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Truth, justice, and the American style plea bargain.


The aspirations of the criminal legal system are sometimes unclear. Truth or factual accuracy is one aim and justice, a balancing of interests, is another. So it is that the Supreme Court has enlivened this debate through the prism of American-style plea bargaining. (1) In the course of two decisions reassessing the proper standard for evaluating ineffectiveness of counsel in the plea negotiation context, the Justices spoke to the core division in the administration of criminal law: pretrial settlement versus fair trial, right to counsel versus due process. (2) The outcome analysis that insures the integrity of plea bargaining is focused on the fulfillment of an extra-constitutional practice, since there is no constitutional right to a plea offer. (3) And it calls for compromising the truth of the case through a plea agreement to lesser charges in most instances or to negotiated facts. On the other hand, the trial process leads to an approximate legal truth without the market place concessions of a bargain. (4) But the balance between justice and truth depends on the nature of the proceeding and the extent to which they are aimed at resolution or fact-finding.

In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain. (5) This line of decisions has been followed most recently by Burt v. Titlow, (6) which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process? (7)

Underlying the Justices debate over the constitutionality of plea bargaining are the core values of truth seeking in the justice system. It pits the notion of the plea bargain's fact-confirming role against the trial's fact-finding function. Indeed, the hierarchy of accuracy in criminal cases has been changing. (8) Pretrial investigations are undergoing reforms in response to wrongful convictions and reexaminations of forensic science. (9) At the same time the accuracy and reliability of the trial as the final arbiter of correctness, and its ability to purge investigative shortfalls, has been diminished. (10) Lastly, the system's overarching emphasis on pleas versus trials suggests that the focus is now plainly on outcome--compromise and convenience rather than truth, if ever truth were the goal.

From arrest to resolution, every choice of the accused results in the assertion or waiver of an essential right. And, the decision to plead guilty waives the right to have the charges proved beyond a reasonable doubt, a conviction without trial. (11) Indeed, it is the choice of the accused to forgo the crucible of the trial for the compromise of the plea bargain. (12) Still, ineffective assistance of counsel deprives the defendant of making an informed, knowing, and voluntary choice by corrupting the process of information acquisition and exchange. (13) The damage can be so severe that even a fair trial cannot restore or validate the loss of the right to choose. A plea to the charge without concessions, without education, without information as to collateral consequences or punishment options or outcomes of conviction arises from ineffective counsel and the failure of due process. (14) Until recently, the U.S. Supreme Court paid scant interest to the bread and butter of criminal justice, but it is now focusing its full attention on the discount window.

The preference for certainty over accuracy detracts from truth-finding, which has no end. Thus, finality has become an end in itself, preserving the integrity of the trial by limiting postconviction analyses. So the presumption of innocence finishes with conviction; and the sanctity of the conviction is embodied in finality, the presumption of guilt. And yet, the diminishing returns of finality have resulted in the growth of mass incarceration, wrongful incarceration, and the costs they incur. (15)

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process. Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations. Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri u. Frye, Part III Lafler v. Cooper, and Part IV Burt u. Titlow. Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.


The accused has a fundamental right to a choice, whether to plead guilty or to go to trial. It is the sanctity of that choice that spurred the Supreme Court to screen plea negotiations through the lens of Strickland v. Washington s16 ineffectiveness of counsel standard. (17) There is also the exoteric acknowledgement that plea bargaining is the mainstay of criminal adjudications, a chief product of American justice. So it is that the defense lawyer's role as information creator, rights negotiator, and client advocate are taking center stage in the first act of criminal adjudication. Still, there are tensions between the interests served by a trial verdict and a plea bargain, the cognitive dissonance between accuracy of outcome and the fairness of process as the proper end of justice.

The plea bargain is a non-constitutional, statutory right (18) to what is essentially a contract of adhesion offered by the prosecution, (19) solicited or crafted by defense counsel, (20) and subject to judicial veto. (21) It is confined to a short menu of plea options independent of a bargain, which are limited to pleading to the top counts of the indictment, nolo contendere, or not guilty by reason of insanity (mental disease or defect). (22) And even a bargained for plea must fit within the statutory guidelines for lesser included offenses, which further restrict the options for conviction and sentence. Moreover, a plea bargain can encompass matters not before the court, such as dismissing open cases, recommending concurrent time to prison sentences or parole or probation violations. Hence, there are many non-factual motivations for pleading guilty unrelated to the truth of the case--most of which concern proportionality of crime to punishment or to proof. Nonetheless, the factors militating in favor of pleas are often systemic: risk avoidance, conservation of prosecution and court resources (trials, hearings, and motions), (23) docket backlogs, and efficiency and timeliness of dispositions. (24)

Plea bargains ask the defendant to conduct an entire trial in their heads and to judge themselves after some brief legal instruction. (25) Thus, the myth underlying plea bargains is that the accused is in the best position to adjudicate their own thoughts and actions even when they extend beyond their experience and knowledge. (26) The guilty plea cancels the presumption of innocence and becomes proof beyond a reasonable doubt. And yet, this same testificant whose credibility would be mercilessly assailed on cross-examination at trial is for the sake of procedure vested with the qualifications of judge, jury, prosecutor, and defense counsel. (27) Thus, by definition, the plea process is less true than the trial. While the accuracy rates of trials have been called into question, the crucible of the witness chair is infinitely more revealing than the self-assessment of the pleader allocuting from the bar.

