LEGAL VIEW: Pleas and bad lawyering

By Scott Forsyth

The Daily Record Newswire

Twenty years ago, two law professors wrote, "plea bargaining ... is not some adjunct to the criminal justice system; it is the criminal justice system." How true they were and are.

In 2010, 97 percent of criminal convictions in federal court were obtained by pleas of guilty or no contest. In 2006, 94 percent of all felony convictions in state courts were obtained by guilty pleas rather than trial.

Our Founding Fathers did not know plea bargaining. It became popular in the 1920s when Prohibition inflated caseloads. It became the institution we know, and the primary method for resolving criminal prosecutions in the 1960s, following the surge in street crimes.

The U.S. Supreme Court kept pace with the institutionalization of plea bargaining. In 1985 and again in 2010 it held that the Sixth Amendment's guarantee of effective assistance of counsel extends to the plea bargain, "a critical phase of litigation," Hill v. Lockhart, 474 U.S. 52 (1985); Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

The presence of counsel makes a difference in the outcome. Studies show that fewer defendants represented by counsel plead guilty. Fewer pleas of guilty mean fewer innocent persons convicted. Six percent of the persons exonerated by DNA pled guilty.

Hill and Padilla involved challenges to pleas of guilty. What happens if an attorney does not communicate a plea offer to a client or does communicate it with the clearly erroneous recommendation the client can do better at trial? On appeal, can the client have the offer reinstated so he can accept it?

That is the issue in two cases argued before the Supreme Court in October, now awaiting decision.

In the first case, Missouri v. Frye, 311 S.W.3d 350 (Mo. Ct. App. 2010), the state charged the defendant with the felony of driving with a revoked license. He pled guilty to the charge and was sentenced to three years in jail. Unbeknownst to the defendant, the prosecutor had communicated to his attorney an offer of a plea of guilty to a misdemeanor, resulting in 90 days in jail.

In the second case, Lafler v. Cooper, 376 F. App'x. 563 (6th Cir. 2010), the defendant gunned down a woman fleeing him. The state charged him with several crimes, including the intent to murder.

The prosecutor offered a deal where the defendant would plead just to the murder charge and serve 4 to 7 years. His attorney communicated the offer but recommended he reject it. According to the attorney, the state could not prove intent to murder because all of the woman's wounds were below the waist.

Needless to say, this advice was spurious. The jury convicted the client and the court sentenced him to 15 to 30 years in jail.

To establish the ineffective assistance of counsel a person must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for counsel's errors the result would have been different, Strickland v. Washington, 466 U.S. 668 (1984).

The states concede the conduct of the defendants' attorneys was unreasonable but argue this defect at the plea stage was vitiated by the subsequent conviction and sentencing stages, which followed constitutionally adequate procedures. To the states, the right to counsel exists to ensure a fair trial and not a fair plea bargain. If a defendant foregoes his right to trial, he has not been prejudiced by his ineffective assistance of counsel.

Nothing in Hill or Padilla indicates that the fundamental right to counsel at the plea stage varies on the outcome of the case. Furthermore, both defendants were prejudiced. They received lengthier sentences.

A trickier question is the nature of the remedy. Generally, a court will correct a constitutional violation by restoring the victim to the position he would have been in had the violation not occurred, to the extent possible. In the two cases before the Supreme Court restoration should mean vacating the convictions and requiring the states to reinstate the offers. While the states were not responsible for the violations, they should not benefit from them.

Just reducing the sentences is not enough in these cases, because the defendants were convicted of higher or more crimes than were part of the offers. Returning the cases to the trial calendars is also not enough. The error did not occur at trial but in the earlier plea bargaining.

Leaving the convictions intact, given the prominence of plea bargaining in the criminal justice system, would neuter the right to counsel. Acknowledged violations of the right require an enforceable remedy.

To preserve fairness in the plea bargaining process, the Supreme Court should decide in favor of the defendants.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or

Published: Thu, Feb 2, 2012