This month, the U.S. Supreme Court granted cert in two related plea cases addressing ineffective assistance of counsel, Lafler v. Cooper (No. 10-2009) and Missouri v. Frye (No. 10-444).
In both cases, there is no question that counsel’s performance was deficient. In both cases, the defendants received relief in the lower courts and the state sought review in the Supreme Court. While the cases will be addressed separately, the Court ordered the parties in both cases to brief “[w]hat remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?”
Cooper is a Section 2254 case involving a Michigan state conviction. Michigan charged Cooper with several crimes, including assault with intent to murder. After the preliminary hearing, the state made an offer to Cooper’s counsel: Cooper could plead guilty to assault with intent to murder and face a below-guidelines minimum sentence of 51 to 85 months. Counsel advised Cooper to reject the deal based on a misunderstanding of Michigan law. Cooper followed his advice and the jury convicted him at trial. Cooper does not allege any mistakes at trial; rather, the issue is whether he is entitled to relief because he relied on his attorney’s bad advice, even though the resulting trial and sentencing hearing were constitutionally fair.
The state contends that the Sixth Amendment right to the effective assistance of counsel is for one purpose: “to ensure a fair trial for the criminally accused. The kind of prejudice suffered by Cooper cannot form the basis for relief under the Sixth Amendment because his conviction was obtained after an admittedly fair and reliable trial.”
Frye is a review of a Missouri state conviction. Missouri charged Frye with felony driving while his driving privileges were revoked. Before the preliminary hearing, the state conveyed an offer to Frye’s attorney, offering to allow Frye to plead guilty to misdemeanor driving while revoked. The offer was only good until a week before the preliminary hearing. Counsel never conveyed the offer to Frye, who ultimately entered a plea to the original felony charge. Frye did not learn of the offer until after he was convicted, and on post-conviction maintained that he would have accepted the offer if he had known about it.
As in Cooper, the state argued in its petition for writ of certiorari that the Sixth Amendment’s protections do not apply. The state asserts that Hill v. Lockhart, 474 U.S. 52 (1985), does not apply, because it is limited to cases in which, but for counsel’s error, the defendant would have gone to trial. Frye, in contrast, seeks to enter a plea agreement with a better deal, not go to trial.
In both cases, the state seeks a very narrow interpretation of Strickland v. Washington, 466 U.S. 688 (1984), applying it to trial only. Under the state’s theory in both cases, Strickland does not apply to pre-trial proceedings or sentencing. As Professor Michael O’Hear recently blogged, “that can’t be right.”
The majority of cases are resolved by pleas. The idea that that process may not be subject to analysis under Strickland seems a little outrageous. How can it not be? Are we really saying that a defendant whose attorney fails to convey an offer or who misadvises him about that offer just has to live with his attorney’s mistake?
In a form over substance argument, the state seeks to create a distinction between trial and everything else, particularly sentencing. The problem is that one cannot be divorced from the other. The fairness of the sentence is based on the fairness of the proceedings that lead up to sentencing, whether it is a trial or a guilty plea hearing. Counsel’s performance at sentencing is equally important to his or her performance at trial. As a result, there must be some remedy for the defendant who relies on his attorney to do his or her job by conveying offers and properly interpreting the law.
Amelia L. Bizzaro is the principal at Bizzaro Law LLC and dedicates her practice to state and federal post-conviction and appellate work. She is on the board of directors for the Wisconsin Association of Criminal Defense Lawyers, a member of the state bar’s appellate practice section and is co-chair of the Milwaukee Bar Association’s Bench/Bar Court of Appeals Committee. The Wisconsin Law Journal named her one of 2010’s Up and Coming Lawyers.