Supreme Court Solidifies Right to Effective Assistance of Counsel during Plea Bargaining
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There are two primary movers in our criminal justice system: criminal prosecution and criminal defense. We have posted many pieces on this blog dealing with prosecutorial misconduct. We have called it a blight on our criminal justice system. While we have touched upon specific instances where a criminal defense attorney either did or failed to do something that resulted in a finding effective assistance by the courts, we have not approached the subject as the “dirty little secret” on our side of the adversarial criminal justice process. We will now.
Eighteen months ago Dr. Emily D. West, Research Director, Innocence Project, issued the findings of her study concerning the association between DNA exonerations and ineffective assistance of counsel: Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First DNA Exonerations. The results were disturbing: 54 of the first 255 DNA exonerations in this country involved ineffective assistance of counsel claims—44 of which were rejected by the courts. Of the remaining ten, the courts found that three of the ineffective assistance claims did not “harm” the client; one secured the assignment of new counsel; and the remaining resulted in a reversal of conviction.
The most common types of ineffective assistance of counsel clams found by Dr. West were:
- Failure to present a defense (often related to establishing/confirming alibi);
- Failure to seek DNA testing or have serology testing done to exclude client;
- Failure to object to prosecutor argument or to evidence introduced by the State;
- Failure to interview witnesses in preparation for trial or to cross examine State witnesses;
- Failure to investigate;
- Failure to object to identification procedures; and
- Failure to present expert testimony.
The reason Dr. West’s findings is so disturbing is because roughly 90 to 95 percent of all criminal defendants plead guilty, mostly through arranged plea bargains between defense counsel and the prosecutor. Virtually every defendant in a capital case must face a jury trial. The remaining defendants who plead not guilty can be placed in two categories: they are either innocent or are facing such lengthy prison sentences that a “plea deal” would still result in an unacceptable period of incarceration.
Today’s criminal defense attorney, particularly “appointed” counsel and “public defenders,” evolved out of the 1963 landmark decision by the Supreme Court in Gideon v. Wainwright which recognized the right of every “indigent” criminal defendant to have the assistance of counsel. Gideon itself actually evolved out of another landmark decision by the Supreme Court thirty years earlier: Powell v. Alabama, the famous Scottsboro Boys case, which recognized the right of a defendant in a capital case to have the assistance of counsel. Ten years after Powell the Supreme Court once again waded into the “right to counsel” issue in Betts v. Brady holding that under “special circumstances,” like those in Powell, non-capital defendants were also entitled to the assistance of counsel.
But it was Clarence Earl Gideon’s case that triggered the criminal defense attorney boon in our criminal justice system. Crime increased. Criminal defense attorneys increased. Law school enrollment skyrocketed. But the “clarion call of Gideon’s trumpet” soon fell on sour notes. Criminal trials were expensive, and time-consuming, especially for state prosecutors. And with the right to state-appointed counsel etched in constitutional stone, criminal defendants of all stripes began to exercise their right to a jury trial over pleading guilty. The guilty plea process fell on hard times, briefly. But prosecutors, being an ingenuous sort of breed, came up with what they believed was the ideal solution: plea bargaining. Prosecutors and defense attorneys would “talk shop,” examining the sentence exposure an indigent defendant was facing, the kind of evidence against him, and the need to avoid that expensive trial. Both sides allowed it to become an unspoken facet of American criminal justice.
It didn’t take long for plea bargaining to develop a seedy side as prosecutors became more threatening in their desire to secure a guilty plea. They told defendants either personally or through counsel that they could take the “deal” on the table or face the maximum sentence following conviction after a trial. Most defendants, with the blessing too many criminal defense attorneys, succumbed to these prosecutorial pressure tactics. Inevitably, some of the pressured guilty pleas were made by innocent defendants or defendants against whom the State had very little evidence. The right to a jury trial—recognized as a sacred constitutional right—was far too often cast into the gutter as the criminal justice system planted plea bargaining in the garden of evil.
