Matthew T. Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
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Showing posts with label Due Process. Show all posts
Showing posts with label Due Process. Show all posts
Sunday, October 23, 2011
Tuesday, September 20, 2011
Eyewitness Identification Comes to the Forefront
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
September 20, 2011
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"
However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
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