Ineffective Assistance Claims in Plea Bargains: The Supreme Court Confronts the Road Not Taken

This past March, the United States Supreme Court rather quietly effected what one commentator called “…the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.” (New York Times, March 21, 2012) While such pronouncements always involve risk of exaggeration or over-simplification, there is no doubt that the decisions in Missouri v. Frye, 566 U.S. — (2012) and Lafler v. Cooper, 566—- (2012), at least carry the potential to measurably impact how plea bargains are negotiated and entered in our state and federal courts.

Plea-bargaining (pleas of guilty to be more precise) constitutes the overwhelming majority of business handled by the criminal courts. As Justice Anthony Kennedy, writing for the two 5-4 majorities, noted citing Department of Justice statistics, 97% of all federal criminal cases are resolved via a plea, as opposed to a trial. The percentage for state cases is marginally less at 94%, but still these numbers confirm what all practitioners know and have known for many years: most defendants do not go to trial. The reasons are legion; the most common being that the risk of a jury verdict is not worth taking, especially when a deal is in the offing for a lesser charge or a more lenient sentence.

Since plea bargaining now “…is the criminal justice system,” or so says Justice Kennedy, there has been a steady evolution in Supreme Court jurisprudence on the issue of what role a defendant’s constitutional right to the effective assistance of counsel (articulated in Strickland v. Washington, 466 U.S. 668 (1984)) should play in evaluating counsel’s performance in a scenario in which a defendant ends up pleading guilty.

Two prior Supreme Court decisions predominate: Hill v. Lockhart, 474 U.S. 52 (1985) and Padilla v. Kentucky, 559 U.S. —-(2012)). Together, they stand for the proposition that claims of ineffective assistance of counsel in pleas of guilty are, in fact, governed by Strickland’s two-part analysis: first, that counsel’s performance must be found to have been deficient and, second, that as a result of or but for counsel’s unprofessional errors, the result of the proceeding would have been different.

The decisions in Frye and Lafler take this analysis a step further: what if the alleged ineffective assistance of counsel led not to the acceptance of a plea offer but to its rejection? What if a favorable offer of a plea was made but never conveyed to the client (the fact in Frye) or what if a favorable plea offer was rejected because of an attorney’s deficient and inaccurate legal advice to the client (the case in Lafler)? Can a defendant “unring the bell” after losing out on a plea opportunity, or is it just too late?

The two cases are a departure from the Hill/Padilla line of authority since they turn on something that did not happen, as opposed to something that did. This is a more complicated construct, and Justice Kennedy, in essence, admitted as much, since the majority failed to resolve the cases of either Mr. Frye or Mr. Lafler and remanded both back to their respective lower courts for further proceedings.

But notwithstanding the difficulties inherent in any “what if” analysis, the Supreme Court did hold that a Strickland ineffective assistance claim can properly lie with reference to a plea that was not taken, as it could with one that actually was.

The path for a defendant seeking to avail him or herself of this relief will be a steep one. First, the defendant must show “a reasonable probability” that he or she would actually have accepted the presumably more favorable plea had they received competent representation. Second, the defendant must demonstrate that the eventual plea would really have been entered without either the prosecution cancelling it or the court refusing to enter it.

Both of these prongs will pose knotty, if not frequently insurmountable proof problems for the defense. While Justice Scalia in dissent bemoans the creation of “plea bargaining law” as a new constitutional field of criminal procedure, it remains to be seen exactly how many outcomes can be successfully affected by these new rulings. Nonetheless, the constitutional rights afforded criminal defendants have been supplemented and expanded in scope. Defense lawyers, prosecutors and judges will all have to accommodate this new reality.