The chief problems that afflict the reliability of a trial's outcome also impinge on the accuracy of the plea allocution, (28) in addition to the unique factors associated with the plea option. A well-counseled defendant might consider the weight of the evidence, credibility of witnesses, legal argument, and viable defenses--all of which militate in favor of legal truth. But without adequate investigation and legal analysis, the decision to plead or to go to trial will be poorly made--pitting against each other the competing values of personal truth, the need to confess or to be vindicated, and the systemic values of equal justice, legal truth, and administrative necessity.

The plea decision is based on provable and defensible realities. While the terms are negotiated by the lawyers in most cases, the defendant is the decider who must play out the entire trial in her imagination and filter her knowledge of the facts through the penal code, criminal procedure, and evidence law, as well as forensic science. And the experience of her attorney is the knowledge filter that must accurately relay the elements of the offense, the merits of the prosecution's case, the attitude of the judge on law and punishment, the defenses available and their likelihood of success, as well as any legal issues related to the defendant's perception and competency. (29)

When the defendant decides to plead guilty she enters a new phase. The plea allocution is a staged-confession or a whittled down trial. (30) Proof beyond a reasonable doubt is concentrated into the defendant's acceptance of guilt and the waiver of her trial rights. (31) Thus, the plea is mainly in the defendant's control, while the trial would be in her lawyer's. Entering the plea rests on the defendant's ability to allocute and to respond correctly as part of the court's colloquy; while the trial would have depended on the rules of evidence, procedure and counsel's skills at persuasion and usually without defendant's testimony. So it is that the influences that result in a plea will be different from those that compel the trial track, and neither is based on the objective truth but rather legal compromise. Pretrial innocence and guilt are legal commodities, situational legal truths. And their reality depends on public policy, proof, proper allocation of risks and benefits to the prosecution and the defendant, and judicial economy.

Indeed, the paths of the plea offer and trial are complicated by the interaction of human and legal factors. (32) The defendant, who possesses direct evidence, might be factually innocent, factually guilty or incompetent to self-assess, e.g., suffering from a mental disease or defect, amnesia or drug or alcohol addiction, or simply unapprehending of the significance of the event in the legal scheme. Every defendant shares the fear of a wrongful conviction, whether they are in fact innocent or guilty, still both are entitled to fundamental fairness. And without fairness, the strength of the prosecution's case and the availability of excuses or justifications cannot be evaluated. Thus, the choice to plead guilty and waive the right to trial might be of convenience, necessity, or inevitability. Indeed, the plea itself might be a legal fiction made compulsory by legal realities. (33)

Plea bargains are essentially built-in leniency, the reward for judicial economy and the minimization of risk for the accused. While trials have been called to task for their approach to factual analysis and the accuracy of convictions, the plea forestalls all criticism because the accused is allocuting or confessing voluntarily and the facts are stipulated and re-scripted. So the question must be asked: Wherein does justice lie when legal truth is sacrificed to legal expediency?


Galin Frye was a repeat offender. (34) He had three convictions for driving with a revoked license, and in 2007 he was arrested again on the same charge. (35) Under Missouri law, he faced a class D felony and maximum of four years in prison. (36) About three months later, the prosecution sent a written offer to Frye's attorney: (1) plea to felony charge and sentence recommendation of ten days in jail (shock time) or (2) plea to misdemeanor and sentence recommendation of ninety days in jail. (37) Both offers were set to expire on December 28th. (38) Frye's lawyer did not convey the offers to his client, and they expired. (39)

While Frye's preliminary hearing on this case was pending, he was arrested on a new charge for driving with a revoked license. (40) As to the original charge, he waived the hearing, pled guilty to the first offense, a class D felony, without any agreement, and, based on the prosecution's recommendation, the judge sentenced him to three years in prison. (41)

In a state court postconviction motion, Frye raised ineffectiveness of counsel apropos the failure to advise him of the plea offer. (42) He testified that he would have accepted the misdemeanor offer if he had known about it. (43) The lower court denied his motion, but the decision was reversed by the Missouri Court of Appeals. (44) They decided that Frye met the burden of demonstrating a Sixth Amendment violation under Strickland (45) The trial record showed that Frye's attorney was deficient due to a failure to communicate the plea offer. (46) This failure caused prejudice since it compelled Frye to plea to a felony, which exposed him to state prison time, and to forgo the misdemeanor option, which he would have accepted. (47) Thus, the Missouri Court of Appeals declared the guilty plea withdrawn and remanded the case to the trial judge in order to permit Frye his choice of going to trial or entering into a new plea bargain with the prosecution. (48) Following this decision, the Supreme Court granted the State's petition for certiorari to resolve the proper application of Strickland to plea negotiation and defendant's decision making. (49)

