Ann Arbor's Wheaton leads team-- Dykema attorneys contribute to ABA amicus brief

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By Cynthia Price

Legal News

Even though he is an associate, attorney Mark Magyar of Dykema has already had his name on the title page of an American Bar Association amicus curiae brief to the United States Supreme Court.

The exciting opportunity came about because he had circulated his name at the law firm as interested in pro bono appellate work.

When Jill M. Wheaton, leader of Dykema's Appellate Practice Team, was approached by the State Appellate Defender Office (SADO) she asked Magyar to help.

"Mark had done appellate work with his previous firm in Illinois, and at the same time I heard really good things about him by people who'd been working with him," Wheaton commented.

Of course, at the time neither knew that they would end up working on an ABA brief. Initially, they worked with Valerie Newman of SADO, who, by sheer coincidence, was a college sorority sister of Wheaton's.

The case was Lafler v. Cooper, which was originally tried in Wayne County. Anthony Cooper was charged with assault with attempt to murder after he shot repeatedly at a female victim, wounding her in the hip and buttocks as she fled.

Cooper's attorney advised him, according to Newman's current brief, that he "could not be convicted of assault with intent to murder because the gunshots he fired struck the fleeing victim only below the waist." This "affirmative misadvice" resulted in Cooper rejecting a pre-trial plea bargain. (As did his attorney, on the record.)

Again according to Newman's brief, "The parties in this case agree that respondent Anthony Cooper received advice from his counsel that was objectively unreasonable."

Magyar adds that Cooper, who was convicted and sentenced to a significantly longer prison stay than would have resulted from the plea bargain, sought remedies in both the Michigan court system and the Federal.

The United States District Court for the Eastern District of Michigan ruled that Cooper was entitled to relief and found that "the most appropriate remedy is to grant a writ of habeas corpus ordering specific performance of Petitioner's original plea agreement, for a minimum sentence in the range of fifty-one to eighty five months, the plea Petitioner would have accepted if counsel had been competent."

The Sixth Circuit Court of Appeals affirmed that.

The petitioner in this case, Blaine Lafler, is a warden in the prison where Cooper is held. Michigan Solicitor General John Bursch, formerly also a Grand Rapids attorney, is the Counsel of Record for Lafler, working out of the Michigan Attorney General's office.

When the ABA learned that the U.S. Supreme Court (SCOTUS) justices had agreed to hear the case, the organization decided its membership had a stake in the matter. SCOTUS will consider it in conjunction with a case that presents similar issues, Missouri v. Frye (where counsel failed to notify the defendant about the plea bargain offer altogether).

This opened up the opportunity for Dykema's participation. At that point, Newman felt that Wheaton's and Magyar's time would be better spent assisting with the amicus brief the ABA would enter, recommending the Dykema attorneys to the ABA because they were now highly familiar with the facts in Lafler v. Cooper.

Comments Magyar, "My thought was that it was exciting to be able to put forward our arguments to the Supreme Court on what we thought was a very important issue."

"It is rare for the ABA to file an amicus brief, but both cases involve issues of effective representation by attorneys on which the ABA has long-established standards," said Wheaton.

The ABA had also submitted an amicus brief in the related 2010 case of Padilla v. Kentucky, which established, according to the SCOTUS blog, "The lawyer for an alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported.

"Thus, the Court concluded, Padilla's circumstances fell within the scope of Sixth Amendment protection and were subject to analysis under the test established in Strickland v. Washington."

In keeping with Wheaton's statement, in both the Padilla and the Lafler v. Cooper/Missouri v. Frye amicus briefs, the ABA focused on its already-existing standards, published as "The ABA Model Rules of Professional Conduct."

Both briefs acknowledged that, as noted in the dissenting opinion on Rompilla v. Beard, the guidelines "do not establish the constitutional baseline for effective assistance of counsel."

However, the Rompilla decision and others, ultimately including Padilla, relied on the ABA standards as "valuable measures of the prevailing professional norms of effective representation."

At issue are the limitations of the Sixth Amendment to the U.S. Constitution. The amendment reads "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

How far-reaching this effective assistance of counsel must be, and what constitutes ineffective assistance, has often been debated.

As Magyar notes, "Historically that right has been considered to be affecting whether a criminal defendant had a fair trial. But what we've seen in recent history, especially in the last half of the last century, increasingly criminal cases are resolved by the plea. When 95% of felony convictions result from a plea, it is so critical to protect the defendant at that point."

The brief argues that even when what follows is constitutionally sufficient, such as a fair trial for Anthony Cooper or the court's acceptance of a guilty plea in Missouri v. Frye, these proceedings "do not remedy a violation of a defendant's constitutional rights at the critical plea stage."

When they accepted the cases, SCOTUS justices added a question they wanted to see deliberated.

They asked, "What remedy, if any, should be provided for ineffective assistance of counsel during plea negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?"

Wheaton and Magyar agree that the response to this is "sticky."

Wheaton recognizes that it is very difficult to set aside a trial and a jury's finding of guilt. Magyar acknowledges that righting the wrong could cause a conflict between different levels of authority.

But, he adds, "The Supreme Court has held in the Morrison case that when there's a constitutional violation, they have [the court has] the authority to tailor the remedy to remove the constitutional taint."

Magyar said that developing the brief was a broadly collaborative process, but one he enjoyed. "It was great, very interesting to see some of the inner workings of the ABA. They give very thoughtful and serious consideration to a case and when they want to get involved, they insist that every position be fully vetted."

Magyar, who is in Dykema's Business and Commercial Litigation Group, graduated magna cum laude from Western Michigan University before receiving his law degree from the University of Michigan. In addition to litigation, he helps clients with regulatory issues; he is trained in Alternative Dispute Resolution.

Before starting with Dykema last fall, Magyar was a litigation associate with a Chicago firm. He comes from Michigan originally, and says he returned here because he and his fiancee, also a Michigan native, "had made the decision that we would like to end up back in our home state. I had figured out that this is a legal community I would want to practice in." The two will marry next month.

At the end of October, Dykema will fly Magyar in to Washington DC so he can view oral arguments before the Supreme Court.

Published: Mon, Aug 29, 2011

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