The 2011 Supreme Court Term is about to ramp up and there are several intriguing criminal cases set for argument. The cases I’m most curious to see the Court confront are the ones that have so far flown under-the-radar.
Let’s start with the ineffective assistance of counsel cases. IAC claims are the primary way that prisoners challenge their convictions and sentences; indeed, they make up the large majority of all claims filed on habeas corpus. Thus, in terms of broad sweep for the criminal justice, two of the most important cases this Term are Missouri v. Frye, No. 10-444 and Lafler v. Cooper, No. 10-209.
Both cases involve instances where defense attorneys must have been huffing glue. In Frye, the attorney failed to tell the defendant of an incredibly favorable plea offer from the prosecution that would have reduced the crime from a felony to a misdemeanor and allowed for a sentence of 90 days in jail. Since the defendant never learned of the plea offer, he went to trial and lost. A judge sentenced him to 3 years in prison. The advice given in Lafler was, well, laughable. The attorney there told the defendant that there was no chance of conviction to assault with intent to murder because the gunshots he fired struck the fleeing victim below the waist. Yes, where did that guy go to law school?
The main question confronting the Court is whether an attorney’s seriously deficient advice during a defendant’s decision to plead guilty or proceed to trial can establish the prejudice needed to succeed on an IAC claim.
The second question involves what remedy can courts employ when a defendant proves an IAC claim involving a decision to reject a plea agreement. If an attorney fails to mention a favorable plea deal of 5 years and the defendant goes to trial and is convicted and sentenced to 35 years, can a court reset the system, so to speak, and reduce the sentence to five years?
The case is interesting for a number of reasons. As a litigation matter, I was surprised to see the State and the Solicitor General advocate a rather extreme position. It doesn’t matter if a defense attorney provides unreasonable assistance at the plea bargaining stage, they contend, so long as counsel is competent during trial.
But that can’t be right. If it were, the whole line of cases saying that effective counsel is needed at every “critical stage” of the proceedings would be wrong. Additionally, while the Sixth Amendment’s purpose is to provide a fair trial, it does not follow that attorneys can do whatever they want as long as the defendant ultimately receives a fair trial. While I was not shocked to see that the State would make such a bogus claim, I was shocked to see the SG’s office join them.
The case is also interesting because of its potential impact. How the Court addresses these issues will have affect how attorneys go about advising defendants. For ten years, I reviewed criminal cases for IAC claims. The most common mistake I found was where attorneys advise, and erroneously so, defendants on the decision to accept a plea or go trial—a decision where defendants lean on the supposed “guiding hand of counsel” the most. Sometimes the attorney just didn’t take the time to review the sentencing ramifications, for example, by advising the defendant that if he went to trial he would only receive a 7-year sentence under the Guidelines, when, in fact, the guy was a Guideline career offender and would receive 25 years. Other times, I think the attorneys tried to drive defendants to reject a plea even where there was no defense because they could bill higher for a trial. And yet others would advise clients in a way to force a plea because maybe they were appointed by the court and they wanted the case finished.
I would bet that district courts will be following this case closely because the second question affects their discretion. It affects their ability to do justice in the appropriate case. I have to think that a decision limiting that ability would be unwelcomed by lower courts, often called on to right egregious wrongs on habeas.
No matter how the case is decided, it case promises to define or redefine how attorneys interact with their clients on the all-important decision of whether to plead guilty or go to trial.