The Sixth Amendment requires the presence of counsel at all "[c]ritical stages" of criminal adjudication, e.g. arraignment, post-indictment interrogation, and lineups. (50) Writing for the majority, Justice Kennedy had no trouble identifying pretrial plea negotiation as a critical stage protected by the right to counsel. (51) And as such, the plea bargain demanded the effective assistance of counsel. (52) The Court's analysis was founded on two cases involving misadvice and inadequate advice. (53)

In Hill v. Lockhart, (54) defense counsel misinformed his client about the amount of time he had to serve before becoming parole eligible by overlooking his status as a second felony offender. (55) Applying Stricklands two-part test to "challenges to guilty pleas based on ineffective assistance of counsel," relief was denied because the petitioner, William Lloyd Hill, did not claim that he would have pursued trial instead of pleading guilty or the presence of special circumstances such as undue emphasis on parole eligibility in the decision-making process. (56) Reiterating the application of Strickland to plea negotiation, the Court in Padilla v. Kentucky held that defense counsel had a duty to correctly advise the defendant about the immigration consequences of his guilty plea, namely the risk of deportation--leaving open the question of establishing prejudice. (57) Both decisions illustrated the application of Strickland to the plea event and claims raised postconviction. (58)

The attorneys in Hill and Padilla tainted the plea process with inaccurate information, underestimating a sentence calculation in one case and the risk of deportation in the other. (59) In Frye, the problem was not with advice that related to an accepted plea, but the lawyer's omission of information that foreclosed the existence of a plea bargain. (60) Thus, Justice Kennedy articulated the distinction between outcome and process: "The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers." (61) In other words, it was how the plea was handled rather than the substantive advice about its effects that was determinative in Frye.

In most plea cases, such as Hill and Padilla, a record had been made before a judge attesting to the defendant's understanding of the offer, the options, and the rights being waived. (62) In those cases, the pleas had been accepted, albeit based on mistaken advice, and entered in court where some safeguards existed--most notably a record of what happened. Misunderstandings and even misadvice might have been remedied, while the defendant was in the dock. (63) The distinction, then, was between misinformation (bad choice) and no information (no choice). Thus, while misadvice can be remedied in the courtroom during the plea colloquy, a bargain discarded in a lawyer's office cannot. (64) The safeguards that attend proceedings before a judge do not filter through to pretrial negotiations between the prosecution and defense counsel or meetings that occur between defense counsel and the accused. (65) The attorney-client discussions are usually unrecorded and under the umbrella of privilege. (66)

Still, legal reality has shifted. The vast majority of criminal convictions are now the results of pleas, not trials. For all constitutional intents and purposes, the plea has become the trial. According to the Bureau of Justice Statistics cited by the Supreme Court, guilty pleas represent annually ninety-seven percent of federal and ninety-four percent of state convictions. (67) Thus, the Court was compelled to declare:
   The reality is that plea bargains have become so central to
   the administration of the criminal justice system that
   defense counsel have responsibilities in the plea bargain
   process, responsibilities that must be met to render the
   adequate assistance of counsel that the Sixth Amendment
   requires in the criminal process at critical stages. (68)

In fact, Justice Kennedy went on to cite sources that point out how the criminal justice system has adapted to promote plea negotiation. For instance, legislatures enact a wide range of sentences to encourage reductions for pleas and leave open the threat of maximums for exercising the right to trial. (69) In addition, the states' procedure laws create an assortment of charging instruments of comparable flexibility for plea reductions preindictment, even to misdemeanors like the untransmitted offer made to Frye. Still, even though pleading instruments, grand jury indictments, and sentences are set by statute, the plea bargain process is still largely unregulated and unattended by the court.

While plea reduction is advantageous to prosecutors husbanding resources and defendants who might be risk adverse, (70) it is also a compromise that undercuts a fair and objective conviction and sentencing--legal truth is thus reduced for convenience into social insurance. An innocent, almost innocent, or imperfectly guilty defendant might take a plea or sentence reduction to avoid the fate of a long punishing prison term imposed after trial. (71) Moreover, the high risk of wrongful conviction is a serious concern for defendants as highlighted by exonerations from the Innocence Movement, which often occur years, even decades, after judgment, if ever. (72) The accuracy rate of the criminal justice system factors into every decision. Even those who are to some degree factually guilty of something might fear to exercise their right to pursue an excuse or justification defense. The certainty of a plea overrides the potentiality of a trial, or even a suppression hearing. The low odds of successful postconviction review, sentence reduction on appeal, or early release on parole also militate against the litigation option. (73) Overall, the integrity of the adjudication process, the perceived and actual fairness of how it operates, plays a major role in defense strategy and decision making. And it tips the scales of justice from factual accuracy or truth to procedural and economic pragmatism.

Moreover, the plea bargain allocution becomes the new fact-finding event, a modified confession that is first cousin to the allegations in the indictment. Both factual guilt and sentencing terms can be negotiated and adjusted based on the range of statutory guidelines for lesser-included offenses and plea reductions, provided the trial is waived. (74) If not, the trial locks defendants into the top counts of the indictment and their associated mandatory minimums. (75) In addition, the commitment of resources and uncovering of aggravating evidence will harden the prosecutor's sentencing position after conviction--also reducing the likelihood of habeas relief or parole release later on.

