Monday, April 30, 2012
In United States v. VandeBrake, (opinion- Download 111390P) the Eighth Circuit in a 2-1 opinion affirmed a 48-month sentence in an anti-trust case. The trial court had "varied upward from the advisory guidelines range based primarily upon VandeBrake's lack of remorse and the court's policy disagreement with United States Sentencing Guidelines Manual (U.S.S.G.) § 2R1.1." The trial court rejected, after giving notice to the parties, a binding plea agreement which called for a sentence of 19 months. Defendant-appellant argued that imposing "the longest sentence ever imposed in an antitrust case" was unwarranted here in comparison to the other case that received this same high sentence. The Appellate court affirmed the decision, but there's a concurring opinion and also a dissent.
The concurring opinion "disassociate[s itself] from the district court's comments about economic success and status, race, heritage, and religion." Chief Judge Riley writes - "I consider those comments inappropriate and not a proper reason for supporting any sentence."
The dissent by Circuit Judge Beam states in the opening paragraph - "even a multi-millionaire businessman has the right to be sentenced under the rule of law, especially rules recently put in place by the Supreme Court. Rich persons, poor persons and persons at all other economic strata should expect no less." The dissent states "the sentencing court's bald assumption that it has deferential discretion to substantially vary from all guidelines on policy grounds is reversible error." Judge Beam states:
"My research reveals that there were only a few hundred offenders sentenced for committing antitrust violations between FYs 1996 and 2011. The statistics also demonstrate that, over a period of 15 years, VandeBrake was the only antitrust offender sentenced above the guidelines range. Indeed, out of some 230 offenders The preliminary data for FY 2011 indicates that one antitrust offender was sentenced above the guidelines via an upward variance. Since VandeBrake was sentenced under § 2R1.1 since FY 1997, 83 were sentenced within the guidelines range and 146 were sentenced below the guidelines range. Similarly, since FY 1996, of the 288 offenders sentenced with an antitrust violation being the "primary offense," 95 were sentenced within the guidelines range and 192 were sentenced below the guidelines range." (Footnotes omitted)
Will DOJ join defense counsel on the same side in sending this case higher? They should. As noted here, Professor Berman looks at another white collar case with a high sentence. He states "I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes." As "ministers of justice" DOJ should support the defense if they are to continue their argument that sentences in white collar cases should remain within the guidelines.
Sunday, April 29, 2012
Here are ten basic observations regarding criminal discovery. They send a loud message that the proposed Senator Lisa Mukowski (Alaska) (along with Senators Inouye, Hutchinson, Begich and Akaka) "Fairness in Disclosure of Evidence Act" legislation is needed to codify the holding in Brady and add teeth to making certain that defendants receive a fair trial.
Ten Basic Premises:
- Most prosecutors play by the rules.
- One of the rules is you have to give up Brady material.
- Brady is going to be 50 years old in 2013.
- The ethics rules require prosecutors to give up exculpatory material.
- Some prosecutors have no clue what Brady material really is.
- In some cases prosecutors can’t tell if something is favorable to the defense because they don’t know what the defense will be presenting.
- Discovery in national security cases, terrorism, and cases where someone will get hurt needs to be treated differently.
- The chances of prosecutors being caught if they fail to give up Brady material is slim.
- If Brady material is not given or given late, most courts will find it to be harmless error.
- The chances of a prosecutor being disciplined for not giving up exculpatory material is slim.
Wednesday, April 25, 2012
I expect that any day now one of my non-white-collar criminal clients will come to my office and ask me to incorporate him to protect him from future criminal liability. Of course, incorporation does not immunize an individual from criminal liability. Nor, generally, does it protect small corporations from prosecution.
However, it appears that just as massive corporations are "too big to fail," they are too big to prosecute. In the wake of the government's destruction of Arthur Andersen because of an ill-conceived, aggressive and ultimately unsuccessful indictment which caused the loss of thousands of jobs, DOJ has been highly reluctant to aggressively prosecute major corporations.
Although there are occasionally indictments of major corporations, most often these are disposed of by "deferred prosecutions," which are essentially delayed dismissals with financial penalties in numbers that are large in absolute terms but meager in comparison to the profits and assets of the corporation. To be sure, even when prosecuted to conviction, corporations do not go to jail and thus there may be little practical difference between a conviction of a corporation and a deferred prosecution. However, to the extent a goal of the criminal justice system is to achieve apparent fairness and equality, there is a genuine, if symbolic, reason for the prosecution of the large and powerful, whether they be individuals or corporations.
