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http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?pagewanted=all

Justices Ruling Expands Rights of Accused in Plea BargainsBy ADAM LIPTAKNew York Times, March 21, 2012

WASHINGTON Criminal defendants have a constitutional right to effective lawyers during plea

negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expandedjudges supervision of the criminal justice system.

Related*Sentencing Shift Gives New Leverage to Prosecutors (September 26, 2011)

The decisions mean that what used to be informal and unregulated deal making is now subject to newconstraints when bad legal advice leads defendants to reject favorable plea offers.

Criminal justice today is for the most part a system of pleas, not a system of trials, Justice AnthonyM. Kennedy wrote for the majority. The right to adequate assistance of counsel cannot be defined or

enforced without taking account of the central role plea bargaining takes in securing convictionsand determining sentences.

Justice Kennedy, who more often joins the courts conservative wing in ideologically divided cases, was inthis case in a coalition with the courts four more liberal members. That alignment has sometimes arisen inrecent years in cases that seemed to offend Justice Kennedys sense of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in apair of dissents he summarized from the bench, the court leaves all of this to be worked out in furtherlitigation, which you can be sure there will be plenty of.

Claims of ineffective assistance at trial are commonplace even though trials take place under a judgeswatchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be

common as well, given how many more convictions follow guilty pleas and the fluid nature of pleanegotiations.

Justice Scalia wrote that expanding constitutional protections to that realm opens a whole new boutique ofconstitutional jurisprudence, calling it plea-bargaining law.

Scholars agreed about its significance.

The Supreme Courts decision in these two cases constitute the single greatest revolution in the criminaljustice process since Gideon v. Wainwright provided indigents the right to counsel, said Wesley M. Oliver,a law professor at Widener University, referring to the landmark 1963 decision.

In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if

they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Courthas also required lawyers to offer competent advice in urging defendants to give up their right to a trial byaccepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the SixthAmendment.

The cases decided Wednesday answered a harder question: What is to be done in cases in which alawyers incompetence caused the client to reject a favorable plea bargain?

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and ElenaKagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed byconvictions presented all sorts of knotty problems. But he said the realities of American criminal justicerequired to the court to take action.

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year forwhich data was available, the corresponding percentage in state courts was 94.

In todays criminal justice system, Justice Kennedy wrote, the negotiation of a plea bargain,rather than the unfolding of a trial, is almost always the critical point for a defendant.

http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?pagewanted=allhttp://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?pagewanted=allhttp://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?pagewanted=allhttp://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?pagewanted=all

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Quoting from law review articles, Justice Kennedy wrote that plea bargaining is not some adjunct to thecriminal justice system; it is the criminal justice system. He added that longer sentences exist onthe books largely for bargaining purposes.

One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with drivingwithout a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.

But Mr. Fryes lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye

pleaded guilty without a plea bargain, and a judge sentenced him to three years.

A state appeals court reversed his conviction but said it did not have the power to order the state to reducethe charges against him. That left Mr. Frye roughly where he started, with the options of going to trial orpleading guilty without the benefit of a plea deal.

Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have acceptedthe original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. Hewould also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawnthe offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on,Mr. Frye would have to show that the court would have accepted the agreement.

There was reason for doubt that Mr. Frye could prove that prosecutors and the court would have ended up

going along with the original 90-day offer, as Mr. Frye was again arrested for driving without a licensebefore the original plea agreement would have become final.

Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas andSamuel A. Alito Jr., called all of this a process of retrospective crystal-ball gazing posing as legal analysis.

The second case, Lafler v. Cooper, No. 10-209, concerned Anthony Cooper, who shot a woman in Detroitin 2003 and then received bad legal advice. Because all four of his bullets had struck the victim below herwaist, his lawyer incorrectly said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years.He was convicted, and is serving 15 to 30 years.

Justice Kennedy rejected the argument that a fair trial was all Mr. Cooper was entitled to.

The favorable sentence that eluded the defendant in the criminal proceeding appears to be the sentencehe or others in his position would have received in the ordinary course, absent the failings of counsel, hewrote.

A federal judge in Mr. Coopers case tried to roll back the clock, requiring officials to provide him with theinitial deal or release him. Justice Kennedy said the correct remedy was to require the plea deal to be re-offered and then to allow the trial court to resentence Mr. Cooper as it sees fit if he accepts it.

Justice Scalia, here joined by Chief Justice Roberts and Justice Thomas, said this was a remedy unheardof in American jurisprudence.

I suspect that the courts squeamishness in fashioning a remedy, and the incoherence of what it comes upwith, is attributable to its realization, deep down, that there is no real constitutional violation here anyway,Justice Scalia wrote. The defendant has been fairly tried, lawfully convicted and properly sentenced, andany remedy provided for this will do nothing but undo the just results of a fair adversarial process.

Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining,said the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship.

It is going to be tricky, he said, and there are going to be a lot of defendants who say after theyreconvicted that they really would have taken the plea.

Justice Kennedy suggested several measures to help ensure against late, frivolous or fabricated claims.

Among them were requiring that plea offers be in writing or made in open court.

A version of this article appeared in print on March 22, 2012, on page A1 of the New York edition with theheadline: Justices Expand Right Of Accused In Plea Bargains.

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* Casey L.* Tallahassee, FL

NYT Pick. The fact that 95% of convictions come from guilty pleas is an outrage. Our Constitutionalrights are all beingviolated when people who are accused of crimes are persuaded to give up theright of trial by jury* March 22, 2012 at 6:48 a.m.

* Tom Cochrane* Westerville, OhioNYT PickAccording to Justice Scalia, the Court today took the egregious step of opening up a whole new field ofconstitutional law. Because, you know, we wouldn't want to let fairness for the accused get in the wayof the efficient operation of the courts or anything.* March 22, 2012 at 6:49 a.m.

* DennisG* Cape Cod

NYT PickAs a conservative libertarian, I welcome this decision.

Too many - far too many - cases are resolved through plea deals.In the interim, this brings somewhat greater accountability to the plea bargain process.Longer term, the solution is repeal virtually all federal laws, and most state laws, then outlaw pleadeals altogether, dispensing justice through the jury system, as our founders intended.* March 22, 2012 at 7:11 a.m.

* Kenneth Thomas* Nashville

Three years for driving without a license? Are you kidding? In Tennessee, I've seen that pled downto a $5 fine, plus court costs!!!

March 22, 2012 at 6:49 a.m

* Tom Weiss* Mt. Pleasant, MI

NYT PickThe plea bargaining process is a bad system. The police and prosecutors overcharge the defendant,many times issuing wildly inflated charges, some defense attorneys are accomplished at bargainingthe charges down, others not so much and the client then suffers. Misdemeanor assaults are chargedas felonies, and minor drug felonies charged as major drug dealing felonies with sentencing ranges in thedouble digits.As a defense attorney long experienced in the criminal justice system I shake my head at theabuses of the plea bargaining system, but am at a loss to suggest a good workable alternative.

March 22, 2012 at 8:25 a.m

* dave crow* sacramento, california

NYT PickI think it will now become commonplace for a trial judge to question the defense attorney--and thedefendant--before accepting a guilty plea. This will only take a few minutes and will help avoid part of theproblem of incompetent defense counsel.* March 22, 2012 at 10:07 a.m.

* Doug G* San Francisco

As a rule, two people guilty of the same kind of crime in the same circumstances shouldn't

end up with dramatically different sentences because one had access to a better attorney.* March 22, 2012 at 7:54 a.m