Right to Counsel Applies to Consideration of Plea Offers That Lapse or Are Rejected

In a pair of cases this week, Missouri v. Frye and Lafler v. Cooper, a sharply divided Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected.  The rulings are a victory for defendants in criminal systems where upwards of 97% of all federal convictions and 94% of all state convictions are the result of guilty pleas.

Still, under the rulings, criminal defendants will have no easy time in showing that their attorneys are ineffective.  That's because the Court requires them to show a reasonable probability that they would have accepted a lapsed plea, that the prosecutor wouldn't have revoked it, and that the court would have accepted it.  They also have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

And even if a defendant can jump through these hoops, there's still the question of the remedy.  Under Cooper, the trial court could simply reinstate the final conviction and sentence, leaving the defendant no better than he was before the Supreme Court's rulings.

Frye arose out of a defense attorney's failure to tell his client about the prosecution's plea offer.  The defendant went on to enter an open plea and received a higher sentence than the offer.  The Court ruled that the attorney's failure to share the plea offer constituted deficient performance, satisfying the first prong of the Strickland test.  But the Court remanded the case to the state court to determine the state law questions whether there was a reasonable probability that the prosecutor wouldn't have revoked the offer and that the court would have accepted it.  If the defendant can't show a reasonable probability, there's no prejudice under the second prong of the Strickland test.

Cooper arose out of a defendant's rejection of a plea offer based on his attorney's erroneous advice that the prosecution would be unable to convict him of the charged crime.  The defendant was convicted after trial and sentenced to a term 3.5 times longer than the term in the plea offer.  The parties agreed that counsel's performance was deficient under Strickland's first prong, and the Court ruled that the defendant's higher sentence at trial constituted prejudice.  As a remedy, the Court ruled that the state must reoffer the plea.  The trial court can then vacate the convictions and resentence pursuant to the plea, vacate only some of the convictions and resentence accordingly, or leave the convictions and sentences undisturbed.

The Court in both cases emphasized that criminal justice is largely a process of plea, not trial, and that the plea process, including consideration of plea offers, is a critical stage triggering the right to effective assistance of counsel.  The dissent in both cases emphasized that there's no right to a plea offer, and that the defendants in both cases were convicted after a free and fair open plea (in Frye) and a fair trial (in Cooper).

Justice Kennedy wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan in both cases.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in both.

SDS