Then in 1971, just eight years after Gideon, the U.S. Supreme Court handed down yet another precedent setting ruling: Santobello v. New York. The defendant in that case withdrew two not-guilty pleas and entered a guilty plea to a lesser-included offense after negotiations with a prosecutor. In exchange, the prosecutor agreed to make no recommendation as to the sentence, leaving the decision to the Court. At sentencing several months later a new prosecutor recommended that the court impose the maximum sentence, which the court did. Feeling the chafe of a raw deal, the defendant tried to withdraw his guilty pleas but the court refused to allow him to do so. The case worked its way to the High Court, and led by Chief Justice Warren Burger, the Court remanded the case back to the trial court with instructions that the defendant either be sentenced pursuant to the original plea bargain or be allowed to withdraw his guilty pleas. The Court pointed out, quite frankly, that plea bargaining had become an “important” component of the criminal justice system for many reasons and should be encouraged and that for the system to work justly, prosecutors should be held to their agreements. The Court simply wanted prosecutors and defense attorneys to know it expected the terms of plea bargains be fully honored.
An inevitable, and certainly foreseeable, consequence of the now legitimized plea bargaining process was an increase in ineffective assistance of counsel claims; primarily by defendants who claimed their attorneys gave them bad advice to plead guilty when proper representation would have produced a different result at a trial. The federal appellate circuits adopted a litany of standards to judge the merits of ineffective assistance claims. This necessitated the Supreme Court to once again impose its will in a right to counsel case. This occurred in 1984 when the Court handed down Strickland v. Washingtonwhich held in order to secure a reversal of a criminal conviction based on ineffective assistance, the defendant must establish that his attorney’s performance fell below recognized standards of reasonableness, and if deficient performance is established, the defendant must then prove that he was so prejudiced by the performance that the result in the case is either unreliable or fundamentally unfair. The following year the Supreme Court in Hill v. Lockhart extended the Strickland prejudice component to guilty plea cases raising ineffective assistance of counsel: that to establish prejudice, a defendant who pled guilty must prove that “but for” defense attorney’s deficient performance, there is a “reasonable probability” the defendant would not have pled guilty and would have insisted on a trial.
The courts were not receptive to “ineffective assistance claims” prior to Strickland, and the two-pronged inquiry mandated by Strickland made it even easier and more convenient to summarily dismiss these claims, as reflected in Dr. West’s study. Bad lawyering, especially in death penalty cases and particularly in Harris County, became an accepted practice in the criminal justice system (here). Criminal defendants involved in the plea bargaining process became routine victims of this bad lawyering, aggravated even more by the routinely accepted practice of prosecutorial misconduct.
That’s why the two decisions, Lafler v. Cooper and Missouri v. Frye, handed down by the Supreme Court this past March 21st are the most significant decisions in right to counsel cases in nearly 50 years. Wesley M. Oliver, law professor at Widener University, told The New York Times that “the Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.” Both cases deal with the way defense attorneys handled plea bargain negotiations: In Frye, defense counsel did not inform the defendant of an initial lenient plea offer which lapsed forcing the defendant to ultimately plead guilty for a more severe sentence; whereas, in Cooper, defense counsel reported a plea offer to the defendant but advised him not to take it, resulting in a harsher sentence following a trial. The issue the Court faced in both cases is whether a criminal defendant enjoys a right to effective assistance of counsel in the plea bargaining process; and, if so, what must a defendant show to demonstrate “prejudice” under the Strickland inquiry.
By the time Cooper arrived at the Supreme Court there was a “concession” among the parties that defense counsel’s representation had been deficient. The bare facts of the case are: In March 2003, for reasons never fully explained, Anthony Cooper put a gun to the head of Kali Mundy and pulled the trigger. There was some hint at trial that he may have been acting in self-defense. In any event, the bullet missed and Mundy fled with Cooper chasing after her, firing repeatedly. Bullets struck Mundy in the hip, buttock, and abdomen but she survived. Cooper was charged under Michigan law with assault with intent to murder, possession of a firearm by a felon, use of a firearm during a felony, misdemeanor marijuana possession, and for being a habitual offender.
The prosecution on two occasions offered a deal of a sentence of 51 to 85 months on two of the charges in exchange for a guilty plea. Cooper communicated with the court that he was guilty and willing to accept the State’s offer. However, Cooper rejected the plea offer on the advice of counsel who convinced Cooper that the State could not establish intent to murder Mundy because she had been shot below the waist. Of course, it didn’t work out that way: Cooper was convicted at trial of all counts and subsequently received the mandatory minimum sentence of 186 to 360 months. Cooper immediately appealed, claiming ineffective assistance because of counsel’s advice to reject the plea offer. The Michigan appellate courts assumed the narrow position that since Cooper had “knowingly and intelligently” rejected the two plea offers, there could have been no ineffective assistance.
