Ineffective Counsel In Plea Negotiations Reviewed By Supreme Court

The Supreme Court today heard arguments in two cases on whether a defendant’s Sixth Amendment right to effective counsel is violated when the defendant’s attorney provides deficient or erroneous advice during plea negotiations, resulting in a sentence at trial that is harsher than had the defendant accepted the plea offer.

In Lafler v. Cooper, the defendant (Cooper) shot an acquaintance and was charged with assault with intent to murder, as well as various related charges. The prosecutor offered to defendant’s counsel a deal that, if accepted, would have allowed Cooper to plead guilty to assault with intent to murder and face a sentence of 51-85 months imprisonment. Defendant’s counsel erroneously believed that because the victim was shot below the waist, the prosecution would be unable to prove the necessary element of intent to murder, and thus advised Cooper to reject the plea deal and go to trial. At trial, the jury found Cooper guilty on all charges, and imposed a sentence of 185-360 months in prison, a sentence approximately four times greater than the initial plea offer.

In Missouri v. Frye, the state of Missouri charged the defendant Frye with driving with a revoked license.  On November 15, 2007, the state’s attorney sent Frye’s counsel a letter offering two different plea agreements.  The prosecutor gave Frye’s attorney until December 28, 2007, to respond to the offers.  Frye’s attorney did not tell his client about the offers, and the deadline subsequently lapsed.  On December 30, 2007, Frye was again arrested for driving with a revoked license.  Frye was sentenced to three years imprisonment.  Frye first learned about the initial plea offer while serving his 3-year sentence, and moved to vacate his conviction based on ineffective assistance of counsel.  Fry argued that had he known of the offer, he would have accepted the offer of serving 90-days imprisonment.

The two cases were argued separately but consecutively.  In both cases, the arguments focused on whether the plea bargaining phase, as opposed to arraignment or sentencing, is a “critical phase,” i.e. a time in which a criminal defendant is guaranteed the right of effective assistance of counsel under the Sixth Amendment.  The state in both cases argued that the Sixth amendment guarantees a defendant effective counsel at critical stages, but there is no constitutional right to a plea bargain.

Justice Kagan took issue with this assertion, pointing out that 98% of criminal cases are disposed of through plea negotiations and not trial, and without effective counsel at the plea negotiation stage, most defendants would be at considerable disadvantage.  Justice Kennedy too questioned this argument, asking if it would make a difference whether a plea negotiation was taking place in a capital case, where the absence of effective counsel could be the difference between life in prison and the death penalty.

The Court is expected to rule on the cases later this term.