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Do defendants have a remedy for ineffective plea bargains?

Do defendants have a remedy for ineffective plea bargains?

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Sometimes criminal defense attorneys mess up. But just what, if any, constitutional remedy is available to defendants when their attorneys are ineffective at the plea bargaining stage?

During recent oral arguments in the case Lafler v. Cooper, the justices of the U.S. Supreme Court appeared skeptical of a claim by a murder defendant  –  who rejected a plea based on an attorney’s bad advice and went on to be convicted by a jury – that he was entitled to constitutional relief.

The case involves a murder charge against Anthony Cooper, who allegedly shot a woman as she ran away from him. After a preliminary hearing, the prosecutor made a verbal plea offer of assault with intent to murder and a recommended 51 months in prison, which is below the sentencing-guidelines minimum.

Cooper was initially interested in the plea because he said, according to the record, that he “was guilty” but his lawyer told him that the prosecutor could not prove the requisite intent to murder element because the victim was shot below the waist. He said the prosecution would offer a better deal. The prosecution withdrew the plea offer.

The prosecution later offered a less favorable plea deal, which Cooper rejected.

Cooper went to trial and was convicted of assault with intent to murder, felony firearm possession, possession of marijuana and a habitual offender enhancement, and was sentenced to 185 to 360 months.

At a post-conviction hearing, Cooper argued ineffective assistance of counsel, saying that his lawyer’s advice that intent could not be proven with a below-the-waist injury was erroneous. The court rejected his argument, as did the Michigan Court of Appeals and the Michigan Supreme Court.

On Cooper’s habeas petition, the U.S. District Court for the Eastern Michigan granted Cooper’s writ, directing the state to offer Cooper the original plea deal or release him. The 6th Circuit affirmed, holding that Cooper met the ineffective assistance test under Strickland v. Washington: deficiency in representation that resulted in prejudice to the defendant.

The state sought certiorari from the U.S. Supreme Court, which agreed to hear the case.

The Court also agreed to hear a similar case, Missouri v. Frye, and scheduled it for oral arguments on the same day.

‘24-karat test of fairness’

At oral arguments Oct. 31, Michigan Solicitor General John Bursch argued that Cooper’s choice to gamble and lose did not amount to an ineffective assistance claim.

“Mere outcome is not the Strickland prejudice standard,” Bursch said.

Justice Anthony Kennedy pointed out that even if the attorney’s representation was deficient, that still doesn’t solve the problem of a lack of remedy – particularly in cases more severe than this.

“Suppose this were a death [penalty] case, with roughly the same facts,” Kennedy said. “Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?”

“There is no violation because in order to prove a Sixth Amendment violation you have to demonstrate unreliability of the adjudicatory process,” Bursch said. “I am also saying that there is no reasonable remedy.”

“Have you provided ineffective assistance of counsel if you are a lousy bargainer?” asked Justice Antonin Scalia.

“Under [Strickland], you would have to look at whatever the standards of professional practice were and, depending how lousy the bargainer was, it could or could not be deficient,” Bursch said. “But the important thing is if it didn’t have any effect on the subsequent trial and sentencing.”

“Suppose the defective advice causes the defendant to enter a plea that he would not have entered if he had been properly advised. Can he get relief?” asked Justice Ruth Bader Ginsburg.

“Absolutely,” Bursch said, prompting Scalia to chime back in, noting that Cooper got a full trial.

“It seems to me the difference is when you plead guilty you deprive yourself of the 24-karat test of fairness, which is trial by jury before nine people,” Scalia said. “When you don’t plead guilty you get what is the best thing in our legal system.”

Rolling the dice

Michigan Appellate Defender Valerie R. Newman stressed that the lower courts did not dispute that the attorney’s performance was ineffective.

“It is uncontroverted here that Anthony Cooper received incompetent advice from his counsel. It is uncontroverted here that as a result of that incompetent advice Mr. Cooper is serving between 100 and 134 months of extra time of imprisonment,” Newman argued.

Justice Stephen Breyer said he wasn’t necessarily ready to accept that concession.

“You have two courts in the state which have said this is not ineffective, [but] as I look at it it’s somewhat ambiguous at best,” Breyer said. Despite the concession, “both sides couldn’t make us decide a case by saying there’s a murder when in fact it’s not.”

Breyer wasn’t alone. “I might agree with him,” Justice Sonia Sotomayor said.

Newman said that was not at issue. “This claim was raised specifically on Sixth Amendment grounds from the very beginning of the appeal until it reached this Court,” she said.

Chief Justice John G. Roberts Jr. wondered if allowing Cooper’s ineffective counsel claim would encourage defendants to reject plea deals in order to try for a second bite of the apple later – or at least make it harder for judges to tell the difference.

“Some people will say, ‘I’m willing to take a chance. I am willing to roll the dice,’” Roberts said. “Other people will say, ‘No, that’s too much.’ [How] is a judge supposed to decide?”

“By looking at the evidence in the record before him,” Newman said.

“So the judge should decide whether he would take the deal?” Roberts asked. “[Should he] look at the evidence before him and say, ‘Boy, I would take that deal!’”

Newman noted that in the instant case, the allegedly incompetent lawyer told the judge in a post-conviction hearing that Cooper wanted to take the deal.

“It is beyond question in this case,” she said.

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