{"id":17993,"date":"2012-08-05T22:19:46","date_gmt":"2012-08-06T03:19:46","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17993"},"modified":"2012-08-05T22:24:53","modified_gmt":"2012-08-06T03:24:53","slug":"observations-on-lafler-and-frye-little-relief-in-sight-for-defendants-whose-lawyers-botched-plea-negotiations","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/08\/observations-on-lafler-and-frye-little-relief-in-sight-for-defendants-whose-lawyers-botched-plea-negotiations\/","title":{"rendered":"Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations"},"content":{"rendered":"

\"\"<\/a>In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining. \u00a0More specifically, in\u00a0Lafler v. Cooper<\/a>,\u00a0<\/em>the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant. \u00a0Meanwhile, in\u00a0Missouri v. Frye<\/em><\/a>, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer\u2019s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer\u2019s incompetence.<\/p>\n

To read Justice Scalia\u2019s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time. \u00a0In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court\u2019s earlier decisions and has been widely recognized in the lower courts for years. \u00a0Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970\u2032s.<\/p>\n

In fact,\u00a0Lafler\u00a0<\/em>and\u00a0Frye\u00a0<\/em>remind me of one of the Court decisions from that era,\u00a0Henderson v. Morgan<\/em>\u00a0<\/em>(1976). \u00a0The comparison is not meant as a compliment. \u00a0<\/p>\n

Henderson<\/em>\u00a0<\/em>established that a defendant\u2019s guilty plea is not constitutionally valid if the defendant does not understand what the critical elements are of the offense to which he is pleading. \u00a0Henderson\u00a0<\/em>may be thought of as an indirect way of regulating the quality of defense representation in plea bargaining; if the defendant does not know the nature of the crime to which he is pleading, that seems a pretty good indication of crummy lawyering.<\/p>\n

However,\u00a0Henderson<\/em>, like\u00a0Lafler\u00a0<\/em>and\u00a0Frye<\/em>, had some extreme facts, and the Court proved quite reluctant to grant relief to defendants when the nature of the unfairness was less clearcut. \u00a0Henderson\u00a0<\/em>was thus distinguished and limited in various ways, including through the adoption of a presumption that a represented defendant was properly informed by counsel of the key elements. \u00a0For better or worse, the Court has not been willing to scrutinize lawyer performance with much rigor.<\/p>\n

In\u00a0Lafler\u00a0<\/em>and\u00a0Frye<\/em>, the Court preserved for itself and lower courts plenty of room for a\u00a0Henderson\u00a0<\/em>replay. \u00a0Through both the definition of the right and the formulation of the remedy, the decisions establish substantial hurdles for the two defendants (Cooper and Frye) to overcome before they will be able to obtain any meaningful relief, let alone other defendants with less compelling facts.<\/p>\n

Perhaps the biggest surprise about Scalia\u2019s dissent is that he bothered to protest at all.<\/p>\n

For defendants, the most helpful development in\u00a0Lafler\u00a0<\/em>and\u00a0Frye<\/em>\u00a0may not have anything to do with Sixth Amendment rights, but with habeas corpus. \u00a0More about that at the end of this post.<\/p>\n

First, let\u2019s take a closer look at how limited the reach of the Sixth Amendment holdings are. \u00a0The Court used the basic two-part analysis for ineffective assistance claims that was developed in\u00a0Strickland v. Washington<\/em>.<\/p>\n

In the first step, a court must determine whether the lawyer\u2019s performance was unreasonably poor. \u00a0In\u00a0Lafler<\/em>, the case of the lawyer who mistakenly advised his client to go to trial, the state conceded that the performance prong of\u00a0Strickland\u00a0<\/em>was satisfied. \u00a0Beyond accepting this concession for purposes of its decision, the Supreme Court said almost nothing about what standards must be satisfied when a lawyer advises her client to turn down a plea deal, creating ample opportunity for lower courts to distinguish\u00a0Lafler\u00a0<\/em>in the more common scenario of no concession by the state.<\/p>\n