According to a thorough account in the New York Times this past Saturday, April 21, see here, Wal-Mart in Mexico, where the company has, according to the Times, one-fifth of its stores, engaged in a systemic countrywide scheme in which it spent millions of dollars to bribe hundreds of Mexican officials to gain favorable and expedited treatment and a competitive advantage. According to the Times, this conspiracy was not, as is often the case in corporate wrongdoing, the act of a rogue individual or group. Rather, it was orchestrated from the very top of the Wal-Mart Mexican hierarchy. Additionally, again according to the Times, when reports of this corruption reached Wal-Mart's U.S. headquarters, top executives took great pains to cover up the wrongdoing.
The alleged conspiracy, if the Times report is accurate, appears to be the kind of corporate crime, therefore, that deserves aggressive prosecution (not just an indictment and a deferred prosecution), especially if the government wants the Federal Corrupt Practices Act ("FCPA") to be taken seriously. Of course, there may be statute of limitations or other fact-finding or evidentiary problems involved in putting together a case involving facts from 2005, the year, according to the article, the bribe payments were made. It is far easier to write an article reporting corruption than to prove it under the rules of evidence beyond a reasonable doubt. It will be interesting to see what, if anything, DOJ does with respect to this matter.
Sunday, April 22, 2012
Check out this new article by Mike Koehler here. His abstract states:
"Bringing criminal charges and marshalling the full resources of law enforcement agencies against an individual is an awesome power that our government possess. Because that power alters the lives of real people and their families, sidetracks real careers, empties real bank accounts in mounting a defense, and causes often irreversible damage to real reputations, it ought to be exercised with real discipline and prudence.
While it is unrealistic (and probably not desirable from a policy perspective) to expect the Justice Department to win 100 percent of its Foreign Corrupt Practices Act prosecutions against individuals when put to its burden of proof, given the above referenced dynamics, it is realistic (and desirable from a policy perspective) to expect the department to win a very high percentage of its FCPA prosecution against individuals. However, several recent DOJ FCPA prosecutions against individuals have fallen short of this desirable objective, often in spectacular ways. This raises the question - what percentage of DOJ FCPA losses is acceptable?
To borrow from Justice Potter Stewart's classic reasoning in Jacobellis v. Ohio, I don't know what level of DOJ FCPA losses is acceptable and the answer may be indefinable. But I know it when I see it, and the number and magnitude of DOJ's recent FCPA losses is unacceptable."
Monday, April 16, 2012
The Supreme Court denied certiorari in the latest matter related to Jeffrey Skilling. See here Skilling is still subject to resentencing resulting from the Supreme Court decision that held that the honest services provision of mail fraud (section 1346) would be limited to bribery and kickbacks.
See also Greg Stohr, Bloomberg, Enron’s Skilling Rejected by Top U.S. Court on Conviction , Washington Post, AP, Court rejects ex-Enron CEO Jeffrey Skilling’s appeal asking for new trial
Sunday, April 15, 2012
Brian Baxter, AmLaw Daily, Megaupload Hires High-Profile Quinn Emanuel Laterals for Criminal Defense
Michael Pollick, Herald-Tribune, In flipping fraud case, wife won't join husband in prison
Mike Scarcella, BLT Blog, Lawyer Charged In Trial Scheme Wants Sanctions Against Prosecutors (hat tip to Ivan Dominguez)
Jenna Greene, BLT Blog, Goldman Sachs Settles SEC Case Alleging Misuse of Nonpublic Information
Many companies, as part of their compensation and benefits packages, have indemnification agreements that allow for payment of attorney fee expenses to company officers, directors, and others. Some may be surprised to learn that Fannie Mae and Freddie Mac have such agreements as part of Enterprise Bylaws or individual agreements. "Between 2004 and October 31, 2011, Fannie Mae advanced $99.4 million in legal expenses to cover the representation of" three former officers "in connection with government investigations and lawsuits stemming from accounting irregularities uncovered in 2004." The Office of Inspector General issued a report that offers some suggestions on reducing future costs. The "evaluation was led by Director of Special Projects David Z. Seide, and Investigative Counsel Stephen P. Learned contributed to its completion." The report can be found here.
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Friday, April 13, 2012
Circuit Judge Pryor not only voted to deny a rehearing en banc in the Ali Shaygan case seeking Hyde Amendment fees, but he went out of his way to explain his reasoning of why he was not supporting the factfinder district court judge. (see here). His opinion, one that seems likely to be headed for a higher review, looks at why he thinks a Hyde Amendment award was improper in this case. His decision spends several pages explaining what he believes was the evidence against the defendant, who by the way was acquitted after a trial by jury. He notes how defense counsel ( who he does not mention by name - it's David Oscar Markus) is "an elite defense attorney, and Shaygan's superb counsel took advantage of the opportunity to focus the attention of the jury on the alleged misconduct by the government in the collateral investigation."
