Tag: Lafler v. Cooper

Second Thoughts on The Lafler/Frye Motion

April 12th, 2012

Last week, in a blog entitled "DOJ's Lafler/Frye Motion Goes Too Far," I expressed a strong objection to that prong of the DOJ application that requests that the defense lawyer submit an ex parte document signed by him and the defendant explaining defense counsel's reasoning for rejecting a plea. See here.

I, however, found "generally unobjectionable" the request that the defense lawyer report the plea offer and its rejection in open court. I have, upon reconsideration, changed my mind somewhat and come to the conclusion that plea offers and rejections should not be announced in front of the judge. Rather, any necessary record should be made in writing and not made public, if at all, until the case has been concluded. Such a procedure should amply satisfy DOJ's desire to avoid or minimize post-conviction attacks based on a failure to advise (but admittedly not a failure to give adequate advice).

I fear that if plea offers were to be publicly announced, it could affect the severity of some offers, put arguably inappropriate material before the court, and lead to occasional posturing by both prosecutors and defense lawyers. A prosecutor who is concerned about the legal sufficiency of her case might be hesitant to offer a seemingly lenient plea because she fears that a low plea offer might signal the weakness of her case to the judge, who in the event of a trial, will rule on sufficiency, and perhaps even be the trier of fact. Indeed, she might make an exceedingly harsh offer or no offer at all in the hope that the judge be led to believe she feels she has a strong case. Somewhat similarly, a defense lawyer's announced rejection of a lenient plea, especially if unaccompanied by commentary about the lack of merit of the prosecution, might convey to the triers of fact, the judge or in highly-publicized cases potential jurors, a message that the prosecution case is weak.

Additionally, a prosecutor's failure to offer what a judge believes is a reasonable plea offer or a defendant's rejection of such a plea might well have an adverse effect on a judge with an especial concern in processing cases quickly or keeping his workload in check.

For these and other reasons, most, perhaps all, federal courts prohibit a judge from engaging in plea discussions. (See Fed.R.Crim.P. 11(e)(1): "An attorney for the government and the defendant's attorneys . . . may discuss and reach a plea. The court must not participate in those discussions . . . .") Arguably, a judge's silent awareness of a plea offer and rejection may not be considered "participation," but that is a thin distinction.

Of course, in some jurisdictions, such as New York state courts, judicial involvement in plea bargaining is the norm.

(goldman)
Frye/Cooper Decisions Likely Not To Be Of Great Significance

April 5th, 2012

Supreme Court decisions in new areas of criminal law often lead professors and practitioners to predict startling changes in the legal landscape. Regarding the Frye and Cooper decisions I discussed earlier this week, Widener Law Professor Wesley M. Oliver told the New York Times that these cases "constitute the single greatest revolution in the criminal justice system since Gideon v. Wainwright . . . ." See here. I do not agree.

While I do expect that there will be some formalistic change in plea offer procedures so that offers will routinely be made in writing or on the record, I do not expect that these decisions will ultimately provide great benefits to many defendants or great detriments to many prosecutors. Most courts had already recognized that ineffective assistance arises when a defense lawyer fails to communicate a plea offer or gives incompetent advice regarding whether to accept it. True, Frye/Cooper allows, but does not mandate, relief even after trial for such ineffective assistance. And, there probably will be an increased number of post-trial petitions concerning alleged failures of counsel to communicate favorable pleas or competently advise whether to accept them. However, few of these challenges are likely to be ultimately successful.

Indeed, the obstacles set forth by the Supreme Court for a defendant convicted after trial to succeed are substantial. The defendant must demonstrate that the plea offer that counsel failed to communicate was both a formal and favorable one or that counsel gave constitutionally inadequate advice concerning it, that the defendant would have accepted the offer if it had been presented properly, that the offer would not have been cancelled by the prosecutor prior to execution and that the offer would have been accepted by the judge. Then, even if the prosecutor is required to reoffer the plea proposal, the judge may in her discretion sentence the defendant according to the conditions in the deal, to the same sentence he received after trial, or somewhere in between. Thus, even if the Court finds that the defendant was unconstitutionally deprived of a fair opportunity to accept a proffered plea offer, the defendant may ultimately receive the very same sentence he received after trial — essentially no relief at all.

Justice Scalia in his dissent in Cooper found it "extraordinary" that the remedy for an unconstitutional conviction "should ever be subject at all to the trial judge's discretion," and that a "remedy could ever include no remedy at all."