Frye\u00a0<\/em>devoted considerably more attention to the performance prong. \u00a0Here, the Court dealt with a missed deadline, resulting in the loss of a plea offer that promised a much more favorable outcome than the defendant actually received. \u00a0Frye claimed, and no one seemed to doubt, that he would have accepted the offer had it been communicated to him by his lawyer. \u00a0In response, the Court provided what it did not in\u00a0Lafler<\/em>, that is, a clear holding that the lawyer\u2019s performance fell below the\u00a0Strickland\u00a0<\/em>standard. \u00a0Indeed, the Court adopted a rule of sorts to govern such situations in the future:<\/p>\n

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires. (9)<\/p><\/blockquote>\n

Leaving aside the potential loopholes for offers that are not \u201cformal\u201d or that lack a \u201cfixed expiration date,\u201d this rule was an easy one for the Court to adopt. \u00a0As the Court noted, the American Bar Association has long recommended that defense counsel \u201cpromptly\u00a0communicate and explain to the defendant all plea offers made by the prosecuting attorney,\u201d ABA Standards for Criminal Justice, Pleas of Guilty 14\u20133.2(a) (3d ed. 1999), and the standard has already been adopted by many lower courts and state bar associations.<\/p>\n

But what about attorney plea-bargaining errors that are not covered by such clear, widely accepted practice norms? \u00a0The\u00a0Frye\u00a0<\/em>Court signaled that it has little interest in prescribing specific constitutional standards outside the uncommunicated-offer setting:<\/p>\n

\u201cThe art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.\u201d\u00a0Premo v. Moore<\/em>, 562 U. S. ___, ___ (2011) (slip op., at 8\u20139). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel\u2019s participation in the process. \u00a0Cf. ibid.<\/em>\u00a0\u00a0(8)<\/p><\/blockquote>\n

This language is quite reminiscent of similar language that the Court has often used in turning aside\u00a0Strickland\u00a0<\/em>claims based on counsel\u2019s performance in the courtroom. \u00a0The attitude that \u201cit is all so nuanced and case-specific that we can\u2019t possibly formulate rules for it\u201d seems, in practice, to collapse into anything goes for defense counsel. \u00a0The general experience with\u00a0Strickland\u00a0<\/em>has been that if defense counsel can with any scrap of plausibility label an action (or a non-action) as \u201ctactical,\u201d the courts will approve it. \u00a0Based on\u00a0Frye\u00a0<\/em>and\u00a0Lafler<\/em>, there\u2019s no reason to think that counsel\u2019s plea-bargaining performance will be subject to any more rigorous review.<\/p>\n

Under\u00a0Strickland\u2019s<\/em>\u00a0second prong, the defendant must demonstrate prejudice, that is, a reasonable probability of a different outcome if counsel\u2019s performance had not been so poor. \u00a0This prong received a bit more attention than the first in\u00a0Lafler. \u00a0<\/em>Here\u2019s how the Court articulated the test:<\/p>\n

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer\u2019s terms would have been less severe than under the judgment and sentence that in fact were imposed. (5)<\/p><\/blockquote>\n

The\u00a0Lafler<\/em>\u00a0Court found this test satisfied without much detailed analysis.<\/p>\n

Prejudice presented a much more difficult problem for the defendant in\u00a0Frye<\/em>. \u00a0His position was more complicated because he was arrested for a new offense only two days after his plea offer lapsed. \u00a0Thus, even if he had accepted the offer, there was still a good possibility that the prosecution would have withdrawn the offer or that the judge would have declined to approve the plea deal. \u00a0Either eventuality would have eliminated any prejudice from counsel\u2019s poor performance:<\/p>\n

[A] defendant in Frye\u2019s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution\u00a0would have adhered to the agreement and that it would have been accepted by the trial court. Frye can show he would have accepted the offer, but there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final. (13-14)<\/p><\/blockquote>\n

