Thursday, April 5, 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.