Recognizing without resolving the cognitive dissonance created by a plea bargaining system, Justice Kennedy went on to address the role of counsel in this process. He began by sounding a cautionary note against dictating guidelines for the "art of the deal":
   Bargaining is, by its nature, defined to a substantial degree
   by personal style. The alternative courses and tactics in
   negotiation are so individual that it may be neither prudent
   nor practicable to try to elaborate or define detailed
   standards for the proper discharge of defense counsel's
   participation in the process. (76)

Thus, this phase of representation remains unregulated and unreviewed for now, except to the basic notion of effective assistance of counsel:
   [A]s 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.... When defense counsel allowed the offer to expire
   without advising the defendant or allowing him to consider
   it, defense counsel did not render the effective assistance the
   Constitution requires. (77)

Communication and explanation of the offer were paramount duties already found in ABA standards, codes of professional conduct, and state court decisions. (78) Without undertaking to define the precise standards or norms for negotiation practices, Justice Kennedy made important observations about safeguarding the process through formalization, e.g., record making, and taking steps to curtail "late, frivolous, or fabricated claims." (79) Of course, this concern about false or unsubstantiated claims suggests that any new ground for overturning a conviction has to be tempered by the belief that it will be abused. It is this inherent bias, underlying the Antiterrorism and Effective Death Penalty Act (AEDPA) (80) for instance, which might foretell the high burden and suspicious eye that will be cast on claims in habeas courts where they will be first adjudicated on remand. (81)

Overall, there are several key considerations. First, a "formal offer" implied documentation that can be reviewed later. (82) Second, rules could be enacted to require that offers should be made in writing "to ensure against later misunderstandings or fabricated charges." (83) Finally, such offers should be put on the record in open court at the pleading or pretrial stages. (84) Some of this required record-making already occurs in some jurisdictions, which the Court noted, and to some extent has been an informal practice among defense counsel conscious of ineffectiveness and malpractice claims. (85) In reality only the most basic information can be put on the record without invading the defense camp or creating a conflict of interest. (86) At a minimum, when the prosecutor puts an offer on the record it puts the client on notice that one exists, which directly addresses the communication deficiency in Frye. (87) The merits of the advice to be given were left for another day.

Having met the first prong of Strickland, the Court considered the prejudice to be shown from the failure to relay a plea bargain, resulting in a lapse or rejection of the offer. First, the defendant had to show "reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." (88) Second, they must establish "a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." (89) Finally, under these circumstances, "it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." (90)

The new application of Strickland hinges prejudice on a choice of plea options, not between plea and trial. (91) The whole approach, premised on the idea that there is no right to a plea offer, created a mental nunc pro tunc asking the defendant to put everyone back in the place they were before the damage was done. (92) Despite being deprived of the plea choice, it was the defendant who had the burden to reconstruct the thinking of the prosecutor and the judge--showing a "reasonable probability" that the plea could and would be offered again and that the trial court would accept it, and that it was most advantageous (reduced charge or sentence). (93) Of course, the continued sustainability of the plea agreement depends on many factors that might have changed since the original offer and the postconviction restoration of the option. (94)

In Frye's case, the deficient performance of counsel, the first Strickland prong, had been satisfied--there was no evidence in the record that his attorney had made any effort to communicate the offer or that Frye had prevented him from doing so. (95) Thus, the Missouri Court of Appeals properly found that his attorney's conduct did not meet an "objective standard of reasonableness." (96) However, the state court misread the prejudice analysis under Strickland, (97) After showing that he would have accepted the plea offer by virtue of the fact the he pled to the charge without a sentencing commitment, (98) Frye had two hurdles to overcome unacknowledged by the state appeals court--the "reasonable probability" of the prosecution reoffering the bargain and the court's acceptance, both of which were questions of state law. (99) Under state law, the prosecution had broad discretion to withdraw the offer, while the court's options were subject to debate. (100) Thus, the Supreme Court remanded the case back to the Missouri Court of Appeals to resolve the last two elements of the prejudice analysis, which seemed dubious in view of Frye's new intervening arrest. (101)

In this case, the plea bargain appeared to be the better option. But there will be plenty of instances where it might not be depending on the defendant's situation at the time. For instance, a plea might mean being sentenced to a lengthy term of probation opening the door to future violations and resentencing, when a short finite incarceration might have presented fewer risks. Or they might want to risk trial because a plea will mean instant revocation of parole, probation, or deportation or because it will become the predicate for enhancement or impeachment at an upcoming trial or factor into open cases. Frye might have wanted to fold the new arrest into a revised plea bargain, which would have been preferable to facing the charges separately. This is the decision that defendants must make nunc pro tunc.

