When Is It Unfair to Get a Fair Trial?

“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.

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There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.

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But what did the justices actually say today? That might give a better clue to what they might be thinking. Our take is a Roberts-Scalia-Kennedy-Thomas-Ginsburg-Alito majority against a Sixth Amendment remedy. Here are some selected quotes from the Lafler argument (the Frye argument is left as an exercise to the reader):

CJ Roberts — “How are you ever going to know that the defendant would have accepted the plea agreement? Because by not accepting it he has a chance of going scot-free. He’s going to have a fair trial, that’s the assumption, and he may be acquitted … presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not?”

Scalia — “Have you provided ineffective assistance of counsel if you are a lousy bargainer?” | “This man deserved to get the sentence he got, didn’t he? He had a full and fair trial. A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence. How could it be unfair to give him the sentence that he deserved?” | “We reinstate the offer, okay. He accepts the offer and it goes to the judge and the judge says, ‘no, this is outrageous. No, I’m not going to approve of this plea bargain.’ What happens then?” | “There is no prejudice unless [the defendant] would have accepted the deal. How are you going to know that he would have? Of course he is going to say that he would have, but how is a trial judge going to make a credibility determination on that?”

Kennedy — “Let’s say the remedy is it goes back before the judge … I should ignore everything that I learned during the trial?”

Breyer — “As I’ve looked at it, I don’t see the ineffective assistance of counsel within the AEDPA meaning…. So what am I supposed to do about that? … In my own opinion at this moment, perhaps no one else’s, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside.” | “So if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, ‘oh by the way, I didn’t tell you about this,’ and he gets a whole new trial?”

Ginsburg — “Explain why defective advice causing a plea, that qualifies [for relief], but defective advice causing a defendant to turn down a plea does not?” | “That [the defendant would have gotten a better deal] is certainly controverted, because of two interventions: The prosecutor can say ‘no deal; I’m withdrawing it,’ even after an initial acceptance; and the judge can say, ‘I think 51 to 68 is entirely improper for what this man did.”

Alito — “What if it had come to the prosecutor’s attention during this intervening time that your client had committed four or five other shootings? Would you still be entitled to specific performance?” | “Do you think it’s feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?”

Sotomayor — “Counsel, isn’t there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?” | “How can a trial be fair when the attorney is going into trial thinking [the stupid advice he’d given when counseling against taking a plea]?”

Kagan — “Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage, so why doesn’t that just meet the requirements of Strickland, both deficiency and prejudice … and … a different outcome.” | “You don’t contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you? … Because we have said that many times, isn’t that right?” | “To deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment — that’s what we’ve said, isn’t that right?” | “Have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase — where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?”

Thomas — “…”

So yeah, we’re calling it 6-3. What’s your call?