Supreme Court Examines Plea Bargaining and Ineffective Assistance of Counsel

The LA Times has a nice editorial examining the two plea bargaining cases heard by the Supreme Court last week - Frye and Cooper.  The cases address the issue of defendants who turned down plea deals due to attorney malpractice.  Should such defendants be able to recpature the deals they previously rejected?

Below is a portion of the LA Times piece.

In 2007, Galin E. Frye was charged by the state of Missouri with driving with a revoked license, a felony because he had several previous convictions. The district attorney offered Frye's lawyer a plea bargain under which Frye would serve only 90 days in prison. The lawyer, however, didn't inform Frye of the offer, and Frye ultimately pleaded guilty and received a three-year sentence.

The second case stemmed from a 2003 incident in which Anthony Cooper shot a woman in her buttock and thighs, causing serious injuries. Prosecutors offered Cooper's lawyers a plea deal in which he would serve a minimum sentence of 51 to 85 months. Cooper turned down the offer because his attorney inaccurately (and bizarrely) told him that he couldn't be convicted of intent to murder because his victim was shot below the waist. Cooper went to trial, was convicted and was sentenced to 185 to 360 months.
At oral arguments last week, some justices suggested that such errors were harmless if the defendant subsequently received a fair trial. But, as Cooper can attest, that's not true: Mistakes of this sort can be extremely harmful. Justice Elena Kagan succinctly summed up the injustice of penalizing defendants for the blunders of their lawyers: "Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea-bargaining stage."
The criminal justice system would grind to a halt if every defendant insisted on his right to trial. But even those who regard plea bargains as a necessary evil must acknowledge that they should be fair.
In a 1984 decision, the court defined ineffective assistance of counsel this way: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the 6th Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Those conditions are clearly met when an attorney fails to tell a client about a favorable plea offer or discourages him from accepting one on the basis of false information. The Supreme Court should so rule.

An ongoing discussion regarding the cases is available at the Scotus Blog here. 

The transcripts from the Supreme Court arguments are availabe here.

In an article that will appear later this year in the Utah Law Review, I take on the issue of plea bargaining and its constitutionality as currently utilized by prosecutors. The abstract reads as follows.

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.

The plea bargaining article is available here.  A follow-up article discussing the topic further and examining the prevalence of innocent people who falsely confess through plea bargains will be available later this year.