Moreover, Frye must show that the prosecutor would not have withdrawn the offer and that the judge would not have rejected it. Asking them to ignore the intervening plea to the charge and the new arrest, which occurred in this case, is like trying to unring a bell. Since the defendant had not accepted the offer, he had no grounds to seek specific performance. From the perspective of a reviewing court, everything was in play. The prosecutor had no obligation to offer a plea or the court to endorse it. The defendant's postconviction willingness to accept a plea offer that he never knew about was not a de facto acceptance. Hence, none of those protections applied.

Justice Scalia, dissenting, upheld the banner for originalism by reading the Strickland rule as preserving a fair trial-centered jurisprudence. (102) Since there was no right to a plea offer, and the plea entered was free of attorney error, Frye's right to "fundamental fairness" had not been tainted. (103) In other words, he was the beneficiary of a fair and due process. Indeed, Frye's guilty plea validated the process. Accordingly, the lost advantage of an optional plea reduction did not detract from the defendant's procedural or substantive rights. (104)

The dissenters, Justices Scalia, Thomas, Alito, and Chief Justice Roberts, accused the majority of standing reason on its head by applying an "outcome-based test for prejudice," thus opening the door to constitutional error based solely on the suggestion of a different disposition. (105) And they feared that this decision would create an unnecessary and burdensome "constitutionalization of the plea-bargaining process." (106) Defining defense counsel's "plea-bargaining skills" or the measure of their adequacy and second guessing the thought processes of prosecutors and judges retrospectively would generate uncertainty and much collateral litigation. (107) In essence, Justice Scalia and the dissenters saw the Sixth Amendment as the guarantor of fair convictions, not fair bargaining. (108) And the remedy for errors in plea negotiation should be delegated to the tailor-made "sub-constitutional remedy" of legislative enactments or court rules. (109) So it is that this split in the Court's philosophy and the discretion to regulate the plea process will continue to be debated as plea negotiation ineffectiveness cases are vetted under this remodeled Strickland interpretation.

The following year, the Missouri Court of Appeals put these guidelines into practice. (110) First, they found that the prosecution had the option to withdraw a plea offer, notwithstanding its acceptance by the defendant, before it went to the judge. (111) Thus, court acceptance of the plea arrangement became the threshold. (112) Of course, the unreasonable refusal to keep the offer open or to reoffer the bargain might raise a question of prosecutorial vindictiveness, and hence due process, not addressed by the appeals court. (113)

Only the trial court's acceptance of the agreement would have provided the basis for a claim of a breach. (114) At the same time, the trial judge had unlimited discretion to agree, to refuse, or to reject a plea bargain. (115) And the terms could not be altered by the court; either it was embraced in toto or not at all. (116) Therefore, the only room for discretion in the execution of the plea agreement once accepted was in the sentence. (117)

The state motion court had not addressed the newly minted Strickland components of plea bargain viability based on anticipating prosecutorial and judicial discretion. (118) Since the Missouri appeals court did not have the fact-finding power of de novo review, the case had to be remanded for an "evidentiary" hearing. (119) And on the question of proof, it was noted by the Missouri Court of Appeals that the new pending charge, which could have been a game-changer, might not have been factored into the original plea bargain analysis. (120) In all likelihood, it probably did not come to light until after Frye's guilty plea and sentence were a fait accompli. (121)

Nonetheless, the first Strickland prong having been satisfied became law of the case. (122) If the motion court finds that the second prong has also been met, it will have to select the appropriate remedy, notwithstanding the conviction. (123) The plea entered did not erase the constitutional infirmity of the plea negotiation.

Finally, due to the new guidelines unknown at the time of the original plea, Frye will have the option to ask for an evidentiary hearing to introduce proof on the issues related to the prejudice prong as well as prosecutorial and judicial embracement of the plea bargain. (124) And this new "Frye" hearing will invite questions about the burdens of proof, sufficiency of evidence, and the implementation of the remedy in light of postplea incarceration and behavior. (125)


At its core, Frye represented a plea for plea remedy to a fatal constitutional error. But the companion case presented a different kind of trade. It might seem inconceivable that a defendant who received a fair trial can be heard to complain because he lost an opportunity for a favorable plea bargain, but this was the issue at the heart of Lafler u. Cooper. (126)

Anthony Cooper had been charged with assault with intent to murder after allegedly firing a gun at the complainant, Kali Mundy. (127) Missing a potentially fatal headshot, he chased after Mundy and ended up shooting her in the buttocks, hip and abdomen. (128) In addition to the top count, Cooper faced a number of other felony and misdemeanor charges and treatment as a habitual offender. (129) Unlike Frye who pled guilty without knowing that there was a better offer on the table, Cooper received two plea offers at different times from the prosecution and expressed a willingness to plead guilty. (130) However, relying on his lawyer's advice Cooper rejected them based on the idea that the State could not prove "intent" to murder since Mundy had been shot below the waist. (131) A third, less amenable, offer made on the first day of trial was also turned down. (132) Cooper was convicted on the entire indictment and sentenced to 185 to 360 months in prison. (133)

