DOJ's Lafler/Frye Motion Goes Too Far

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)