The Pittsburgh Post-Gazette/Ipso Facto
March 30, 2012
Plea bargaining is an integral part of the criminal justice system. Last week,
Justice Antonin Scalia said, with apparent surprise, that plea bargaining “is no
longer a somewhat embarrassing adjunct to our criminal justice system.”
Justice Scalia should not be surprised, 97 percent of federal cases and 94
percent of state cases end in plea bargains. The reality is that criminal
justice today is "a system of pleas," wrote Justice Anthony M. Kennedy. In two
U.S. Supreme Court decisions last week, the court ruled that the Constitutional
guarantee of adequate assistance of counsel cannot exclude the "central role
plea bargaining plays." For the most part, plea bargaining determines "who goes
to jail and for how long. It is not some adjunct to the criminal justice system. It is the
criminal justice system.”
The plea bargain, however unpopular or unseemly, plays a central role in the
administration of justice.
Setting aside the fact that trying every criminal case is impossible, there
are other compelling reasons to plea bargain. Prosecutors are intimately
familiar with the strengths and weaknesses of every case. There are situations
where a plea to a lesser offense is better than a not guilty verdict. A
reluctant witness or a poor witness will influence plea negotiations.
Witnesses often have to deal with their own demons, such as criminal records
and substance abuse—such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better
than the alternative.
Last week, in Lafler v.Cooper, the
court ruled that an attorney's advice to reject a favorable plea bargain based
on an incorrect understanding of the law was ineffective assistance of
counsel. In Missouri v. Frye, the court found that counsel's failure to
disclose the terms of a favorable plea offer is a
violation of the Sixth Amendment right to a fair trial.
Justice Kennedy wrote in Frye, “In today’s criminal justice system the
negotiation of a plea bargain, rather than the unfolding of a trial, is almost
always the critical point for a defendant.”
What will a defendant claiming ineffective assistance of counsel during plea
negotiations have to prove? The court has established a three prong analysis. First, a
defendant must prove he would have accepted the plea bargain if not for bad
legal advice; that there was a reasonable probability that prosecutors would not
have withdrawn the offer before trial; and a judge would have accepted the
plea.
Justice Scalia calls it “crystal-ball gazing posing as legal analysis.”
Stephanos Bibas, a law professor at the University of Pennsylvania, told the
New York Times 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.”
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Showing posts with label plea bargains. Show all posts
Showing posts with label plea bargains. Show all posts
Saturday, March 31, 2012
Sunday, October 23, 2011
U.S. Supreme Court Takes Another Look at Plea Bargains
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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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.
Visit Matt Mangino
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