WASHINGTON, March 21 (Reuters) - The U.S. Supreme Court on
Wednesday extended the constitutional right to effective legal
assistance in cases of plea bargain deals that are rejected or
lapsed due to bad lawyer advice.
Splitting by a 5-4 vote, with moderate conservative Justice
Anthony Kennedy joining the court's four liberals in two cases,
the majority held that the right to effective counsel applied to
informal plea bargain negotiations that take place between
criminal defendants and prosecutors.
In the second ruling, the majority held a defendant must
show "a reasonable probability" the plea offer would have been
accepted by the judge when a lawyer's bad advice caused the
defendant to reject the plea bargain and then stand trial.
The pair of rulings in cases from Missouri and Michigan
could allow convicted criminals to seek to reopen their cases
after they passed up favorable plea bargains because of
ineffective assistance of their lawyers.
In both cases, the criminals said they had been denied their
constitutional right to effective assistance of counsel because
of mistakes by their attorneys during plea negotiations. The
The rulings could have broad impact as about 95 percent of
all criminal cases nationwide are resolved through a plea
agreement, not a trial.
Kennedy in one of the opinions said that a defense counsel
as a general rule has a duty to communicate to the client formal
prosecution offers of a plea deal on terms and conditions that
may be favorable to the accused.
To show harm when a plea offer has lapsed or been rejected
because of a lawyer's bad performance, Kennedy said defendants
must show they probably would have accepted the more favorable
plea offer if they had received effective legal advice and that
the plea deal would have been accepted in court.
When a defendant shows ineffective assistance has caused the
rejection of a plea leading to more severe sentence at trial,
the remedy must "neutralize the taint" of a constitutional
violation," he said in the other opinion.
Chief Justice John Roberts and Justices Samuel Alito,
Clarence Thomas and Antonin Scalia dissented.
COULD SOW CONFUSION
Scalia, who took the rare step of reading parts of his
dissent from the bench, said there was no doubt that the
defendants in the cases were convicted and sentenced under fair,
constitutionally valid procedures.
"Until today, no one has thought that there is a
constitutional right to a plea bargain," he said. "Today's
opinion opens a whole new field of constitutionalized criminal
procedure: the field of plea-bargaining law. The court announces
this new field in opinions that almost seem designed to sow
"In today's cases, the court's zeal to bring perfection to
everything requires the reversal of perfectly valid, eminently
just, convictions. It is not wise; it is not right," Scalia
In the Michigan case, Anthony Cooper passed up a plea deal
that would have sent him to prison for four to seven years for
shooting a woman four times.
His lawyer told him he would not be convicted of assault
with intent to murder because he shot the woman below the waist
and missed a shot to her head.
Cooper went to trial, was convicted of assault with intent
to murder and on other charges, and received a sentence of up to
30 years in prison.
In the other case from Missouri, Galin Frye was charged with
driving without a license in 2007. A prosecutor offered two
alternative plea agreements.
In one, the prosecutor said Frye could plead guilty in
exchange for a 90-day sentence. But Frye's lawyer at the time
failed to tell him about the offers.
After the offers expired and after Frye was arrested again
for driving with a revoked license, he pleaded guilty and
received a sentence of three years in prison.
The Supreme Court's majority opinions sided with Frye and
Cooper and sent the cases back to lower courts for further
The Obama administration had supported the argument by
prosecutors in the two cases that the constitutional right to
counsel only ensured a fair trial, and that defendants do not
have a right to a plea bargain, including one that results in a
The Supreme Court cases are Lafler v. Cooper, No. 10-209,
and Missouri v. Frye, No. 10-444.
For Lafler: John Bursch and B. Eric Restuccia, Michican
For Cooper: Valerie Newman, Assistant Defender, State
Appellate Defender Office.
For Missouri: Shaun Mackelprang, Missouri Assistant Attorney
For Frye: Emmett Queener, Craig Johnston and Melinda
Pendergraph of Woodrail Centre.
(Reporting by James Vicini)
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