The Washington Post on March 21, 2012 released the following:
“By Robert Barnes
A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.
In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.
“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.
Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.
“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”
Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.
“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.
The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.
Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”
He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”
The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.
The court was considering two cases in which all parties agreed that the lawyers involved had failed their clients.
In one, Galin Edward Frye’s attorney never told him of plea bargain offers from Missouri prosecutors on charges that he was driving with a revoked license. He later pleaded guilty and was sentenced to three years in prison. Prosecutors had offered Frye a couple of deals, one of which would have required 10 days in jail.
In the other, Anthony Cooper was charged under Michigan law with assault with intent to murder and other charges after shooting Kali Mundy in the buttock, hip and abdomen. She survived the attack.
Prosecutors offered Cooper a deal of 51 to 85 months in prison in exchange for a guilty plea. Cooper turned down that and other offers, allegedly because his attorney told him he could not be found guilty of the attempted murder charge, because he had shot Mundy below the waist.
Cooper went to trial, was convicted and was sentenced to 15 to 30 years in prison.
In the Frye case, the majority held that “when defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”
In Cooper’s case, the court said the “defendant who goes to trial instead of taking a more favorable plea” may be harmed by receiving “either a conviction on more serious counts or the imposition of a more severe sentence.”
The majority rejected the view of Scalia, the states and the Obama administration that any ineffective advice from Cooper’s attorney was remedied by what Scalia called “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true.”
That view, wrote Kennedy, “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”
“Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas,” he wrote.
Stephanos Bibas, a professor of criminal procedure at the University of Pennsylvania who wrote a law-review article cited in the majority opinion, said the opinion “erected standards” that will be difficult for some challengers to meet.
The majority opinion said defendants would need to show that they would have accepted the plea bargain if not for bad legal advice, that there was a reasonable probability prosecutors would not have withdrawn the offer before trial, and that a judge would have accepted it.
Scalia called this “retrospective crystal-ball gazing posing as legal analysis.”
And Kennedy acknowledged the difficulty in coming up with a remedy for those who proved all that. In cases where the advantage was a lighter sentence, he said, the judge may decide whether the defendant should receive the sentence offered by prosecutors, the one he received at trial “or something in between.”
In cases of a plea that offered a lowered charge, he said, the way to remedy the constitutional injury might be to “require the prosecution to reoffer the plea proposal.”
Alito, a former U.S. attorney, criticized the majority’s “opaque discussion” of the remedies. Requiring prosecutors to reoffer a deal, he said, would be an abuse of discretion in cases where new information about a defendant has come to light after the deal was rejected.
Proto said the decisions will not result in prosecutors offering fewer plea deals. Their resources are too stretched, he said, “to say we’re just not going to offer plea bargains.”
The cases are Missouri v. Frye and Lafler v. Cooper.”
Douglas McNabb – McNabb Associates, P.C.’s
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