This \u201cstrong reason\u201d prompted the Court to remand to the state court in order to make the prejudice determination.<\/p>\n

Although Frye\u2019s new arrest so soon after the expiration of the plea offer may be an unusual circumstance, the Court\u2019s discussion highlights what may prove to be an important obstacle to relief for many defendants: the need to establish a reasonable probability that a lost plea deal would have been approved by the judge and would have resulted in a better outcome for the defendant. \u00a0Having already determined what is believed to be a just sentence for the defendant, a trial judge is not likely to want to give the defendant the benefit of a plea deal that promised a lesser sentence. \u00a0Incentives seem strong for judges to say that they would not have approved the deal or gone along with a recommended sentence (if that was a kay component of the deal). \u00a0Defendants may be hard-pressed to counter such assertions persuasively.<\/p>\n

Lafler\u00a0<\/em>and\u00a0Frye\u00a0<\/em>thus suggest that few defendants may be able to establish a Sixth Amendment violation based on counsel\u2019s plea-bargaining performance. \u00a0But, perhaps even more significantly, the Court\u2019s treatment of remedy in\u00a0Lafler<\/em>\u00a0indicates that even defendants whose rights were violated cannot count on any meaningful redress.<\/p>\n

Here\u2019s what the Court said:<\/p>\n

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel\u2019s errors he would have accepted the plea. If the showing is made, the court\u00a0may exercise discretion<\/em>\u00a0in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.<\/p>\n

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge\u2019s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional\u00a0injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judgecan then exercise discretion<\/em>\u00a0in deciding whether to vacate the con\u00adviction from trial and accept the plea or leave the convic\u00adtion undisturbed.<\/p>\n

In implementing a remedy in both of these situations, the trial court must weigh various factors; and\u00a0the bound\u00adaries of proper discretion need not be defined here<\/em>. (12-13, citations omitted, emphasis added)<\/p><\/blockquote>\n

What comes through loud and clear is the principle of\u00a0discretion\u00a0<\/em>\u2013 the trial judge gets to decide what remedy to provide\u00a0if any at all<\/em>.<\/p>\n

At one level, this seem a sensible solution to what otherwise would be an awkward problem for trial judges: in some cases, \u00a0the plea deal that the defendant has lost was far too lenient, and subsequent events may serve to make that quite clear (e.g., if the case goes to trial, important aggravating information may emerge from witness testimony); it would seem unfortunate in these circumstances to force the trial judge to give the defendant the benefit of a deal that obviously disserves the public. \u00a0Lafler\u00a0<\/em>gives trial judges the flexibility to avoid such outcomes. \u00a0(And,\u00a0<\/em>lest one think that the\u00a0Lafler<\/em>\u2018s remedy discussion was limited to cases that went to trial after an offer was declined,\u00a0Frye\u00a0<\/em>seemed to incorporate by reference\u00a0Lafler<\/em>\u2018s treatment of remedy. \u00a0Slip. Op. at 1 (\u201cOther questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today.\u201d).)<\/p>\n

Yet, in giving such broad discretion to trial judges to determine the remedy \u2014 an aspect of the majority opinion of which Justice Scalia was quite rightly critical \u2013\u00a0Lafler\u00a0<\/em>may go too far. \u00a0If trial judges really are invested in the sentences they hand down \u2014 and they really ought to be so invested if they are putting an appropriate level of effort into the enterprise \u2014 one imagines that they will be quite resistant to providing any more than a token remedy in most cases.<\/p>\n