Justice Scalia suspects, so he says, that the "squeamishness" in fashioning a remedy and the "incoherence" of the remedy provided is attributable to the majority's inner recognition that in fact there is "no real constitutional violation." I suspect that it is a compromise to secure a five-vote majority.

(goldman)
DOJ’s Lafler/Frye Motion Goes Too Far

April 4th, 2012

In companion cases decided two weeks ago, Missouri v. Frye and Lafler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies to the plea bargaining process and that a defendant who rejected a favorable plea bargain based on incompetent advice from his attorney may be entitled to relief even though he was subsequently convicted at trial.

In Frye, the defense attorney failed to relay a plea offer from the prosecution. The uncommunicated offer expired and the defendant later accepted a plea deal that involved a substantially greater sentence than did the original offer. The Court held that "as a general rule" defense counsel is required to communicate to his client a "formal offer" that is favorable in that it may result in a lesser sentence, a conviction of a lesser crime or crimes, or both.

In Cooper (the name of the defendant), the attorney conveyed the plea offer but advised the client to reject it based on the attorney's constitutionally defective assessment of the strength of the case. The Court held that such advice in plea-bargaining discussions was ineffective assistance and was not rendered irrelevant by a later conviction at trial. Both decisions were by a 5-4 majority with the opinion written by Justice Kennedy.

Thus, in sum, the Supreme Court has held that in the plea bargaining process, the defense attorney must convey a favorable plea offer (Frye) and must not give ineffective advice relating to the decision to accept or reject it (Cooper). Either failure may result in relief even if the defendant were later convicted after trial and sentenced accordingly.

The Department of Justice, understandably and reasonably concerned in protecting convictions in pending cases headed for trial from later appellate and collateral attack on the grounds that a plea offer was not communicated or was rejected because of unsound advice, has responded, at least in one jurisdiction, with a motion to make a record of "plea negotiation activity." See here - Download Motion Pursuant to Lafler and Frye. This "pro-active" motion essentially contains two prongs.

First, the defense counsel should report the plea offer to the Court in the presence of the prosecutor, and the defendant should acknowledge having rejected it. That prong appears to me generally unobjectionable, although I see no reason why the prosecutor, the offeror, should not state the offer, rather than the defense counsel, the offeree.

Second, DOJ requests that the defense counsel's advice concerning whether to accept or reject the plea also be placed in the record. Recognizing that this advice may be privileged, as Frye states, DOJ asks that this be done in a "sealed ex parte document" signed by the defendant and defense counsel. That prong is highly objectionable, and DOJ should withdraw it. If not, defense counsel should challenge it and courts should reject it.

Information that is "privileged" as attorney-client confidences should not be disclosed to anyone, including the judge, unless absolutely necessary (as it might be in a challenge as to whether the communication is actually privileged). Such disclosure, for instance, might reveal the defense trial strategy so that the judge might be influenced in her trial rulings. It might reveal uncharged crimes about which the judge is unaware. It might suggest that the defendant's arguably unreasonable refusal to accept the attorney's strong advice to plead guilty reflects a lack of acceptance of responsibility that the judge might consider negatively at sentence. It might also reveal the attorney's candid view of the judge's ability, fairness and decency, a factor in many plea decisions.

To be sure, a failure to make a record of an attorney's advice whether to plead guilty might lead to an increased number of appeals or collateral proceedings based on alleged unsound advice, although, as pointed out in Cooper, past history does not support this conclusion. This standard argument, that the floodgates will be opened, however, applies equally to the failure to make a record as to the attorney's advice whether a defendant should testify, or should forego for tactical reasons a motion to suppress, or should call certain witnesses, or any number of issues in a criminal proceeding.

DOJ should reconsider its request that the attorney divulge, even ex parte, confidential plea bargaining discussions between lawyer and client beyond merely that the offer was communicated and not accepted. In the absence of a withdrawal of this request by DOJ, defense lawyers should not voluntarily comply (unless it is to their clients' advantage, and I can think of many instances where a defense lawyer would seize the opportunity to give his evaluation of the case to the judge ex parte), and courts should not enforce such an intrusive requirement.

(goldman)

Tag: Lafler v. Cooper

Second Thoughts on The Lafler/Frye Motion

Frye/Cooper Decisions Likely Not To Be Of Great Significance

DOJ’s Lafler/Frye Motion Goes Too Far