The district court had granted Shaygan's Hyde Amendment motion and ordered payment of $601,795.88 for attorney fees and costs. The award was a response to a finding of prosecutorial conduct including discovery violations. Circuit Judge Pryor comes to the defense of the prosecutors saying that "[t]hese public servants deserve better." He ends his affirmation of the denial for a rehearing en banc stating that "[t]he prosecution of Shaygan, triggered by the death of his patient and supported by substantial evidence, was not wrong." Check out John Pacenti's article in the Daily Business Review, Eleventh Circuit releases new opinion on Shaygan case, criticizes dissent
The two person dissent to this denial of a rehearing en banc by Circuit Judges Martin and Barkett present a very different picture. They note that U.S. District Judge Alan S. Gold's "comprehensive fifty-page Order awarding Hyde Amendment attorneys fees to Dr. Ali Shaygan was 'crowded with thorough findings of fact' detailing government misconduct that took place in his prosecution." They state:
"This Court's opinion also strips our federal judges of a rarely needed, but critical tool for deterring and punishing prosecutorial misconduct. And the prosecutorial misconduct that happened in Dr. Shaygan's case deserved punishment."
This dissent outlines the discovery that was not provided to the defense despite a court order. They state "[t]he government violated Dr. Shaygan's rights, and now, contrary to what Congress has provided, he is left alone to pay the costs he suffered at the hands of these rule breakers."
This case sets up a wonderful review of what should be the role of the Hyde Amendment, who should be the finder of facts when there are allegations of misconduct, what should be the standard of review, and how best to remedy claims of discovery violations. This case also needs to be considered as Congress decides whether to pass Brady legislation.
Thursday, April 12, 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.
Wednesday, April 11, 2012
The media is reporting that Apple and others have a lawsuit filed against them by the Department of Justice for alleged price-fixing, violations under Section 1 of the Sherman Act. (see here, here, and here). The Department of Justice Antitrust Division website has an Antitrust Primer here. It states:
"Price fixing, bid rigging, and market allocation are generally prosecuted criminally because they have been found to be unambiguously harmful, that is, per se illegal. Such agreements have been shown to defraud consumers and unquestionably raise prices or restrict output without creating any plausible offsetting benefit to consumers, unlike other business conduct that may be the subject of civil lawsuits by the federal government."
See also DOJ Press Release, Justice Department Reaches Settlement with Three of the Largest Book Publishers and Continues to Litigate Against Apple Inc. and Two Other Publishers to Restore Price Competition and Reduce E-book Prices
The Ninth Circuit en banc issued an opinion in the case of United States v. Nosal (Download US v Nosal 9th Cir 2012-04-10). It is not often that we see opinions that interpret section 1030, the Computer Fraud and Abuse Act. But it is also likely that this will be a hot area of the law as Hon. Kozinski, who authored the opinion in this case, begins with the line "[c]omputers have become an indispensable part of our daily lives."
The government charged the defendant with violations of 18 U.S.C.s 1030(a)(4) for allegedly "aiding and abetting" a companies employees "in 'exceed[ing their] authorized access' with intent to defraud." The trial court dismissed certain counts and the government appealed. In affirming the trial court's dismissal, the 9th Circuit states, "[b]asing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved." The court finds that "[t]herefore, we hold that 'exceeds authorized access' in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use."
The Ninth Circuit makes a point of noting the jurisdictional split that exists with respect to this issue. The court states,
"[w]e therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA 'target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.'"
The decision uses the Rule of Lenity and sends word to Congress that if it "wants to incorporate misappropriation liability into the CFAA, it must speak more clearly."
The court rejects an argument we often hear from the government - trust us - we won't prosecute cases that should not be prosecuted. The court noted that most individuals are unaware of the terms of service agreements of internet providers including one major company that until recently "forbade minors from using its services." The court stated, "we shouldn’t have to live at the mercy of our local prosecutor. . . And it’s not clear we can trust the government when a tempting target comes along."(citations omitted).
(esp)(hat tip to Evan Jenness)
Tuesday, April 10, 2012
NACDL 2d Annual West Coast White Collar Conference - June 7-8, Lake Tahoe here
New York City Bar, 1st Annual White Collar Crime Institute - May 14, 2012 here (50% discounts off of member and non-member prices for government and public interest attorneys, students and academics; 50% discounts off of member and non-member prices for attorneys working for the District Attorney’s Office, U.S. Attorney’s Office, Legal Aid, New York Inspector General’s Office and other Law organizations; 20% discounts off of member and non-member prices for firms and corporations that register 4 or more people for this program).
