March 26 (Reuters) - The Supreme Court's rulings last week
bolstering defendants' rights to effective counsel during the
plea bargaining process drew praise from criminal defense
attorneys, who said the decisions would help improve pre-trial
rights for their clients.
But before Lafler v. Cooper and Missouri v. Frey will begin
to impact the way defense lawyers handle plea negotiations,
state and federal courts will have to resolve lawsuits by
defendants seeking to overturn their convictions based on
inadequate legal representation.
Once those decisions begin trickling down and creating a new
body of law, lawyers will likely shift the way they deal with
"Today a public defender can meet the client and say 'The
government has offered a deal, if you are guilty you can go home
tonight and if you are innocent you can wait in jail some more.
You have 15 seconds to decide,'" said Albert Alschuler, a
professor emeritus at the University of Chicago Law School and
an expert on plea bargaining.
"That's probably not going to cut it anymore. The lawyer is
going to have to know something about the case."
In Lafler v. Cooper, a Michigan case, Anthony Cooper took
his lawyer's advice and passed up a plea deal that would have
sent him to prison for four to seven years for shooting a woman
seven times. Instead, he went to trial and was convicted on all
counts and sentenced to serve at least 15 years in prison. The
lawyer had told Cooper he would not be convicted of assault with
intent to murder because he shot the woman below the waist.
In that lawsuit, the majority held that when a lawyer's bad
advice caused the defendant to reject the plea bargain and then
stand trial, the defendant could now seek to have the conviction
In Missouri v. Frye, a case where the defense attorney did
not communicate prosecutors' plea offers to his client, Galin
Frye, the majority said that defense counsel as a general rule
has a duty to inform his client of the deals.
Lawyers concede that in very rare cases defense counsel, in
order to make the most money in the least amount of time, might
urge a client to plead guilty rather than go trial. But the
behavior of the defense attorneys in the Supreme Court cases was
almost unheard of. The decisions, lawyers say, basically mandate
defense lawyers do the job they ought to be doing anyway.
Rather than face a jury or judge, almost all defendants opt
to plead guilty, often in the hope of obtaining a lesser
sentence. Guilty pleas account for 97 percent of federal
convictions and 94 percent of state convictions, noted justice
Anthony Kennedy, who wrote the majority opinions in both cases.
"The Supreme Court is finally catching on to just what
percentage of criminal justice is dispensed through plea
bargaining," said American University law Professor Stephen
Vladeck. "The Court may be late to the party, but it is arriving
The rules governing plea negotiations differ from state to
state. In some states, for example, prosecutors are not required
to put a plea offer down on paper. State and federal courts are
also under pressure to favor a quick resolution to cases in
order to avoid the time and costs associated with trials.
But Wednesday's Supreme Court opinions will force judges to
slow the plea process down at least enough to satisfy themselves
that defendants received proper legal advice before pleading
At a guilty plea proceeding in Manhattan Federal Court on
Monday, judge Lewis Kaplan asked a defense attorney if he had
given his best advice to his client during plea negotiations.
"In light of the Supreme Court's decisions last week, I
suppose I should ask you if... any other plea offers have been
communicated to you that you have not shared with your client?"
Kaplan asked attorney Barry Berke. "Have you given him (your
client) your best judgment?"
Kaplan later accepted the guilty plea.
In state courts, the opinions could have a more wide-ranging
impact and may eventually change local plea rules.
Zeke Perlo, of the Los Angeles County Bar Association where
he helps indigent defendants get legal representation, said he
hoped the rulings would help "kill off" a so-called "Early
Disposition" program, which aims to ease clogging in the courts
by offering quick deals to defendants accused of minor crimes.
Under the local program, defense lawyers are given limited
time and resources to research the alleged offense, which makes
it difficult for lawyers to properly advise clients on whether
they should accept a plea, said Perlo.
As a next step, some defense lawyers suggested that the
court should focus on increasing oversight of plea negotiations,
where they say the government has too much power and far more
"Competent advice of counsel in the plea bargaining process
is essential, but let's not scapegoat defense lawyers in a
process dominated by the government's immense investigative
resources and charging power," said JaneAnne Murray, a criminal
defense attorney who teaches at the University of Minnesota Law
"I hope that Frye and Lafler signal a deeper commitment on
the part of the Supreme Court to scrutinize all parties'
behavior and transparency in this pivotal but generally
unregulated arena of the criminal justice system."
The Supreme Court cases are Lafler v. Cooper, No. 10-209,
and Missouri v. Frye, No. 10-444.
(Reporting By Basil Katz)
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