March 01, 2012

U.S. Supreme Court Recognizes Right to Effective Counsel in Plea Bargains

Emily M. Williams

The U.S. Supreme Court heard a number of cases during its 2011-2012 term testing the limits of the Sixth Amendment right to the effective assistance of counsel. In nearly every instance, the Court issued decisions either reaffirming or expanding this right. This trend continued on March 21, 2012, when the Court issued a pair of rulings holding that there is a federal constitutional right to the effective assistance of counsel in the negotiation and acceptance of plea bargains. Although these opinions provided important recognition both of the prominent role that plea bargaining plays in the criminal justice system and of the importance of effective legal representation during that process, the Court granted wide discretion to trial court judges to determine the remedy when a defendant’s rights have been violated.

In the first case, Missouri v. Frye, defendant Galin Frye was charged with felony driving without a license after several repeat offenses. The State offered to reduce the charge to a misdemeanor with maximum jail time of one year in exchange for a guilty plea. Although prosecutors communicated this offer to Mr. Frye’s attorney, the attorney made no effort to relay the offer to his client. As a result, the offer expired without Mr. Frye ever knowing of its existence. Mr. Frye later pled guilty without any agreement with the State, and he was sentenced to three years in prison.

The Supreme Court held that Mr. Frye was entitled to the effective assistance of counsel during plea negotiations and that Strickland v. Washington provides the appropriate standard for evaluating such a claim. Consequently, a prisoner pursuing such a claim must prove both deficient performance and prejudice. Citing to a number of sources, including the ABA Criminal Justice Standards, the Court found that an attorney’s failure to communicate a plea offer to his client may constitute deficient performance. While evaluating deficient performance in Mr. Frye’s case, the Court noted that there was no evidence that any effort was made to communicate the offer or that Mr. Frye interfered in any way with the communication of the offer.

Having found deficient performance, the Court then analyzed whether Mr. Frye was prejudiced by his attorney’s actions. In order to prove prejudice, the Court held that Mr. Frye must show a “reasonable probability” that 1) he would have accepted the offer had it been made known to him; 2) acceptance of the offer would have resulted in a less severe sentence; 3) the state would not have withdrawn or changed the offer; and 4) the trial court would have sentenced him according to the agreement. Although the Court found that Mr. Frye had likely satisfied the first two requirements, it expressed serious doubts that the State would not have withdrawn the offer or that the trial court would not have rejected it. Writing for the majority, Justice Kennedy pointed out a number of considerations, such as the fact that Mr. Frye was charged with another instance of the same offense while the case was pending and that Missouri law allows a trial judge to disregard a plea agreement during sentencing. Ultimately the Court found that the issue of prejudice in Mr. Frye’s case turned on questions of state law and remanded the case for further proceedings.

A companion case, Lafler v. Cooper, was decided the same day as Frye. Anthony Cooper was charged by the state of Michigan with attempted murder for shooting a woman in her buttocks and leg. The prosecution offered a reduced sentence in exchange for a guilty plea, but Mr. Cooper’s attorney advised him not to take it, erroneously instructing him that he could not be convicted of attempted murder because the victim was shot below the waist. Consequently, Mr. Cooper’s case went to trial, where he was convicted and sentenced to a term 3.5 times longer than the sentence offered in the plea bargain. During state post-conviction proceedings, the court rejected the claim of ineffective assistance of counsel, its analysis turning on whether Mr. Cooper’s rejection of the offer was voluntary. Mr. Cooper then filed a habeas petition with the federal district court, which applied the Strickland standard and found that he had been denied his Sixth Amendment right to counsel. The Sixth Circuit affirmed the district court’s decision and ordered that Mr. Cooper be sentenced to the terms of the original plea offer.

The Supreme Court affirmed the Sixth Circuit’s decision in part, holding that if a plea bargain is offered, a criminal defendant has a constitutional right to effective assistance of counsel in considering whether to accept that offer. It rejected the State’s argument that a fair trial and sentencing by jury could correct the earlier constitutional error, noting that “the constitutional rights of criminal defendants . . . are granted to the innocent and the guilty alike.” Again writing for the majority, Justice Kennedy limited his analysis to the question of prejudice and the appropriate remedy, because both parties conceded deficient performance.

Examining the same factors discussed in Frye, the Court agreed with the Sixth Circuit, finding Mr. Cooper had satisfied the prejudice prong of Strickland. The Court found that the Sixth Circuit erred, however, in determining the appropriate remedy. It held that, in this instance, the State should re-offer the plea bargain, and if accepted by the defendant, the trial court could then exercise its discretion in issuing a sentence. Justice Kennedy suggested that this discretion is very broad, indicating that the court may issue a sentence ranging anywhere from the terms of the plea agreement to the original sentence being challenged by the defendant. He declined to discuss the “boundaries of proper discretion,” finding that this would be best informed by state law. The Court vacated the Sixth Circuit’s judgment and remanded for further proceedings.

Both cases were decided by a 5-4 majority of the court, with Justice Scalia writing dissents in each case joined by Justices Thomas and Roberts, and Justice Alito dissenting separately in Lafler.

Emily M. Williams

Staff Attorney