by Jack Escobar

The Supreme Court recently issued a pair of landmark decisions in Missouri v. Frye and Lafler v. Cooper. (For appellate advocacy wonks like myself, the oral argument in Lafler will be of particular interest to you.) The two cases collectively hold that the Sixth Amendment protects criminal defendants’ right to effective counsel during the plea bargaining process. After Lafler, if a defendant receives ineffective counsel at the plea bargaining stage, and the defense lawyer’s failure to properly advise his client causes the client to reject a valid plea bargain that he would have otherwise taken, the defendant has a Sixth Amendment right to have his conviction and/or sentence reconsidered by the trial court.

Defense attorneys and their clients are hailing Lafler as a watershed ruling for the 21st century. Meanwhile, some prosecutors deride the Lafler rule as an unnecessary headache and an impediment to swift, fair justice.

So why is Lafler provoking such strong reactions from both sides of the bar? There are at least three major factors at play here.

First: By their very nature, Supreme Court decisions impact the entire nation. Changes to plea-bargaining procedure have particularly powerful and wide-ranging impacts, simply because some 90% of all criminal cases are resolved by plea bargain.

Second: We know that the Lafler rule will alter the plea-bargain playing field, but to what extent is not yet clear. There is an ongoing discussion on Reddit of what the second-tier effects of Lafler and Frye will be.

Will prosecutors offer fewer deals, to avoid the risk that they might inadvertently give culpable defendants a technical loophole to avoid punishment? Will defense attorneys advise their clients to go to trial more often, gambling that a post-conviction Lafler hearing will give their client a second bite at the plea-bargaining apple if they lose?

Perhaps most pressingly, how should trial judges handle Lafler claims? The Supreme Court’s new rule is somewhat vague on what the proper remedy is for ineffective counsel at the plea-bargaining stage: depending on the nature of the ill-fated deal, the defendant may have given up a lesser sentence on the original charge, or to conviction and sentencing based on a completely different (and lesser) charge.  Complicating matters futher, it is unclear exactly what kinds of conduct by defense counsel invoke the Lafler rule in the first place. Exactly when is the State obliged to reoffer a plea deal to a supposedly misguided defendant?

As Orin Kerr observed for the Volohk Conspiracy, Frye addresses the relatively clear-cut situation where an attorney fails to inform his client that a plea deal has been offered in the first place; but, Lafler involved the more difficult problem of a defense attorney who informed his client of the terms of an offered deal—but, gave his client the “extremely foolish” advice to take his chances on a jury trial despite the overwhelming evidence pointing to the defendant’s guilt. This part of the rule will be subject to varied and confusing interpretations by trial courts. How should an individual judge decide what kinds of defense advice are clearly “extremely foolish”? Would an attorney’s advice to reject a deal be “extremely foolish” if there is, “objectively,” a 99% chance of losing at trial? What about a 75% chance of losing? 1%?

Third: How can our modern, plea-emphasizing criminal justice system be reconciled with a textual view of the Constitution? The U.S. Constitution dates to the 1700s, and emphasizes the jury trial as the people’s primary means of enforcing their Constitutional right to due process. The Bill of Rights and the Fourteenth Amendment (as well as the Supreme Court precedents that interpret these Amendments) are quite clear: as many criminal cases as possible are to be tried in front of a jury of the accused’s peers. Our rules of evidence and procedure are (mostly) designed to promote trials, and largely assume that most cases will eventually come before an impartial fact-finder.

Yet, the system we actually have today is a process of negotiation. The Prosecutor receives the police report, the defense attorney disputes the factual basis of the police report, and (as popular imagination apparently perceives,) the defendant is probably guilty.

The central question of modern prosecution is usually not whether the facts support the crime the Government has alleged, but instead, how much punishment the defendant needs to accept in order to make the incident “go away.” Instead of asking whether the accused in this case is truly guilty, our system focuses on what the most utilitarian solution is given the overall condition of society.

Ostensibly, the American justice system still runs on the principle that it is better to let ten guilty men go free than imprison one innocent. Yet, for years, it has been clear that our plea-based system encourages every defendant to plead to the lowest charge offered by the State, rather than risk an all-or-nothing jury trial. We have seemingly made our peace with the idea that, because the police arrest the right guy most of the time, it is okay for the occasional innocent to plead to a lesser sentence/charge solely for the sake of avoiding the hardship and expense of a full-blown trial. We seem to believe that the “prosecution market” will adequately assess guilt in most cases, and in most cases, will assign the “proper” amount of punishment to the accused—without the need for judges and juries to do much of anything, besides rubber-stamp these non-public courthouse negotiations.

However, in this new Lafler era, lawyers and judges—and hopefully the public at large—will be compelled to reexamine these decades-old assumptions. With any luck—and enough protest on our part—perhaps America as a whole will begin to reconsider the difficult problem of plea bargaining. Will we keep the jury trial intact as a key safeguard of due process, or will we begin to develop a uniquely North American system of administrative criminal justice, where ultimate determinations of guilt and innocence lie with the police and professional prosecutors, instead of our fellow citizens?

The question is open, and it is up to us to decide what the final answer should be…though hopefully you can guess where my sentiments lie.

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