U.S. Supreme Court Hears Faulty-Lawyer Cases

Justices Hear Arguments in Faulty-Lawyer Cases
The New York Times by Adam Liptak  -  October 31, 2011

WASHINGTON, DC — The Supreme Court heard arguments Monday in two cases concerning what should be done when criminal defendants pass up favorable plea bargains based on unprofessional work by their lawyers.  Several justices noted that some 95 percent of criminal convictions were the result of guilty pleas. Just last year, the court ruled that “the negotiation of a plea bargain is a critical stage of the litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”  Last year’s case involved bad advice that caused a defendant to plead guilty. Monday’s cases — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No 10-444 — concerned defendants who, based on incompetent legal work, had failed to accept what turned out to be attractive offers.  Justice Anthony M. Kennedy appeared reluctant to adopt principles that treated poor legal work differently depending on whether it resulted in the acceptance or the rejection of a plea offer.  “You are saying it’s not a critical stage depending on what the end result is,” Justice Kennedy said to Chris Koster, Missouri’s attorney general. “That’s very difficult. I thought we were going to tell attorneys, you have an obligation during this plea bargain process to use professional competence.”  But even justices sympathetic to that point of view indicated that it was hard to know how to address the problem of ineffective assistance of counsel in the context of a foregone plea offer. Even a lawyer for one of the defendants conceded the point.  “There is never going to be a perfect remedy for any of these violations, I don’t believe,” said the lawyer, Emmett D. Queener, who represented Galin E. Frye.  Justice Antonin Scalia jumped on the concession. “That’s one of the things that causes us to be suspicious of whether there is a constitutional violation, because there really isn’t any perfect remedy,” he said.  In 2007, Mr. Frye was charged with driving without a license. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence. But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years.  A Missouri appeals court reversed the conviction but said it was powerless to insist that prosecutors there revive the old deal. Instead, the court said Mr. Frye could once again plead guilty or go to trial.  That was, Justice Ruth Bader Ginsburg said, a “futile remedy” that left Mr. Frye no better off. There was no reason to think a judge would sentence him to fewer than three years if he pleaded guilty again.  On the other hand, said Justice Samuel A. Alito Jr., a former prosecutor, proving that a defendant was driving with a revoked license is easy. “If there ever was a slam-dunk trial,” he added, “that seems to me that’s the slam-dunk trial.”  The second case argued Monday concerned Anthony Cooper, whose lawyer advised him not to plead guilty to assault with intent to murder although he had shot a woman four times. The lawyer, Brian McClain, said conviction was impossible since the bullets had struck the victim below her waist, and he persuaded Mr. Cooper to reject an offer of four to seven years.  The advice was incorrect. Mr. Cooper was convicted and is serving 15 to 30 years.  In both cases argued Monday, Justice Stephen G. Breyer said there might be some circumstances when concerns about fundamental fairness required courts to order that earlier plea offers be reinstituted.  In Mr. Cooper’s case, he wondered about what should happen if a defendant received a 50-year sentence after rejecting a plea deal for two years “where the misbehavior of the lawyer is crystal clear.” In Mr. Frye’s case, he mused about depriving “a person of his liberty for 40 years instead of six months because the lawyer, which he is guaranteed, fell down on the basic, fundamental, obvious duty of communicating the relevant plea agreement.”  Justice Scalia said trying to solve either problem would leave the courts “in the soup,” as Mr. Cooper had received a fair trial and Mr. Frye had entered a valid guilty plea.  Justice Kennedy echoed the first point in a rhetorical question of Valerie R. Newman, Mr. Cooper’s lawyer.  “You are saying it was unfair to have a fair trial?” Justice Kennedy asked.