The Frye & Lafler Decisions: From the Frye Pan Into The Fire?

Perhaps the wisest words in the recent Supreme Court decisions come from the dissenting opinion of Justice Antonin Scalia in Lafler v. Cooper:

In many—perhaps most—countries of the world, American-style plea bargaining is forbidden in cases as serious as this one, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial. In Europe, many countries adhere to what they call the ‘legality principle’ by requiring prosecutors to charge all prosecutable offenses. …

In the United States we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense . . .

(Emphasis added).

While the majority decisions in Lafler v. Cooper and Missouri v. Frye should, of course, be praised for acknowledging both the prevalence of plea bargaining and counsel’s critical role in that process, they appear certain to move the discussion in a direction that is more harmful to our system, not less. In every instance in which a plea offer is made, it will almost certainly be more favorable than a result that occurs after trial. Are we, as defense attorneys, now being given the message that we should use our best efforts to persuade the defendant to accept a plea offer, or risk the seemingly inevitable argument—if the defendant is convicted at trial—that we provided ineffective assistance? Will the fears associated with going to trial now include the attorney’s own concern that he will be accused of failing sufficiently to advocate for the plea? And did the prosecution just get handed yet more leverage?

The recent U.S. Supreme Court decisions in Missouri v. Frye and Lafler v. Cooper address circumstances that are certainly troubling on their face: a defendant was offered a particular plea, did not accept the offer, and ended up with a less favorable outcome. In Frye, defendant eventually plead guilty, but he did so pursuant to a plea bargain that was less favorable than an offer that had been made earlier. It was undisputed that counsel failed to communicate the earlier plea offer. On the subsequent plea, which followed yet another arrest for driving with a revoked license, he was sentenced to three years in prison. At post trial hearings, defendant testified that, had he been informed of the prior offer, he would have plead guilty to the misdemeanor and served 90 days in jail. The Missouri Court of Appeals held that defendant had demonstrated ineffective assistance, because he “pled guilty to a felony instead of a misdemeanor and was subject to a maximum sentence of four years instead of one year.”

In Lafler, defendant was aware of the plea offer that included a recommendation of a sentence of 51 to 85 months, and rejected it on advice of counsel and went to trial. There was “a concession” that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance because counsel advised the defendant that the prosecution could not prove an intent to murder. At trial, defendant was convicted and sentenced to 185 to 360 months in prison.

According to the Supreme Court, the “beginning point” for the discussion of counsel’s obligation in plea bargaining was its 1985 decision in Hill v. Lockhart, 474 U.S. 52 (1985), which addressed the flip side of the issues regarding nonacceptance of a plea offer. In Hill, defendant alleged ineffective assistance based on his entry of a guilty plea, claiming that his counsel had failed to advise him of the time that he would end up serving in prison. The Court held that no violation was established because “the defendant had not alleged that . . . he would have elected to plead not guilty and proceed to trial.”

Twenty-five years later, in Padilla v. Kentucky, 559 U.S. ___ (2010), the Court again considered the issue of ineffective assistance in relation to the entry of a guilty plea, where counsel had failed to advise the defendant regarding immigration consequences.

According to the Frye Court, those decisions made plain the “the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea.” In Frye, on the other hand, the Court considered a defendant’s failure to enter a plea, and the extent to which a claim of ineffective assistance may exist based on the advice that preceded the failure to enter a plea.

The Court initially focused on the procedural differences between those two circumstances, and the obvious fact that—where a plea is not entered—there may be no court proceedings in which the court can establish on the record that the defendant has a full understanding of the nature and consequences of his decision. Added to that is the fact that “ninety seven percent of federal convictions” are the result of guilty pleas. The Court even cited to a remarkably candid observation that defendants who go to trial “receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.” Citing Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006). The same idea was repeated in Lafler, in which the Court described the pre-trial offer as the sentence that a defendant “would have received in the ordinary course,” while the “expected post trial sentence” is “like the sticker price for cars; only an ignorant, ill-advised consumer would view full price as the norm and anything less a bargain.”

Given those circumstances, the Frye Court readily concluded that “criminal defendants require effective counsel during plea negotiations.”

But what are the duties of defense counsel in the plea bargain process? We don’t have to answer that question, the Court quickly stated. But it is at least clear that counsel has the duty to communicate the terms of a “formal offer.”

Once the ineffective assistance of counsel has been established, the analysis turns to the second prong of the traditional Strickland standard: whether the defendant can establish prejudice. In the Hill situation, where a plea was entered, the defendant must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. In Frye and Lafler, the Court defined the prejudice that must exist in relation to the nonacceptance of a plea: the defendant must demonstrate “a reasonable probability” that he or she would have accepted the plea offer, “a reasonable probability [that] neither the trial court nor the prosecution would have prevented the offer from being accepted or implemented,” and that the conviction or sentence would have been less severe. Lafler, 566 U.S. at 5.

In the Frye dissent, Justice Scalia points out the difficulties attendant to defining the obligations of counsel at the plea bargaining stage, and insists that the plea bargaining process should instead be regulated by a legislature “penalizing the attorneys who made such grievous errors” instead of “penalizing (almost) everyone by reversing valid convictions or sentences.” His Lafler dissent appears more heated, focusing on the fact that the defendant ended up receiving a “fair trial.” According to Justice Scalia, the Court “has never held” that the Sixth Amendment requires the advice of competent counsel “before the defendant rejects a plea bargain and stands on his constitutional right to a fair trial.”