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Lafler revisited

Perry Mason.jpgYou just can't please some people.  Michael Marsh is one of those people.  Marsh was charged with what's known in the trade as "aggravated shoplifting":  after helping himself to some merchandise at Walmart, Marsh was accosted outside by an employee, whose discomfiture at making a dollar more than minimum wage was possibly assuaged by Walmart's giving him the lofty title of "asset protection associate."  Marsh did not go quietly into that good night, and the resultant scratch on the associate's hand earned Marsh an indictment for second degree felony robbery.

At the two pretrials in the case, and just before jury selection, the State offered Marsh a deal:  he'd plead to the indictment, and the State would recommend the minimum two year prison sentence.  Not exactly a magnanimous offer, but given Marsh's prior exposure to the criminal justice system -- two felonies involving drugs, a CCW, and a bevy of misdemeanor theft convictions -- and the fact that the present case was pretty much airtight, not bad, either.  All this was placed on the record, and before the jury was brought up, the judge pointedly suggested to the defense attorney that "you have some more discussion with your client."  They did, with the upshot that Marsh asked for another attorney.

With the jury waiting in the wings, that was a non-starter, and the court denied the request, telling Marsh that he was lucky to have been offered the plea that was on the table.  The case went to trial, and it took the jury all of 38 minutes to convict Marsh, and the judge a bit less than that to send him to prison for six years.

So what did Marsh claim on appeal?  That it was his lawyer's fault for telling him at one point that the case was "possibly winnable."  That, according to the sole assignment of error, "caused the Appellant to reject a favorable plea bargain offered by the prosecution, thereby resulting in a guilty verdict and sentence to a term of years much longer than was offered by the prosecution."

This is based on last year's Supreme Court decision in Lafler v. Cooper.  I discussed that extensively here, but the short version is that Cooper's attorney gave him woefully bogus advice, causing Cooper to reject a plea deal which would have given him 4 to 7 years in prison, and Cooper instead wound up with a sentence after trial nearly four times that. 

Marsh's effort to ride that pony all the way into town comes a cropper in the 12th District's decision a couple weeks back in State v. Marsh  The parties in Lafler had stipulated that the attorney's performance had been deficient.  (He'd told Cooper that he couldn't be convicted of attempted murder because all of the bullets had struck the victim below the waist, thus supposedly negating an intent to kill.)  The panel in Marsh notes that no such stipulation was made here, and that even if counsel told Marsh that the case was "possibly winnable" (and there was nothing in the record that he did), "such a statement is not equivalent to definitely winnable or even likely winnable."  In fact, what the record did show was that "counsel advised [Marsh] that the trial was not likely to end well," and "the trial court advised him how favorable the plea was under the circumstances of the case." 

Take a closer look at that last sentence, because I think it highlights some of the problems with Lafler and with Missouri v. Frye, the decision issued the same day last year reversing a conviction because a lawyer hadn't told his client of a favorable plea offer.  Justice Kennedy, who wrote both of the 5-4 majority opinions, recognized that the criminal justice system had become "a system of pleas."  Well, it had actually been that for at least the past 40 years, when the drug war started in earnest and courts became inundated with criminal cases.  It's just that Lafler and Frye mean we have to pay more attention to that.  It wasn't uncommon for a judge two years ago to go to trial without having any idea of what the plea offer was.  That doesn't happen anymore; now the judge will conduct a hearing at some point in time just to put the plea offer on the record.

Or more.  Go back to that last line I quoted, about how "the trial court advised him how favorable the plea was under the circumstances of the case."  Two observations.

First, you have the trial judge and your own lawyer telling you that you've got a crappy case, with little to no chance of winning at trial.  Five gets you ten that if he had pled, Marsh would have contended on appeal that he was pressured into doing so.  And the judge's statement gives that argument some legs.  That's something I've mentioned before:  it's easy for a judge to get carried away at a Frye hearing, and move from making sure that the defendant knows what the plea offer is to evaluating the merits of it.

Second, this shows what a bind Lafler puts the defense attorney in.  Just how far do you go in communicating to the client your evaluation of his prospects at trial?  If you tell him he has a 50-50 shot at acquittal and somebody later concludes that it was more like 20-80 -- based, of course, on the evaluation of evidence which actually came out at trial, something you didn't have when you gave the advice -- does that mean there's a Lafler problem?  Should you get everything in writing?  How specific should you be?  It's not unusual for a client to interpret a negative evaluation of his chances as a lack of zeal on your part in representing him; how do you walk the tightrope between being candid and convincing him that you're working hard for him?

Here's one more observation:  At this point, I think it's going to be a lot more uncommon for a lawyer to recommend that the client reject the plea offer.

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