Ineffective Assistance of Counsel During Plea Bargaining

A plea bargain is a critical step in anyone’s criminal defense. It is ineffective assistance of counsel when an attorney gives bad advice regarding a plea bargain, a situation that I am all too often asked to "fix" when the defendant comes to me seeking a second opinion after his conviction. Earlier this week, the Supreme Court of the United States heard arguments in Lafler v. Cooper, No.10-209, andMissouri v. Frye, No. 10-444. These cases deal with the question of the appropriate remedy, if any, when a defendant in a criminal case turns down a favorable plea deal/offer from the government because of bad advice from his lawyer.

These cases deal with whether the prosecution is required to re-offer the same plea when the original one was scuttled because of the ineffective assistance of counsel. In Fry, the Supreme Court is dealing with a situation where the defendant’s lawyer failed to even tell him that the prosecution offered a deal. In Cooper, the defendant turned down an extremely favorable plea bargain because of bad advice.In Fry’s case, the non-communicated plea offer eventually expired and the defendant was forced to accept a much harsher sentence when he finally did plead guilty. In Cooper, the defendant chose to go trial instead of taking a reasonable offer, was convicted and to be blunt, got slammed at sentencing. In each case, the Court is questioning which situations require prosecutors to revive (i.e., offer again) the original deal when a case is remanded because of ineffective assistance of counsel.

The majority prediction here is that the Supreme Court will find these particular situations too "soupy" [to paraphrase Justice Scalia] to require that the prosecution revive a plea offer. However, while we await the Supreme Court’s formal decision it is important to keep in mind that a lawyer’s conduct during plea negotiations is now just as much subject to appellate scrutiny as his conduct during trial and any of the other critical phases of proceedings. What this means, at the least, is that an attorney must know he or she is always duty bound to communicate the specifics of any plea offer to his or her client regardless of his or her opinion about the merits of the same, and that it is advisable practice (indeed, a practice I follow myself) to properly "paper" such related communications by spelling them out in a letter to the client, especially in those instances where the client/defendant is likely to reject the communicated offer, despite an attorney’s advice to the contrary.

It is also important for attorneys to take time to make sure his or her client is aware of each and every element the government must prove against him or her at trial, along with the potential maximum penalties if convicted. In states where sentencing guidelines calculations are available, they should be carefully reviewed with the client and care should also be taken to discuss any and all available defenses, as well as the strength of the evidence likely to be presented against him. In other words, plea negotiations should never be seat-of-pants or "oh-by-the-way" hurried conversations with a client. Instead, they should be deliberate and substantive attorney-client conferences. While it is also my habit never to predict a jury verdict (one person cannot possibly be sure of the collective opinion of twelve, and there are too many in-court variables for any lawyer to know in advance precisely how any given case will turn out.), advice can and should be given as to what evidence is likely to be admitted and the impact it will tend to have on both the jury and the quality and strength of the government’s case, while at the same time being certain to advise that the ultimate choice of whether or not to proceed to trial in entirely up to the client.

Really though, the best thing to do is treat any related conversations with a client with the same degree of seriousness that Judges must use when they examine plea hearings and colloquies before they can conclude that any given plea is Constitutionally valid on grounds that it is knowing, voluntary and free from coercion. To be sure, any seasoned criminal defense attorney may have the occasional Bernie Madoff client who is not only ready to admit his guilt and plead guilty at the outset, but is also willing to accept any consequence he may be facing without appeal or objection (in that case 150 years). But, for the rest of one’s clients, plea bargaining is not just an art but a process; and one that is both serious and substantive and now subject to scrutiny.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828