The Right to Effective Counsel in a Plea Bargain: The Important New Decisions in Missouri v. Frye and Lafler v. Cooper

Most criminal cases are resolved by plea bargains. Imagine a defense attorney does a terrible job informing his client about a plea offer: Maybe he gives the client bad advice about the desirability of the plea, or he just forgets to communicate the plea. As a result, the defendant does not take the deal. The defendant goes to trial and is convicted, and is sentenced to a higher punishment than he would have been sentenced to if he took the deal. Does the lawyer’s terrible job during the plea negotiations give the defendant a right to challenge his conviction and higher punishment? And if so, how can you tell if the defendant really would have taken the deal, given that every defendant who gets a higher sentence at trial can later claim that they would have taken the deal if their lawyer had been more effective? And what is the proper remedy?

This morning, the Supreme Court handed down two very important cases on these critical questions. Both decisions were 5-4, with Justice Kennedy joining the liberals and writing the majority opinion in both cases.

In the first case, Missouri v. Frye, the prosecution made a plea offer with an expiration date, and the lawyer did not tell his client of the offer. The defendant claimed that he would have taken the deal if he had known about it. Justice Kennedy holds that the Sixth Amendment right to counsel is implicated fully at the plea stage. Because the state conceded that the lawyer was ineffective if the right to counsel applied, the remaining issue was how to tell if a defendant was prejudiced by the lawyer’s ineffectiveness. According to the majority, the test for whether the defendant was prejudiced is as follows:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have acceptedthe earlier plea offer had they been afforded effectiveassistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

In the second case, Lafler v. Cooper, the defense attorney told the defendant about the plea offer but allegedly gave the client extremely foolish advice to reject the plea and go to trial. The defendant followed the lawyer’s advice, went to trial, was convicted on all counts, and received a much higher sentence than the plea. Again, the state conceded that the lawyer was ineffective. The test for prejudice in this setting was announced as the following:

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

If there is prejudice, what is the remedy? This is tricky, the Court explains, because the goal is to eliminate the taint of the unconstitutionality but not give defendants a windfall. Exactly how to do that is tough, as it depends on the case. In some cases, the Court explains, the remedy is a resentencing:

In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In other cases, a resentencing will be sufficient: “If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice.” What then?

In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

In implementing a remedy in both of these situations,the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion.

These are really important decisions, and there is a lot to mull over here. For now I just wanted to flag the new cases for those that haven’t seen them yet.