The crux of Cooper's postconviction challenge was ineffectiveness of counsel based on his attorney's bad advice to forgo a plea offer and sentence recommendation of fifty-one to eighty-five months and instead go to trial. (134) The trial court rejected his arguments and the Michigan Court of Appeals affirmed the conviction based on his "knowingly and intelligently" rejecting the first two plea offers. (135)

Cooper renewed his ineffectiveness claim in federal court under 28 U.S.C. [section] 2254. (136) Following AEDPA standards, the federal judge granted a conditional writ because the Michigan appeals court misapplied Strickland and Hill. (137) To answer the violation, the court ordered "specific performance" of the original plea offer along with the fifty-one to eighty-five months sentence recommendation. (138) On appeal the Sixth Circuit upheld the decision finding that even "full deference," required by the AEDPA, to the state court's interpretation of federal law was wrong on both prongs of the Strickland analysis. (139) First, the attorney's advice evaluating the evidence and discouraging the plea offer was incorrect. (140) And second, Cooper was prejudiced by the loss of the plea bargain. (141) The Supreme Court accepted the case for review and added another point for consideration that became the crux of their decision: "What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?" (142)

The Supreme Court reiterated that defendants had the right to effective assistance of counsel at the plea negotiation stage. (143) And the first prong of the Strickland test had been met by agreement of the parties that defense counsel's advice to reject the two plea offers for the reason that respondent Cooper would not have been convicted at trial was deficient. (144)

Thus, the decisive issue on this appeal was how to interpret the second prong, the prejudice analysis, under Strickland when the harm done by rejection of the plea offer, due to misadvice, was followed by a fair trial. (145) This put Cooper in the unenviable position of arguing that going to trial was harmful. While it seems counterintuitive, the Justices were forced to resolve whether a full and fair trial whitewashed ineffective assistance of counsel at the plea negotiation stage. Citing Frye, Justice Kennedy began with an outcome analysis, i.e., "the outcome of the plea process would have been different with competent advice." (146) In the Hill scenario, the defendant had to show that going to trial was preferable to having entered an ill-considered plea. (147) Unlike Hill, who lost his chance at a trial, Cooper had to prove that after having received a trial, the unfairness was in the lost plea opportunity.

In this setting, Cooper had to demonstrate that
   but for the ineffective advice of counsel there is a reasonable
   probability that the plea offer would have been presented to
   the court (i.e., that the defendant would have accepted the
   plea and the prosecution would not have withdrawn it in
   light of intervening circumstances), 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 judgment and sentence that in fact were
   imposed. (148)

Notably, the Sixth Circuit had followed this test, as other jurisdictions have, without burdening the operations of the justice system. (149)

The State of Michigan took the view that trials cleanse all pretrial sins. (150) But the State's interpretation of the Sixth Amendment, constrained by trial fairness, was rejected by the majority. Justice Kennedy explained that the right to effective assistance of counsel encompassed pretrial, trial, sentencing, and appeal. (151) The values being preserved went beyond fair trial to fair process. (152) In Cooper's case, the trial verdict resulted in a sentence inflation of three hundred percent. For the Supreme Court this constituted sufficient harm: "Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." (153)

The Court then addressed the State's argument that in order to show ineffective assistance of counsel there had to be loss of a substantive or procedural right. (154) Indeed, the majority acknowledged that the outcome was not always determinative without a "legitimate" prejudice, thus forestalling windfalls based on counsel's refusal to misread the law or employ unorthodox legal strategies. (155) But Justice Kennedy rejected Michigan's rationale. Cooper complained that his lawyer failed to live up to a proper constitutional standard. (156) The respondent had lost the benefit of the bargain directly due to overstated legal advice about his chances. And a perfectly good plea offer and sentence reduction were rejected. The majority clarified this pretrial scenario:
   If a plea bargain has been offered, a defendant has the right
   to effective assistance of counsel in considering whether to
   accept it. If that right is denied, prejudice can be shown if
   loss of the plea opportunity led to a trial resulting in a
   conviction on more serious charges or the imposition of a
   more severe sentence. (157)

Plea bargaining was a discretionary and a firmly established part of the criminal justice system, but not a right. (158) Thus, without the offer of a plea or its approval by the court, no prejudice arose. (159) However, once the government undertook to incorporate plea negotiation into the system, like the appellate process, the right to effective assistance of counsel joined it. (160)

Finally, Michigan fell back on its trial-centric argument that the Sixth Amendment was intended to protect the reliability of convictions, not plea bargains. (161) Nonetheless, Strickland was a process-oriented standard, which focused on the effect of ineffective counsel on the "adversarial process" in undermining a "just result." (162) Justice Kennedy highlighted this distinction:
   The goal of a just result is not divorced from the reliability of
   a conviction ... but here the question is not the fairness or
   reliability of the trial but the fairness and regularity of the
   processes that preceded it, which caused the defendant to
   lose benefits he would have received in the ordinary course
   but for counsel's ineffective assistance. (163)

Again, it was the process as a "whole" that was the proper subject of review. In other words, the Sixth Amendment's right to effective assistance of counsel had to be upheld for the benefit of the innocent and the guilty alike. (164) So a reliable trial did not preclude finding that a defendant's attorney did not act competently or in a way that would have changed the outcome. (165)

