U.S. Supreme Court Finds Defense Counsel Ineffective For Advice On Plea Bargains
By: John A. Schwab
On March 21, 2012, the U.S. Supreme Court issued opinions in two cases, Missouri v. Frye, 566 U.S. ___ (2012); and Lafler v. Cooper, 566 U.S. ___ (2012), affirming the principle that the Sixth Amendment’s right to effective assistance of counsel applies to the consideration of plea offers.
In Frye, the defense counsel failed to inform the defendant of two plea offers proposed by the prosecutor. The more attractive of the plea offers, proposed reducing Frye’s felony charge to a misdemeanor with a recommended 90-day sentence. After both offers lapsed, Frye ultimately pleaded guilty to a felony and was sentenced to three years in jail. Frye filed for post-conviction relief arguing that he would have pleaded guilty to a misdemeanor if he had known about the offer.
In Lafler, the defendant rejected a plea offer based on incorrect advice of counsel. The plea bargain involved the dismissal of two charges and a recommended 51 to 85 month sentence. After being convicted at the subsequent trial, the defendant received a mandatory minimum 185 to 360 month sentence.
Recognizing the disposition of most criminal cases today, the Supreme Court dismissed the assertion that a fair trial would “wipe clean” any deficient performance by defense counsel during the plea bargain process. To the contrary, at least in Lafler, the trial did not cure the error, “it caused the injury from the error.” Justice Kennedy commented that “it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” Such a position “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” As a result, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.
With that rationale as a foundation, the Supreme Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” In circumstances where the defense counsel has failed to meet this standard, “counsel did not render the effective assistance the Constitution requires” but the defendant must nevertheless demonstrate prejudice to be entitled to relief. The defendant must show a reasonable probability that (1) she or he would have accepted the earlier plea offer, and (2) the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it.
Where prejudice has resulted, the Supreme Court recognized that the remedy must be specifically tailored to the injury suffered sufficient to “‘neutralize the taint’ of a constitutional violation” without providing “a windfall to the defendant.” Where trial judges find that a defendant declined a plea offer due to ineffective counsel and subsequently received a greater sentence, the defendant may be resentenced to the terms offered in the plea agreement. Trial judges are also empowered to direct prosecutors to reoffer the plea proposal in circumstances where it contemplated a plea to less serious counts that those on which the defendant was convicted at trial.