WestLegalCenter, Defending Corporations and Individuals in Government Investigation - Conducting Effective Internal Investigations, (includes Daniel J. Fetterman and Mark Goodman) here (provides an interesting discussion on different aspects of an internal investigation).
Mike Scarcella, BLT Blog, Clemens Quarrels With DOJ Over Access To Law Firm's Notes
Attorney Michael Volkov joins LeClairRyan here
Mike Scarcella & Todd Ruger, National LJ, law.com, Competing fixes for bribery law - DOJ to issue new guidance, as Congress weighs big reforms
A. Brian Albritton, False Claims Act & Qui Tam Law Blog, Wellcare Health Plans Agrees to Pay $137.5 Million to Resolve False Claims Act Case; DOJ Press Release, Florida-Based Wellcare Health Plans Agrees to Pay $137.5 Million to Resolve False Claims Act Allegations; AP, Miami Herald, Bondi: Florida to get $54 million from settlement
Katheryn Hayes Tucker, Daily Report, Nursing home lawyer-owner is convicted of health fraud - Judge finds that U.S. paid defendant $33 million for 'worthless services'
Jennifer Peltz, AP, Ex-Tyco CEO loses parole bid in New York
David Voreacos, Bloomberg, U.S. Tax-Evasion Probes Said to Slow as Prosecutors Transfer
Peter Jackson, AP, Daily Times, 3 Pa. GOP corruption defendants get probation
Monday, April 9, 2012
BLT: The Blog of Legal Times reports that the U.S. Attorney's Office in Washington recently asked to review notes made by attorneys for DLA Piper, including George Mitchell, during interviews of persons such as Brian McNamee and Kirk Radomski who are expected to be government witnesses in the trial of Roger Clemens. See here. Judge Reggie Walton had ordered that these notes, made by the lawyers in their investigation of drug use by baseball players, be produced to the defense over DLA Piper's objection. The government took no position on the defense application for production.
Now, claiming that the government "did not lift a finger" to secure the notes, Clemens' attorneys ask Judge Walton to deny the government access to the notes. Otherwise, the court will "reward the prosecution for taking a head-in-the-sand approach," they claim.
I cannot agree with Clemens' position. Discovery is not a one-way street either for the government or for the defense. Both parties should be equally entitled to the documents. Even objections to production of documents by third parties should not operate as a waiver to review the documents, if they are produced. Although the defense, unlike the government, has no obligation to produce material harmful to its case, when relevant documents are secured by court order from third parties, absent special circumstances such as privilege, they should be available to both sides. A contrary rule would conceal information from defendants much more than from prosecutors.
Sunday, April 8, 2012
In a Petition for Rehearing and Rehearing en Banc, defense counsel raises that the Second Circuit did not consider the Supreme Court's recent decision in Global Tech (for more discussion on this case see here and here). The defense argues that the 2009 conviction of Frederic Bourke Jr. for conspiracy to violate the FCPA and for making false statements was affirmed, but the jury was not apprised that reckless conduct was insufficient for conscious avoidance. Global Tech was issued after oral argument in the case.
Petition for Rehearing - Download Bourkeca2rehearingpetition
Friday, April 6, 2012
In the wake of the Schuelke/Shields report and the introduction of new discovery legislation, one has to wonder whether the Supreme Court will take a case that raises a Brady discovery issue. At their doorsteps is the case of James A. Brown, a case from the Enron days. As previously noted (here) Brown, is a former Merrill Lynch executive who "was convicted of perjury and obstruction of justice for his testimony before the Enron grand jury about a transaction between Merrill and Enron in late 1999." There are important issues here like the appropriate standard of review for Brady cases. Should it be "clear error" or should it be de novo. (see here) The case also examines "materiality," a term that has created some confusion. What must a prosecutor provide to the defense counsel. And isn't it odd that the adversary in the process is making the determination for what the defense is entitled to receive. The case looks at summaries being provided to defense counsel. Bottom line - summaries are not the same as the real thing.
In the reply brief recently filed, they argue-
"Here, as in Stevens, many exculpatory statements appear only in raw notes of government interviews of key players. In Brown, the Enron Task Force actually yellow-highlighted these notes before trial – along with prior testimony and FBI 302s – indicating that the information met the requirements of Brady and was material, but suppressed them anyway. While continuing to deny that any evidence fell within Brady, new prosecutors recently disclosed 6,300 pages including much (but still not all) of the evidence suppressed by the Task Force." (Reply Brief - Download FILED REPLY ON CERT.)
The government's brief sees things differently - Download SG OPP32312.
This case is distributed for conference on April 20th.
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.
Wednesday, April 4, 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.