In elaborating on the discretionary nature of the remedy decision, the Court made two further pronouncements that seem to underscore the scope of the trial judge\u2019s freedom to keep his or her initial sentencing decision in place. \u00a0First, the Court said, the trial judge \u201cmay take account of a defendant\u2019s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.\u201d \u00a0(13) \u00a0For many judges, acceptance of responsibility is a major factor in determining a sentence. \u00a0If a judge was unimpressed with a defendant\u2019s acceptance of responsibility the first time around \u2014 and this is probably the usual situation with a defendant who has gone to trial \u2014 that fact may apparently justify the denial of a remedy. \u00a0Second, the Court added,<\/p>\n

it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any infor\u00admation concerning the crime that was discovered after the plea offer was made. The time continuum makes it diffi\u00adcult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer . . . . (13)<\/p><\/blockquote>\n

This statement seems to open the door for the judge to take into account any adverse information \u2014 and there is probably almost always something adverse \u2014 that came to light after the botched plea-negotiation process, including information from the trial (if there was one) or sentencing proceeding. \u00a0A judge may thus refuse to give the defendant the benefit of a favorable deal on the basis of information that the judge would not have had in deciding whether to approve the deal in the first instance.<\/p>\n

There are other ways that the Court could have dealt with the remedy question that would have given the underlying right more teeth without permitting the most egregious windfalls. \u00a0For instance, the Court might have established a rebuttable presumption in favor of the most natural remedy \u2014 that is, giving the defendant the full benefit of the deal that would have been his had his lawyer met minimal standards of competence \u2014 subject to modification to the extent that the state could show a strong public interest against the deal based on later-obtained information.<\/p>\n

But enough on Sixth Amendment law. \u00a0As noted above, the most interesting and surprising aspect of\u00a0Lafler\u00a0<\/em>may have been its treatment of habeas corpus law, specifically, 28 U.S.C.\u00a0\u00a72254(d)(1). \u00a0This provision, which strictly limits the possibility of habeas relief in cases in which the state court has rejected a defendant\u2019s habeas claim on the merits, has figured prominently in a recent series of Supreme Court decisions. \u00a0One,\u00a0Harrington v. Richter<\/em><\/a>, seemed almost to exclude categorically\u00a0Strickland\u00a0<\/em>claims from the realm of federal habeas.<\/p>\n

It is surprising, then, to see what happened in\u00a0Lafler<\/em>: the Court largely (subject to the remedy question) affirmed a habeas grant by the Sixth Circuit on a\u00a0Strickland\u00a0<\/em>claim. \u00a0In so doing, the Court seemed to create a loophole in its\u00a0Harrington\u00a0<\/em>rule. \u00a0 \u00a0Nancy King has explained this aspect of\u00a0Lafler\u00a0<\/em>very effectively in the\u00a0Yale Law Journal Online<\/em><\/a>, so I\u2019ll just quote her at length:<\/p>\n

[T]he Court managed to avoid what would have been a difficult hurdle for the petitioner to clear in seeking relief under \u00a7 2254(d)(1), the provision of the habeas statute that conditions relief upon a showing that the state decision was either \u201ccontrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.\u201d The state court\u2019s vague wording allowed the Court to characterize the state decision as \u201ccontrary to\u201d Strickland and to bypass the issue of whether it was an \u201cunreasonable application\u201d of Strickland.<\/p>\n

The Court\u2019s opinion in Lafler turned on the following two paragraphs of the state court decision:<\/p>\n

\u201cTo establish ineffective assistance, the defendant must demonstrate that his counsel\u2019s performance fell below an objective standard of reasonableness and that counsel\u2019s representation so prejudiced the defendant that he was deprived of a fair trial. With respect to the prejudice aspect of the test, the defendant must demonstrate a reasonable probability that, but for counsel\u2019s errors, the result of the proceedings would have been different, and that the attendant proceedings were fundamentally unfair and unreliable.<\/p>\n

\u201cDefendant challenges the trial court\u2019s finding . . . that defense counsel provided effective assistance to defendant during the plea bargaining process. He contends that defense counsel failed to convey the benefits of the plea offer to him and ignored his desire to plead guilty, and that these failures led him to reject a plea offer that he now wishes to accept. However, the record shows that defendant knowingly and intelligently rejected two plea offers and chose to go to trial. The record fails to support defendant\u2019s contentions that defense counsel\u2019s representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea bargain for defendant.\u201d<\/p>\n