Cooper then turned to the federal court system with an initial habeas corpus application to the district court where he faced an enormous statutory hurdle faced by every state prisoner trying to present an alleged constitutional violation under 28 U.S.C. § 2254: that pursuant to the harsh Anti-Terrorism and Effective Death Penalty Act of 1996, federal courts must apply a “presumption” that state courts properly heard and applied the correct law in rejecting the alleged constitutional violation. The federal district court found that the Michigan appellate courts had “unreasonably applied the constitutional standards for ineffective assistance of counsel” as established in Strickland and endorsed by Hill. The federal district court conditionally granted Cooper habeas relief: the court ordered the state trial court to sentence Cooper to a 51 to 85 month sentence as initially offered to him by the State. The Sixth Circuit upheld the district court’s decision, finding that Cooper’s attorney had performed deficiently by advising Cooper of an “incorrect legal rule,” resulting in prejudice because Cooper had “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him.”
The Supreme Court telescoped its prejudice inquiry as follows: “In contrast to Hill, here the ineffective advice led not to an offer’s acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudiced alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.”
Put simply, the Sixth Circuit unequivocally adopted the Strickland prejudice test to be applied in situations involving rejected plea bargains—a decision consistent with the majority of the other federal circuits (including the Fifth Circuit) which had confronted the role of counsel in the plea bargaining process and reached similar conclusions. The Supreme Court embraced this approach—an approach that rejected the State’s argument that there could be no Strickland prejudice in the pre-trial plea bargaining process if a defendant is convicted following a fair trial. The State presented three reasons for its suggested approach:
- That the purpose of the Sixth Amendment is to protect the right to a fair trial which should not extend to pre-trial errors unless those errors impact the fairness of a trial.
- That the Strickland prejudice test in the guilty plea process requires a showing of a denial of a substantive or procedural right.
- That the purpose of the Sixth Amendment is to preserve a criminal conviction whose reliability is based on a fair trial.
The Court was not persuaded by this narrow interpretation of either the Sixth Amendment or the Strickland prejudice inquiry. Here is the way the Court framed its refusal to embrace the State’s position: “In the end, [the State’s] three arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas … As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences. (‘[I]t is insufficient simply to point to the guarantee of a fair trial as a backdrop that inoculates any errors in the pretrial process’).” [Emphasis supplied]
Having firmly established the right to effective legal representation applies equally to the pre-trial process as to the trial process, the Court then tackled the appropriate remedy when a criminal defendant elects to reject a plea bargain on the advice of counsel, proceed to trial, and ends up with a more severe sentence. Citing its long-standing jurisprudence that remedies for constitutional violations must be “tailored” to accommodate competing interests, the Court spelled out the remedy for cases like Cooper:
“The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
“In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s discretion after trial, a resentencing based on the conviction at trial may not suffice … In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”
The Court pointed out that future state and federal cases, as well as statutes and rules, would guide the lower courts in the exercise of their discretion, but there were two overriding factors the courts must consider: “First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made.” In this case, the Supreme Court stated the correct procedure would be for the State to re-offer the plea agreement.
In the Frye case, the defendant, Galin Frye, was charged in August 2007 with driving with a revoked license. Since Frye had three prior convictions for the same offense, the State of Missouri charged him with a class D felony which carried a maximum term of imprisonment of four years. In November the prosecutor, in a letter, informed Frye’s attorney that he was willing to offer Frye a choice of two plea bargains. The first deal would have required Frye to plead guilty to a felony in exchange by the prosecutor recommending a 3-year sentence without a recommendation for probation but with a recommendation that Frye serve 10 days in jail as “shock” time. The second deal would have allowed Frye to plead guilty to a reduced misdemeanor charge and the prosecution would recommend a 90-day sentence with the caveat that any future misdemeanor driving without a license would carry a maximum term of one year. The prosecutor’s letter cautioned Frye’s attorney that the plea deals would expire on December 28. Frye’s attorney never advised Frye about the plea deals being on the table and thereby allowed them to lapse.
