Gideon Alert: High Court Focuses on the Right to Effective Counsel in Plea Bargaining

BY Edwin A. Burnette on Thursday, April 5, 2012 at 10:46 AM

The meaning of the Sixth Amendment’s promise of “effective counsel” has taken on additional dimensions over the past few weeks. On March 21, 2012, the U.S. Supreme Court issued two decisions exploring the right to effective assistance of counsel during plea bargaining. In Missouri v. Frye, the Court ruled that the Sixth Amendment requires defense counsel to communicate formal plea offers to their clients.   Galin E. Frye was charged with driving with a revoked license, an offense with a maximum potential prison term of four years. The prosecutor sent defense counsel a letter offering Frye two plea options, neither of which the lawyer communicated to Frye before the offers “expired.” Pursuant to one of the offers, the prosecutor would have recommended that Frye receive only a 90 day sentence. The defendant subsequently pleaded guilty without the benefit of a plea offer and was sentenced to three years in prison. 

In a companion case, Lafler v. Cooper, the parties agreed that defense counsel’s performance was deficient under  the Sixth Amendment when, based on a incorrect interpretation of the law, counsel told his client that he could not be found guilty at trial and advised him to reject  a plea offer. The prosecution’s offer included a recommendation of a 51-85 month sentence. Instead, the defendant was convicted at trial and received the mandatory minimum of 185-360 months. The Supreme Court rejected the argument that the conviction after a trial eliminated any prejudice suffered as a result of rejecting the plea offer and found that both prongs of Strickland’s test for ineffectiveness were met.  

Both decisions expound upon what must be established to show prejudice under the Strickland standard for ineffective assistance of counsel in the context of plea bargaining. Where counsel has failed to communicate a plea offer, as in Frye, “[D]efendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance 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.” Individuals who allege prejudice from bad advice regarding a plea offer, as in Lafler, must show that “there is a reasonable probability that the plea offer would have been presented to the court …, 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.”  The Court identified a number of steps that might be taken to “neutralize the taint” of the constitutional violation without granting a “windfall” to a convicted person, including holding an evidentiary hearing, discretionary re-sentencing, or having the prosecution re-extend the plea offer.

In Lafler and Frye the High Court once again emphasized the critical role that competent counsel plays in ensuring justice – whether criminal charges against an individual are addressed through plea negotiations or a trial.  The Frye Court noted that plea bargains have become so “central to today’s system of justice that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel…”  In rejecting the state’s claim that it would be unfair for the state to contend with the consequences of defense counsel’s deficiencies under the circumstances of that case, the Court considered the “simple reality” that 97% of federal convictions and 94% of state convictions are the result of the plea bargaining process. Similarly, in Lafler, the Court stated that “today’s criminal justice is for the most part a system of pleas, not a system of trials.” 

There is another “simple reality” that the Court did not address, but which has been the subject of countless research studies on public defense: the interconnection between the failure to provide competent representation and the indigent defense crisis that continues to plague our country. As the studies almost always conclude, most defense attorneys are committed, hard working professionals who don’t want to provide clients with bad advice.  Rather, far too often the reason for inadequate representation is because severely limited resources result in a lack of training and supervision and attorneys having too many clients to provide adequate representation.  

In both jurisdictions from which the cases arise such conditions are well documented.  In Missouri, the state giving rise to the Frye case, substantial increases in criminal prosecutions without corresponding resources allocated to the statewide defender system has resulted in counsel having insufficient time to spend on cases and left some accused individuals without counsel at all. Similarly, high caseloads and a lack of training, supervision and other resources in the Michigan public defense system was documented in NLADA’s report, A Race to the Bottom, Speed & Savings Over Due Process:  A Constitutional Crisis (2008). 

Both jurisdictions could make progress this year.  Missouri’s chronic inability to provide representation to all individuals constitutionally entitled to counsel is the subject of State ex rel Missouri et al v. Waters et al., a case pending before the Missouri Supreme Court. In an attempt to follow the guidance given by the Court in an earlier case, State ex rel Missouri v. Pratte, public defenders notified the courts when they reached caseload limits. Some courts continued to appoint them to cases, however, because they had no other alternative.  The establishment of protocols for controlling caseloads plays a critical role in attorneys’ ability to comply with their obligation to render effective representation. The Waters Court has been asked to clearly establish the Missouri Public Defender Commission’s authority to do so. (More on Missouri at ).

In Michigan, Governor Rick Snyder issued an Executive Order establishing an Indigent Defense Advisory Commission (Commission).  The Commission is charged with making recommendations to the Governor and Legislature for statewide “improvements to the system of providing legal representation for indigent criminal defendants.”  The recommendations from the 14-member, bi-partisan Commission must ensure, among other things, that “the right to counsel is delivered by effective counsel at each critical stage of the proceedings” and “government-funded criminal defense lawyers are sufficiently trained and supervised, appropriately qualified, and adequately compensated.”  The Commission must submit its findings and recommendations to the Legislature and Governor by July 15, 2012. (More on Michigan at )

Deficient performance such as the Court encountered in Frye and Lafler has economic consequences.  Commentators are already focusing on the enormous potential for future litigation arising out of the two decisions, as lower courts grapple with the parameters, processes and remedies for ineffective assistance regarding plea advice.  The Lafler decision acknowledged the “substantial social costs” of reversing a conviction after, as in that case, an unnecessary trial.  Those costs are contained when attorneys have the time and training they need to represent people competently. 


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