where he started, with the options of going to
trial or pleading guilty without the benefit of a plea deal.

Justice Kennedy wrote that Mr. Frye should have been allowed to try to
prove that he would have accepted the original offer. But that was only
the beginning of what Mr. Frye would have to show to get relief. He
would also have to demonstrate, Justice Kennedy wrote, that prosecutors
would not have later withdrawn the offer had he accepted it, as they
were allowed to do under state law. Finally, Justice Kennedy went on,
Mr. Frye would have to show that the court would have accepted the

There was reason for doubt that Mr. Frye could prove that prosecutors
and the court would have ended up going along with the original 90-day
offer, as Mr. Frye was again arrested for driving without a license
before the original plea agreement would have become final.

Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr.
and Justices Clarence Thomas and Samuel A. Alito Jr., called all of
this “a process of retrospective crystal-ball gazing posing as legal

The second case, Lafler v. Cooper,
No. 10-209, concerned Anthony Cooper, who shot a woman in Detroit in
2003 and then received bad legal advice. Because all four of his bullets
had struck the victim below her waist, his lawyer incorrectly said, Mr.
Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for
a sentence of four to seven years. He was convicted, and is serving 15
to 30 years.

Justice Kennedy rejected the argument that a fair trial was all Mr. Cooper was entitled to.

“The favorable sentence that eluded the defendant in the criminal
proceeding appears to be the sentence he or others in his position would
have received in the ordinary course, absent the failings of counsel,”
he wrote.

A federal judge in Mr. Cooper’s case tried to roll back the clock,
requiring officials to provide him with the initial deal or release him.
Justice Kennedy said the correct remedy was to require the plea deal to
be re-offered and then to allow the trial court to resentence Mr.
Cooper as it sees fit if he accepts it.

Justice Scalia, here joined by Chief Justice Roberts and Justice Thomas,
said this was “a remedy unheard of in American jurisprudence.”

“I suspect that the court’s squeamishness in fashioning a remedy, and
the incoherence of what it comes up with, is attributable to its
realization, deep down, that there is no real constitutional violation
here anyway,” Justice Scalia wrote. “The defendant has been fairly
tried, lawfully convicted and properly sentenced, and any ‘remedy’ provided for this will do nothing but undo the just results of a fair adversarial process.”

Stephanos Bibas, a law professor at the University of Pennsylvania and
an authority on plea bargaining, said the decisions were a great step
forward. But he acknowledged that it may give rise to gamesmanship.

“It is going to be tricky,” he said, “and there are going to be a lot of
defendants who say after they’re convicted that they really would have
taken the plea.”

Justice Kennedy suggested several “measures to help ensure against late,
frivolous or fabricated claims.” Among them were requiring that plea
offers be in writing or made in open court.

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