The sum of the State's position, as noted above, was that a fair trial absolved defense counsel of all errors occurring at the pleading stage. (166) Yet, this conflicted with the real nature of the justice system as perceived by the Supreme Court, for the most part, as "a system of pleas, not a system of trials." (167) Thus, the right to counsel had to be viewed through this prism, the centrality of plea negotiation and the consequent convictions and sentences. (168)

Acknowledging the reality of the justice marketplace, the Court had to next address the appropriate remedy where pleas displaced trials and sentences were more bargain than condign punishment. Justice Kennedy was careful to point out that remedying Sixth Amendment violations required calibration matched to the harm without overcompensating the defendant with a windfall. (169) The trial, like an election, should not be casually overturned. Thus, in the setting where a defendant missed a plea opportunity and went to trial, the two options for relief were either restoration of the sentence bargain or the plea bargain. The sentence bargain put the entire decision in the judge's hands. In this situation, the plea promise would have been to the same charges that the defendant would have faced at trial. The only benefit would have been the sentence promise by the court, albeit with or without input from the prosecution. (170) It would be incumbent on the defendant at a postconviction evidentiary hearing to demonstrate that there was a reasonable probability that notwithstanding ineffective assistance of counsel he would have pled guilty. And if successful, the judge then would be tasked with imposing the sentence recommended by the prosecution, the same sentence imposed at trial, or split the difference. (171)

The other choice was more complicated. In instances where a plea reduction was involved and the sentencing laws locked the court into a range dependent on that reduction, resentencing alone would be insufficient. Thus, the court might need to order the prosecution to reoffer the plea bargain before deciding on an appropriate sentence, after vacating the trial conviction and penalty. (172) Both the pure resentence and the plea bargain resentence would rely on the trial judge's discretion on remand. (173) While not engaging in a sentencing guideline type of analysis, the Supreme Court did identify a couple of salient factors: (1) the defendant's willingness to plead guilty and "accept responsibility"; (2) discretionary consideration of the status quo ante of the case before plea bargain rejection; (174) and (3) measures to interdict "late, frivolous, or fabricated" claims based on error-free buyer's remorse. (175)

As for Cooper's case, the Sixth Circuit could not determine for AEDPA purposes whether the Michigan appellate court had reached the ineffective assistance of counsel claim or what rule of law had been applied, correctly or not. (176) Still, this was no impediment to review, since the state appeals court did take notice of the claim albeit without applying Strickland. (177) Instead, the Michigan court held that defendant's decision was "knowing and voluntary," which was the wrong standard. (178) By overlooking Strickland in its assessment of the ineffectiveness of counsel claim, the state court opened the door to federal habeas review. (179) And, as mentioned earlier, the first Strickland prong, deficient performance, had been conceded by all parties. (180)

As for the prejudice prong, it was apparent that but for his attorney's advice, Cooper and the trial judge would have accepted the plea offer. (181) Due to the imposition of a sentence after trial that was three times higher than the sentence recommendation tied to the plea bargain, prejudice under Strickland was established. (182) The Supreme Court did not endorse the district court judge's specific performance remedy but instead indicated that the proper remedy was to order the prosecution to reoffer the plea bargain. (183) If Cooper were to accept the plea, then the state trial judge would have the discretion to vacate the trial conviction and resentence based on the prosecution's original recommendation, or to vacate the judgment for some of the counts and resentence accordingly, or to let the trial conviction and sentence stand. (184) Thus, the respondent would gain a chance at receiving a plea that sets aside a trial, but which still would have many variables and unknowns as to the outcome. (185)

The risks and benefits of resentencing have already been touched on by the Supreme Court in Frye, and to some degree in Cooper. But there will be problems that will inevitably come to light, and frankly too many to list. For instance, there might be new aggravating factors that surfaced post-plea offer as well as new rehabilitation evidence, credit for time served under a vacated sentence, parole proceedings and early or supervised release that might be nullified, and changes in sentencing laws, policies and restrictions. Also, the prosecution might raise appeals over their discretion in setting plea terms on remand, rather than being locked into a plea offer that they can no longer endorse or which would be unsupportable under current law. Finally, there might be new issues to further complicate the matter, such as whether a resentence should run concurrent or consecutive to new or pending charges, pendency of postconviction motions on substantive issues, updating records such as criminal histories or offender registries, and other collateral consequences. (186)

Again, Justice Scalia decried the majority's minting a "new field of constitutionalized criminal procedure: plea-bargaining law." (187) And he pointed to the cloud descending on the practice of justice that would obscure and impede the administration of plea bargaining, in addition to the unaddressed issues mentioned above. (188) Moreover, assuming that Cooper had a right beyond receiving a fair trial, the plea bargain standard set by the majority was a "new rule" unanticipated by the Michigan court and therefore unreviewable. (189) And the remedy of nearly unfettered discretion for the trial judge seemed too formless for a constitutional harm. (190)

The dissenters in Cooper believed that the right to effective assistance of counsel was intended to protect the trial and those phases of the case that impacted on litigation. (191) Specifically, Justice Scalia derided the invention of a right to effective plea bargaining, which included counseling before rejecting a plea offer, because it went beyond the areas of plea negotiation recognized in Padilla v. Kentucky, Iowa v. Tovar, (192) and Hill v. Lockhart, (193) For the dissenters, the trial is the thing. Indeed, a fair trial ended all inquiry over a lost plea offer. Thus, plea bargaining was only a spoke on a wheel anchored by due process. If it did not lead away from the reliability of the trial outcome, it had no constitutional significance. (194) Fairness under Strickland applied solely to the trustworthiness of the trial process resulting in conviction, sentence, or appeal.

