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Frye and Cooper: the aftermath

Your client tells you up front that the charges against him are bogus.  "Don't even talk to me about a deal," he tells you.  "I want a trial."  At the first pretrial, the prosecutor admits he'll have a tough time making a felony case.  "I can't get it dismissed," he tells you, "but I can probably get you a misdemeanor if your guy will plead to it."  Do you tell your client about the plea offer?

I might have given a different answer two weeks ago.

As we discussed yesterday, last week, in Missouri v. Frye and Lafler v. Cooper, the Supreme Court greatly expanded the potential for ineffective assistance of counsel claims arising out plea bargaining.  Frye involved the situation suggested above -- his attorney hadn't told him about a favorable plea offer.  Cooper's attorney had given him bad legal advice, which led Cooper to choose to go to trial, where he was convicted and got four times as long a prison sentence as he would've gotten if he'd taken the deal.  Today, we're going to discuss how those decisions impact the criminal justice system in three respects:   how the duty of the attorney has been changed, how defense attorneys, courts and prosecutors will react to those changes, and the remedy for violations.

The duty.  Neither case discusses this in much detail.  The violation of the duty was pretty clear in Frye; failure to communicate a plea offer is not only ineffective assistance, but an ethical violation.   The state stipulated in Cooper that the duty had been breached.

But given the newfound emphasis on plea bargaining as a separate phase of the criminal justice system -- one which Justice Kennedy, the author of the 5-4 opinion in both cases, labeled a "system of pleas, not of trials" -- is there a heightened duty?  Take the scenario above:   despite the fact that the client specifically instructed you not to even discuss a deal with him, I think Frye requires you to do so.  But let's go beyond that:  do you have a duty to work out a deal?  The majority opinion in Frye notes that plea bargaining is often a matter of an attorney's "personal style."  One "style" is to be a hard bargainer, going to trial rather than accepting all but the most favorable pleas, with the idea that eventually you'll be offered more favorable deals at the outset.  As Scalia's dissent points out, this poses the possibility that a lawyer could be deemed to have compromised a client's constitutional rights so that he can get better deals for future clients, and asks, "does a 'hard-bargaining personal style' now violate the Sixth Amendment?"

That's probably a stretch, but it's easier to see how Cooper presents problems for the attorney.  Cooper's attorney had advised him to go to trial because he wrongly believed the law precluded an acquittal.  But what if the attorney's recommendation to go to trial had been based on a misreading of the evidence, instead of the law?  Except in capital cases, courts have been loathe to find ineffective assistance in failing to fully investigate a case.  If a witness the lawyer didn't interview gives extremely damaging testimony at trial, can the defendant claim that his lawyer's advice to go to trial was ineffective because, had the lawyer interviewed the witness and known how bad the testimony would be, the lawyer's recommendation would've been different?

The reaction.  Given the heightened importance of the plea bargaining stage, we can anticipate that defense lawyers, judges, and prosecutors will place much greater emphasis on it.  A few judges here routinely hold a hearing in advance of trial where the plea offer is read into the record, and some lawyers insist on having that done just prior to trial.  I think that is going to become commonplace now; there isn't going to be a case that goes to trial with the defendant uncertain as to what the plea offer is. 

That's not necessarily going to completely eradicate the problem, though; the plea offer may have changed over time, and the defendant may argue that he wasn't informed of an earlier one.  Prosecutors may attempt to curtail that problem by having all plea offers reduced to writing, but that's of limited value; they have no right to demand that they be informed as to whether the offer was communicated to the client, or what his response was.

The Cooper scenario is more problematic, because it gets into attorney-client discussions that should remain privileged.  One of the unfortunate tendencies now is for lawyers to indicate just prior to trial or at a hearing on the plea offer that they've recommended the client accept the offer.  This really shouldn't be done, because you're essentially throwing the client under the bus:  you've just communicated to the judge that (a) you think your client's going to get convicted, which the judge will interpret as you believing your client's guilty, and (b) he's the asshole that's wasting the judge's time, not you.  I wouldn't be surprised, though, if more lawyers started doing that.  One thing's for sure -- I think most lawyers are going to be much more reluctant, in the post-Cooper landscape, to advise a client to go to trial if there's any risk involved in doing so.

The remedy.  This is the biggest problem with both cases.  The normal ineffective-assistance claim presents the task of envisioning an alternate universe, one in which the defendant's trial was not marred by attorney error, in an attempt to determine how that error affected the trial.  Here, though, we don't have a trial to examine (or if we do, as in Cooper, it's irrelevant).  Instead of trying to determine what a jury would have done, we're trying to determine what the defendant would've done.  Would Frye have chosen to plead if he'd been told of the plea offer?  Would Cooper have chosen to plead if he hadn't been given incorrect advice regarding his chances at trial?  And this is further complicated by two factors.  First, up until the plea is made the prosecution has the right to rescind the offer, and even then the judge has the discretion to refuse to accept it.  Secondly, the defendant has the benefit of hindsight.  You think any defendant in that situation is going to say, "Sure, I'm doing ten years in prison instead of the two I would've done if I'd pled, but even knowing that, I'd still go to trial"?

For those reasons, the portions dealing with the remedy are the weakest part of the opinions.  Frye's success is in all likelihood ephemeral.  The Court remands the case for the Missouri court to determine whether the prosecutor would've withdrawn the plea offer prior to the hearing, or if the judge would have refused to accept the plea, pointedly noting that six days before the hearing at which the plea would have been taken, Frye was arrested on the same charge in a new case.  The remedy in Cooper is frankly bizarre:  the state has to reoffer the plea, but if Cooper takes it, the trial court can

exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.

This reflects the trial court's abundant discretion in deciding whether to accept a plea, but it borders on making Cooper irrelevant.  The trial court is operating with the benefit of hindsight, too:  it knows that the defendant was convicted after a fair trial.  Should a trial court's exercise of discretion in this regard be measured by what it knew at the time the plea would have been entered, or what it knows now?  If, for example, assume the defendant testified at trial, and the judge believed he lied, and gave a harsher sentence on that basis.  The case is reversed on ineffective assistance grounds under Cooper, the plea is reoffered, and the defendant takes it.  Can the judge cite the defendant's lying at trial -- a trial that shouldn't have taken place -- as a reason for giving a higher-than-normal sentence?

Frye and Cooper are largely an extension of the Supreme Court's recognition two years ago in Padilla v. Kentucky of the heightened importance of plea bargaining in the criminal justice system.  But with that importance comes a substantial expansion of the attorney's duty to his client:  the duty in Padilla to recognize and advise on collateral consequences of a plea, and in Frye and Cooper to communicate with the client and give him accurate advice on whether to plead.  There are a lot of kinks to be worked out, but it's a new day.

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