In the Supremes

In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners:  what are the “rules” and standards for IAC in regard to pretrial negotiations.

Lafler v. Cooper and Missouri v. Frye.

the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.


the Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

h/t SCOTUSBlog  for the above quick summaries.

Here is the lead in to Frye by Justice Kennedy.

The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. See Strickland v. Washington, 466 U. S. 668, 686 (1984).  This case arises in the context of claimed ineffective assistance that led to the lapse of a
prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.  The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.  If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance.  Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today. See Lafler v. Cooper[.]

Neither of the two cases relate to Denedo/Padilla or Miller issues.

The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question.

Frye Slip op. at  8.

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.

Frye Slip op. at 9.

I don’t know about others, but I’ve always considered this to be the rule for courts-martial.  I can’t see how you can properly represent an  accused and not pass on PTAOs that have originated from the government.  Here the counsel didn’t pass on the offer.  The case is remanded for the appellant to show prejudice:  that he would have accepted the offer, it wouldn’t have been cancelled, and the judge would have accepted the plea.  This error ought to be reasonably infrequent.

Lafler is the harder case.  The appellant was advised of the deal.  But on the advice of counsel rejected the deal, went to trial, and got a heavier sentence.  Strickland’s two prong analysis applies.  It appears the parties agreed that the counsel’s advice was so wrong to be IAC.  Lafler, slip op. at 1.  That means the issue was how to apply Strickland and prejudice.  The court went into a lengthy discussion of the potential remedies but ultimately “remanded for further proceedings consistent with this opinion.”

I see Lafler generating some post-trial litigation – and the potential for a quagmire.  Does counsel provide IAC when she recommends turning down a PTA prior to the 32?  Or does the IAC have to relate to a PTA that is closer in time to the trial when the investigation is complete, there has been sufficient discovery, and there has been a fuller case development?  In other words how much information does the defense counsel have to have to properly advise on a deal.  Keep in mind that the government is usually pretty restrictive on discovery in the early stages of a case.  How much extra time is prejudicial.  In Lafler the appellant was sentenced to 3.5 times more confinement.  What if it’s a SPCM.  Counsel recommends turning down an offer for four months and the accused is convicted and sentenced to six (a 50% increase)?  What if it’s a GCM.  Counsel recommends turning down an offer of one year for pleas to a sexual assault, fraternization, providing alcohol, adultery, and 107.  The accused is then acquitted of the sexual assault (so no registration), is convicted on everything else, and then gets 18 months (a 50% “penalty” for turning down the deal)?   Can something like this not happen in courts-martial?

Here is how the media is casting the decisions.

Defendants who receive deficient or absurdly bad plea bargaining advice from their lawyers have had their constitutional rights violated and may have their sentences thrown out[.]

Huffington Post

The U.S. Supreme Court said for the first time that criminal defendants have a constitutional right to a competent lawyer when they are offered a chance to plead guilty in exchange for a reduced sentence.

Voting 5-4, the justices today sided with two men who say they received inadequate legal advice. One said his lawyer never told him of a plea offer, and the other said his attorney convinced him he couldn’t be convicted of intent to murder because the victim was shot below the waist.

Bloomberg News

A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors’ offers of less prison time for convictions and guilty pleas.

Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions "absurd" and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain.

Associated Press

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