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"A system of pleas..."

Nobody disputed that Anthony Cooper got bum advice from his lawyer.  Cooper was charged with murder, and was looking at 15 to 30 years in prison.  The prosecution offered him a deal which would've resulted in a recommendation of 4 to 7 years, but Cooper turned it down on the advice of his lawyer, who believed that the law precluded Cooper's conviction because the victim had been shot below the waist.  Cooper went to trial instead, and learned to his sorrow that the law didn't preclude his conviction on those facts, his sorrow substantially enhanced by a sentence nearly four times greater than he would've gotten if he'd copped a plea.

The lawyer for Galin Frye made an error of omission, rather than commission.  Frye was charged with driving with a revoked license, which he'd been convicted of doing on three prior occasions.  That made this one a felony, but the prosecution offered to reduce it to a misdemeanor, with a recommended 90-day sentence.  Frye's lawyer never advised him of the offer, and Frye wound up pleading guilty to the felony, and being sentenced to three years in prison.

Last week, in Lafler v. Cooper and Missouri v. Frye, the Supreme Court in twin 5-4 decisions held that both Cooper and Frye had shown their attorneys had rendered ineffective assistance.  We'll take a look at the decisions today, and tomorrow we'll discuss how they could impact the criminal justice system.

It wasn't an easy result.  Frye at least had the benefit of numerous cases holding that failure to convey a plea offer does constitute ineffective assistance, and in Cooper's case the state had conceded that his attorney's performance was deficient.  But deficient performance is only the first prong of the test for ineffective assistance laid down in Strickland v. Washington.  The second prong is prejudice, that there is a "reasonable probability" -- defined as sufficient to undermine the confidence in the outcome -- that there would be a different result, and here both defendants ran into trouble.  Frye certainly lost the benefit of his bargain, but the prosecution has a right to withdraw a plea offer at any point prior to the entry of the plea, which they most certainly would've done in Frye's case -- two days after the offer expired, but six days before the hearing at which he would've entered it, he got arrested again on the same charge.

Cooper's situation was arguably worse.  Whatever shortcomings his attorney had in knowing the law, there was no allegation that he performed deficiently once the trial started; Cooper had a fair one, and Scalia's dissent argues, with some justification, that guaranteeing a fair trial is the whole purpose of the right to counsel.

To be sure, the Court had in the past analyzed the right to counsel in more than simply the context of a trial.  Strickland, in fact, had involved a plea, although the ineffective assistance issue was raised in connection with the defense counsel's failure to present certain evidence in the mitigation hearing.  In Lockhart v. Hill and Padilla v. Kentucky, the Court had considered the issue of whether counsel had rendered ineffective assistance in regard to the plea, but in both cases the focus was again on the fairness of the result:  in Lockhart, whether the plea was rendered invalid by the attorney's incorrect advice regarding parole eligibility (no), and in Padilla by incorrect advice regarding immigration consequences (yes.)  In Cooper, though, unlike Hill and Padilla, as the opinion acknowledged, "the ineffective advice led not to an offer's acceptance but to its rejection."  This is a significant distinction.  The dissent argues, with some merit, that while plea bargaining had been regarded as a "critical stage" of the criminal process, it was the acceptance of the plea that was the critical stage.

But the majority brushes away the dissent's contention that "a fair trial wipes clean any deficient performance by defense counsel during plea bargaining," points to the fact that well over 90% of all cases in state and Federal courts are resolved through pleas, and concludes that "[the dissent's] position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials."  Thus, the criminal justice system is not merely one single process resulting in a trial or plea, but two intertwined processes, ones that will be evaluated independently.

This isn't quite as revolutionary a development as the dissent makes it out to be; the majority opinion cites numerous Federal and state cases which reached similar results in similar situations.  Of course, there's a huge difference between walking into court and arguing an ineffective assistance claim based on a decision from an Indiana court of appeals and the Federal 10th Circuit, and walking into court with a Supreme Court decision backing you up.  The dissent notably doesn't cite any decisions going the other way, but if there were, they don't matter any more.

And note that neither defendant gets a complete win; both are remanded back to the lower courts for a determination of prejudice.  In Frye's case, that means determining whether the state would've withdrawn the plea, or the judge would've refused to accept it; in Cooper's, whether he would've pled guilty if he hadn't been given incorrect advice about his chances of success at trial.

But it's hard to understate the significance of Cooper and Frye.  Essentially, the decisions force the focus of ineffective assistance claims not only on how counsel performed when he was before the court, either in trial or on a plea, but on his interactions with his client during the time before trial.  We'll talk about how that can impact the practice of law tomorrow.

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