Frye’s case was scheduled for a preliminary hearing on January 4, 2008, but on December 30 he was again arrested for driving with a revoked license. He waived his right to a preliminary hearing and was arraigned at which time he pled not guilty, which he later changed to a guilty plea without any agreement. The prosecutor recommended a 3-year sentence, made no recommendation about probation, and requested 10 days of “shock” time in jail. Instead the trial court imposed a three-year term. Frye appealed, and the Missouri Court of Appeals found that Frye had established both prongs of the Strickland test. The appeals court set aside Frye’s guilty plea and remanded the case to the trial court with instructions that Frye could either insist on a trial or plead guilty to any offense the State deemed appropriate to charge.
The Frye case arrived at the Supreme Court with a question about whether the Missouri appeals court had applied the proper analysis regarding whether defendant suffered prejudice because of counsel’s deficient performance. The Court once again summoned up its long-standing jurisprudence that the Sixth Amendment guarantees a criminal defendant the right to counsel at every “critical” stage in the criminal proceedings. The Court cited Hill and its more recent 2010 decision in Padilla v. Kentucky to find that the right to effective counsel extends to the plea bargain context.
Hill established that the two-part Strickland test governs ineffective assistance claims in plea bargain negotiations. The Hill Court bypassed the deficient test and went directly to the prejudice component, finding that the defendant had not alleged (or shown) “but for” counsel’s deficient performance he would have pled not guilty and proceeded to trial. Thus, the Court denied relief because no prejudice had been demonstrated. Padilla, on the other hand, focused on counsel’s “duties” to properly advise a defendant with respect to a plea offer which leads to a guilty plea. Padilla’s counsel had misinformed Padilla about the immigration consequences flowing from a criminal conviction. The Court set aside Padilla’s guilty plea, and in so doing, rejected the State’s argument that a “knowing and voluntary plea supersedes errors by defense counsel.”
The Frye Court, however, said that Hill/Padilla did not adequately address the issue presented in Frye because Hill/Padilla dealt with cases where the guilty pleas were alleged to be invalid because counsel provided incorrect advice pertinent to a guilty plea, whereas in this case the advice was accurate but counsel’s conduct prior to the plea regarding possible plea offers was deficient. Put simply, Frye had to address the issue of counsel’s failure to communicate plea offers prior to the guilty plea. The Frye Court underscored the distinction as follows (echoing Cooper):
“ … The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours ‘is for the most part a system of pleas, not a system of trials,’ (quoting Cooper), it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. ‘To the extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system: it is the criminal justice system.’ ‘[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.’ In today’s criminal justice system, therefore, the negotiation of a plea, rather than the unfolding of a trial, is almost always the critical point for a defendant.
“To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. ‘Anything less … might deny a defendant “effective representation of counsel at the only stage when legal aid and advice would help him.’””
The difficult task before the Frye Court, then, was how to define the duties and responsibilities of the defense attorney in the plea bargain process. The Court elected to skirt most of the task, leaving it to some future case: “Here the [sole] question is whether defense counsel had the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.” The Frye Court succinctly put its stamp on that question:
“This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”
Having established a per se rule of ineffectiveness by counsel’s failure to disclose a plea offer to the defendant, the Court then described the measure of Strickland prejudice that must be shown to secure relief:
“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.”
Cooper and Frye are incredibly significant not only in their holdings but in the message they send to the legal profession; specifically, plea bargaining is a permanent fixture in our criminal justice system and all the parties involved in that process have “duties and responsibilities” that must be met. How much, if any, impact these decisions will have on heavy-handed tactics by prosecutors to coerce and threaten defendants into pleading guilty is, at this juncture, anyone’s guess.
Critical stage defined in United States v. Wade, 318 U.S. 218, 227-28 (1967). Critical stages include arraignments [Hamilton v. Alabama, 368 U.S. 52 (1961)]; post-indictment interrogations [Massiah v. United States, 377 U.S. 201 91964)]; post-indictment lineups [Wade, supra],; and the entry of a guilty plea [Argersinger v. Hamlin, 407 U.S. 25 (1972)].
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
MISSOURI v. FRYE: Counsel did not inform defendant of favorable plea offer that lapsed. The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. That right applies to “all ‘critical’ stages of the criminal proceedings.”
LAFLER v. COOPER: Favorable offer rejected on inaccurate advice of counsel. Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed