Thursday, April 5, 2012

Frye/Cooper Decisions Likely Not To Be Of Great Significance

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.


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Because of the wishy-washy standard and the discretionary remedy, I think the biggest effect will be that Fry operates as a safety valve where judges are particularly uncomfortable with the sentence. For instance, would the grandmother-defendant shaken-baby case from California have come out differently if there'd been some claim -- even a long-shot -- that she'd turned down a plea offer? (If so, CA9 would gladly have put the lawyer's advice under a microscope.)

Also, don't underestimate the sheer number of cases and amount of work this will generate. Virtually everyone convicted after trial now has reason to file for habeas. True, most claims will be denied. But if the petitioner sufficiently alleges bad advice on the plea offer, that will require discovery, and often an evidentiary hearing as well. And it will require state court cases and decisions at the trial and appellate court levels. And then a federal case. In other words, lots and lots of work, to benefit (by your prediction) very few prisoners.

Posted by: Another View | Apr 6, 2012 7:50:36 AM

I am currently working on an article that will provide a much more in-depth analysis of this, but I wanted to briefly defend my claim about the impact of Frye and Lafler.

(1) These decision will change how we teach criminal law. The decisions tell us that plea bargaining matters and there are legal standards for effectiveness in plea bargaining -- and that plea bargaining *is* the criminal justice process, not an adjunct to it. This alone, in my mind, begins to change the way law faculties think about teaching criminal law. For good or ill (and I think for ill), until appellate courts get involved in issues, and usually unless the Supreme Court gets involved in a topic, law professors don't think the topic is worth teaching studnts. We currently teach students a lot about how to write appellate opinion and argue appeals, there's a trial advocacy class typically, and maybe a class on civil negotiations. Most law schools don't teach plea bargaining at all -- and certainly not as an integral part of understanding the criminal justice system. I am an unusual professor in that I begin substantive criminal law with Bordenkircher v. Hayes as I believe that you have to understand what the criminal law is before you study it -- and it is the *starting point* of what a prosecutor *could* do and the beginning of negotiations.

So why changing the way we teach change what happens to actual defendants? Well currently as most law students are only taught elements, there's no discussion about how to think about charging and plea bargaining -- not only what duties defense lawyers have to their clients, but how *prosecutors* ought to think about charging and negotiating. New prosecutors are turned loose to dispense "justice" with no real context for how to consider the value of equitable factors that are not in the statute -- the appropriate value to be assigned cooperation -- and how to discount for fear of acquittal. These cases give professors a vehicle to start talking about those things in class, to begin to make future prosecutors think about how discretion ought to be exercised.

But that's the teaching point -- and that effect will be felt a while down the road. There are some immediate implications.

2) Lawyers will be more careful in plea bargaining. When you add Padilla to these decisions, you see that defense lawyers are now aware that there is an objective level of competence in the negotiation to which they must rise. In Padilla, Stevens noted that knowledge of the defendant's immigration status could have aided in the plea bargaining process. Add that to Lafler, where you have to reasonably assess how a jury will interpret facts in light of the law. Competence in the negotiation now means understanding the law and doing a sufficient factual investigation to be able to negotiate from the strongest possible position (see Padilla). The read 'em and plead 'em lawyers should come to view their jobs differently -- failure to negotiate adequately appears to be inadequate representation. I recently proposed a CLE to a group of criminal defense lawyers on plea bargaining as part of a larger trial skills program. I was told that lawyers would be "insulted" by a such as class as it would suggest they can't negotiate already. Lafler/Cooper is a game changer in my mind because it could change everyone's attitude about what plea bargaining is. If you can now be post-convicted for failure to negotiate well, then you might be willing to attend a CLE on how to do it well.

3) There will be more documentation about pleas. As Lawrence Goldman notes, the department of justice is already asking for more information to be placed into the record of individual cases about plea offers. The gov't even wants the defense lawyer's reasoning filed but sealed to prevent a subsequent collateral attack. The better and clearer records we get about plea offers the less idiosyncratic it becomes. We move toward a common law of plea bargaining as we're able to identify the factors that motivate prosecutors to make offers.

4) It seems that prosecutors MAY even start to state some of the reasons for their plea offers in these documents for a couple of reasons. The first is public relations. If there's a reduction offered, and the public can see that document not as a fait accompli in a judgment but in a single piece of paper -- the prosecution is seeking 50 years at trial but will allow the defendant to take 12 on a plea -- public relations concerns might prompt the prosecutors to explain why such a reduction is appropriate.

Further, the nature of the remedy for ineffective assistance of counsel claims could prompt prosecutors to explain more about their reasoning in the amount of the reduction they offer. There are three basic categories of reasons prosecutors are willing to offer a plea to a lesser sentence or charge: (1) risk of acquittal and administrative costs of trial (including burdern to witnesses); (2) cooperation; (3) equity (i.e., the sentence called provided for the crime is excessive given the facts of the case -- PA for instance provides for a two year mandatory minimum for distributing drugs within 1000 ft of a school, playground, bus stop, or UNIVERSITY -- a plea to simple possession in PA recognizes the reality that giving your college roommate a dime bag shouldn't send you away). I think Strickland's concern that you get a remedy only when an unfair result has been reached could be used in this context to give defendants only the equity-portion of the plea deal as there's no longer the possibility that the defendant could spare the state a trial, there's no longer the risk of acquittal at the first trial, and there's probably no chance remaining for cooperation. The idea that only the equity-portion of the plea discount will be given in the remedy, it seems to me, is what was suggested in the post by "Another View". Interestingly, if this position is correct, and I really think it is, this is a potentially large benefit to defendants. Prosecutors will want to identify that portion of pleas which were the equity discounts -- and will have an incentive to reasonably state these determinations in the offers so that courts reviewing ineffective assistance of counsel claims will not ignore their assessments. And every time prosecutors explain how much they discounted a case because they found a particular result too harsh, we have another data point in an emerging common law of plea bargaining.

5) A note on the limited scope of the remedy. As the Court noted in Strickland, most ineffective assistance of counsel claims can be knocked out because there was no prejudice. That won't be true where a defendant chose to go trial with ANY kind of plea offer on the table. This will all turn on performance prong -- the decision to go to trial will necessarily have prejudiced the defendant if he loses. I agree with Lawrence Goldman that courts will have develop some gatekeeper function on the performance end, but once you've seen that there's been an act of counsel that clearly prejudiced the defendant, it seems much easier to say there was a performance problem.

Lafler and Frye -- and Padilla -- tell us to start treating the plea bargaining process somewhat like trials. Just as Gideon said you the right to a lawyer in the trial, Lafler and Frye tell us you have the right to a competent lawyer in the negotiation process. Lafler and Frye permit, enable and require all the actors in the system, from teachers to who train criminal lawyers, to prosecutors who charge and negotiate, to defense lawyers who do the negotiating to think about negotiations as a system in which there are professional standards of competence -- and a system where the rule of law should govern as opposed to idiosyncracies unique to each case.

Presently proponents of the American Criminal Justice System boast its adversarial quality and sneer at the Continental inquisitorial system. The reality is that with guidelines and mandatory minimums that produce pleas in 95+ percent of all cases, America has an inquisitorial system where the prosecutor is the judge for virtually everyone entering the system -- but unlike the Continental system, ours is an entirely unregulated inquisitorial system. Lafler, Frye, and Padilla appear set to change that.

Posted by: Wes Oliver | Apr 6, 2012 10:21:50 AM

From the author:
These are thoughtful comments.
Obviously, resentences are most likely in sympathetic cases, but they still require a finding of no communication or grossly unsound advice, both hard to prove and rare. This raises the possibility of collusiom, which I expect will be exceedingly rare, but no doubt troubles some prosecutors.
I agree there will be an increase in filings. I was addressing ultimate results, but probably should have said that. And, the recent ABA ruling prohibiting waiving attorney-client confidentiality unless by court direction may require more hearings than expected.

Posted by: Lawrence Goldman | Apr 6, 2012 11:08:05 AM

One more quick thought. A possibly unforeseen consequence of these opinions is that there will even more pleas (if that number can get higher). Defendants tend to lose at trial. A risk-averse defense lawyer may feel even more pressure to advise a plea now for fear of an ineffective assistance claim. (Of course, the prosecution types fear the opposite -- that defense counsel will reject pleas knowing their clients CAN post-convict them. While many defense lawyers I know would honestly admit their ineffectiveness if it happened, none I know would set up a claim their clients could bring against them.)

I also think that with Padilla added in the mix that there are more ways to be ineffective in the negotiation than just the two ways offered in Lafler and Frye. Padilla strongly suggests that not being aware of information that could be used in the bargaining process (a non-statutory factor -- here, the defendant could have argued for a misdemeanor because of the consequences of a felony) could amount to ineffective assistance. This almost looks like failure to investigate in capital cases.

So two fundamental shifts have occurred, it strikes me -- (1) even more pressure is placed on cases to plead and (2) counsel has a potentially quite sweeping duty to present the prosecution with a compelling case for a better offer at the plea stage.

It appears as though we're coming much closer to an inquisitorial system. I am somewhat agnostic about the choice between an inquisitorial or adversarial system -- but must say I am much happier with the thought of a regulated rather than unregulated inquisitorial system.

Posted by: Wes Oliver | Apr 6, 2012 11:35:50 AM

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