The five Justices in the Lafler majority concluded that this decision was \u201ccontrary to\u201d Strickland, because in their view it failed entirely to apply the case: \u201cRather than applying Strickland, the state court simply found that respondent\u2019s rejection of the plea was knowing and voluntary. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel.\u201d The state court, in the majority\u2019s view, \u201capplie[d] a rule that contradicts the governing law set forth in [Supreme Court] cases.\u201d<\/p>\n

By contrast, the four dissenting Justices read the second paragraph of the state court\u2019s analysis as that court\u2019s application of the Strickland standard. The state court\u2019s statement that \u201cdefendant knowingly and intelligently rejected two plea offers and chose to go to trial,\u201d the dissenters explained, \u201ccan be regarded as a denial that there was anything \u2018fundamentally unfair\u2019 about Cooper\u2019s conviction and sentence, so that no Strickland prejudice had been shown.\u201d Because it referenced and applied the correct test, they reasoned, the decision was not contrary to established federal law. Furthermore, this opinion was not an \u201cunreasonable application[] of clearly established law,\u201d the dissenters argued, \u201csince this Court has never held that a defendant in Cooper\u2019s position can establish Strickland prejudice.\u201d<\/p>\n

Had the state court used language more easily read as rejecting Cooper\u2019s claim under Strickland\u2019s prejudice standard, the majority would not have had the option of characterizing the state decision as \u201ccontrary to\u201d Strickland. Instead, the Court would have had to explain why the state decision was an unreasonable application of Strickland. And under that standard, Cooper would have lost. It would have been reasonable, before Lafler, for a state court to decide that it was not \u201cprejudice\u201d under Strickland to end up with a fair trial and legal sentence after missing out on a more favorable plea deal because of counsel\u2019s incompetence. No decision of the Supreme Court had held that the Sixth Amendment protected defendants from losing plea deals, as opposed to fair trials, sentencing proceedings, or appeals, and several of the Court\u2019s decisions had pointed in the other direction.<\/p>\n

. . . .<\/p>\n

Indeed, a petitioner who had challenged a state court decision that said virtually nothing except \u201cdenied,\u201d after a bare citation of the correct Supreme Court precedent, would have had a much more difficult time than Cooper did convincing a federal court that the decision was \u201ccontrary to\u201d established federal law, and would instead have had to meet Richter\u2019s exacting \u201cunreasonable application\u201d standard. As the Court explained in Richter, \u201cWhere a state court\u2019s decision is unaccompanied by an explanation, the habeas petitioner\u2019s burden still must be met by showing there was no reasonable basis for the state court to deny relief.\u201d . . .<\/p>\n

On its face, Lafler\u2019s \u201ccontrary to\u201d analysis leaves the daunting \u201cunreasonable application\u201d standard of Richter in place\u2014both decisions were authored by Justice Kennedy, and the Court carefully avoided discussion of the \u201cunreasonable application\u201d standard. But the decision in Lafler appears to have loosened the \u201ccontrary to\u201d standard a notch for future cases, encouraging petitioners to argue that the state court never applied the correct federal precedent (even when that precedent is cited or described), instead of arguing than that the court\u2019s application of federal law was unreasonable. The combination of Lafler and Richter also suggests that when reviewing state court criminal opinions, \u201cless is more\u201d\u2014a summary state denial will not be disturbed unless all possible (hypothetical) applications would have been unreasonable, while a merits decision accompanied by an ambiguously phrased rationale that could be construed as failing to apply the correct rule is vulnerable to attack.<\/p><\/blockquote>\n

Cross posted at Life Sentences.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining. \u00a0More specifically, in\u00a0Lafler v. 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