Chemerinsky: Effective Assistance of Counsel Now a Right in Plea Bargaining
As the flurry of end of the term decisions is about to begin from the U.S. Supreme Court, it is important to not lose sight of two cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned.
Both cases were 5-4 decisions, with Justice Anthony M. Kennedy writing a majority opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. In Frye, the defendant was charged with driving with a revoked license. The prosecutor wrote to Frye’s defense counsel and offered two different plea possibilities with a maximum sentence of 90 days in jail. Frye’s lawyer did not communicate the plea offers to his client and Frye was convicted and sentenced to three years in prison.
The court concluded that plea bargaining is a “critical stage” of criminal proceedings and thus the right to effective assistance of counsel applies. Justice Kennedy noted that 97 percent of federal convictions and 94 percent of state convictions are gained via guilty pleas.
The court applied the test from Strickland v. Washington, decided in 1984, for determining whether there had been ineffective assistance of counsel. Under Strickland, a defendant must show first that counsel’s performance is so deficient as to negate the Sixth Amendment right to counsel, and, second, the defendant must demonstrate “prejudice” from the inadequate representation. As to the former, the court held 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.”
As to the latter requirement, the court said: “In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” The court remanded the case for the lower courts to decide whether this requirement for prejudice was met.
In Cooper, a defendant who shot and wounded the victim was charged with several crimes, including assault with intent to murder. The prosecutor offered a plea deal with a recommended sentence of 51 to 85 months in prison. The defendant initially indicated a willingness to accept the plea, but then rejected it after his attorney convinced him that the prosecutor could not prove intent to murder since the victim was shot below her waist. The defendant was convicted of all counts at trial and sentenced to 185 to 360 months in prison.
The court rejected the government’s argument, accepted by Justice Antonin Scalia’s dissenting opinion, that there can be no claim of ineffective assistance of counsel if the defendant is convicted after a fair trial. The court disagreed that the Sixth Amendment’s right to counsel exists solely to ensure a fair trial. In fact, the court noted that the defendant “received a more severe sentence at trial, one 3-1/2 times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.”
The court applied the two-step analysis from Strickland and found that there was ineffective assistance of counsel. The court noted that all of the parties had conceded that counsel’s performance had been deficient and said “[a]s to prejudice, respondent has shown that but for counsel’s deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea.”
It is significant that Cooper came before the court on a petition for habeas corpus so that relief could be granted only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. Sec. 2254(d)(1). The Supreme Court held that this standard was met because the court was applying the clearly established law set forth in Strickland.
These cases are important on many levels. First, they follow the Supreme Court’s 2010 decision in Padilla v. Kentucky, which held that the failure of a lawyer accurately to inform a criminal defendant of the immigration consequences of a guilty plea constituted ineffective assistance of counsel. Recently, the court granted certiorari for next term in Chaidez v. United States as to the important question of whether Padilla applies retroactively. Padilla, Frye, and Cooper show a court that clearly believes that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage.
Second, these cases likely will change how plea bargaining sometimes occurs. Plea bargaining is often informal, sometimes taking place through conversations between a prosecutor and a defense lawyer. As Justice Kennedy noted in Frye, “[s]tates may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. … [and] formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.” All of this may add a significant degree of formality to what often is an informal process.
Third, there may now be a large number of defendants claiming ineffective assistance of counsel at the plea bargaining stage. The court, in granting relief in Cooper, was explicit that it was not creating a new right but applying the existing right to effective assistance of counsel and test from Strickland. In an enigmatic sentence repeated in both Frye and Cooper, the court said: “[T]he prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction.” But it is not at all clear what “measures” the court is referring to.
Finally, courts will need to decide what is sufficient for a showing of “prejudice.” In both cases, the court says that prejudice requires that the defendant show that he or she likely would have accepted the plea, that the prosecutor would not have withdrawn it, and that the court would have allowed it. But it is unclear how these determinations are to be made.
In a term with many blockbuster decisions, few will have more effect on the practice of law and courts than Frye and Cooper. In a nation where 95 percent of all criminal convictions are gained via guilty pleas, the court’s holding of a right to effective assistance of counsel in plea bargaining is likely to have significant consequences.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.