Indeed, according to Justice Scalia, the majority confused the origins of the right to effective assistance of counsel with the right to a fair trial. (195) For the dissent, the real question was "whether a defendant can establish prejudice under Strickland u. Washington ... while conceding the fairness of his conviction, sentence, and appeal." (196) The unwavering focus of the Strickland test was "fundamental fairness of the proceeding." (197) The plea bargain was a closed circuit unconnected to the result of a trial. And ineffective assistance of counsel in this circumstance did not "deprive the defendant of any substantive or procedural right" to which he was entitled, since there was no right to a plea bargain, and the plea bargain determination would not affect the outcome of a trial-an option that would still be available in the alternative to a plea. (198) The Strickland prejudice test should not have depended solely or even primarily on outcome, which diverted the analysis from fundamental fairness according to Justice Scalia. (199) In other words, a fair trial did not offend justice as compared with an unfair plea negotiation.

The dissent also pointed to a procedural bar. The Michigan appeals court had decided the issue on the merits, which should have precluded review under AEDPA. (200) While their statement of the prejudice standard might have been unartful, it did not undermine the Strickland analysis. (201) The vagueness of the state's opinion had been resolved, e.g., no finding of prejudice or no record of counsel's deficient performance. Thus, the majority could not find both to be an unreasonable interpretation of federal law under AEDPA. (202) The Sixth Circuit erred by accepting the case for review.

Justice Scalia focused attention on the unprecedented nature of the remedy--ordering the prosecution to reoffer the plea. (203) The dissent was puzzled by the need for the State to make the offer again and require the defendant to show that he would have accepted it when the court still had ultimate discretion to vacate the trial verdict or not, as well as adjust the sentence range. (204) Since, in their view, the choices in a plea bargain had no constitutional standing, the remedy was totally "discretionary" for an unconstitutional conviction. (205) Thus, the formlessness of the remedy bespoke the lack of real constitutional error in the first place. The result was to undo a fair trial based on a fault with an unconnected plea process. (206)

Notably, Justice Scalia offered a sobering addendum to Justice Kennedy's picture of the reality in today's criminal justice system. (207) Plea bargaining was undeniably prevalent but a necessary evil begrudgingly accepted. And as such, this practice had many faults:
   It presents grave risks of prosecutorial overcharging that
   effectively compels an innocent defendant to avoid massive risk by
   pleading guilty to a lesser offense; and for guilty defendants it
   often--perhaps usually--results in a sentence well below what the
   law prescribes for the actual crime. But even so, we accept plea
   bargaining because many believe that without it our long and
   expensive process of criminal trial could not sustain the burden
   imposed on it, and our system of criminal justice would grind to a
   halt. (208)

And the dissent took the majority to task for raising plea bargaining's importance to a "constitutional entitlement" and the essence of criminal justice. (209) This new mindset led to the absurd result of overturning the "gold standard" of a fair trial on account of the infringement of the new plea bargain "entitlement." (210) The dissenters also added that it would introduce more gamesmanship into criminal justice, i.e., a "sporting chance theory of criminal law," which focused on the odds of getting the best deal rather than the most just result. (211)

In a separate dissent, Justice Alito added his criticism of the inevitable conflicts created by a remedy for a right undeserving of constitutional recognition. (212) Cooper had received a fair trial without constitutional error, so there was no basis for habeas relief. (213) Still, even assuming for the sake of argument that there was a cognizable harm, the remedy prescribed by the majority revealed the flaws in its reasoning. Justice Alito noted two scenarios that made a totally discretionary remedy problematic: (1) post-plea offer revelation of new aggravating information; and (2) the considerable amount of judicial and prosecutorial resources that would have to be expended when the reoffer is rejected. (214)

On remand from the Sixth Circuit, the federal district court vacated its earlier decision ordering specific performance and instead required the prosecutor to reoffer the plea agreement. (215)

Overall, the Lafler decision reflected the Supreme Court's conflicting views of the role of plea bargaining versus trial and its place in the constitutional landscape. On the one hand, it exists at the core of the new reality where pleas have assumed the end of trials. On the other hand, there was great apprehension about the abuse of process that might occur from elevating its importance, and the deep-seated fear that the defendant might have his cake and eat it too. In any case, the remedy is not without peril.

For the defendant, there might be no offer, or one that is less favorable than before; emergence of new aggravating factors might increase the sentence recommendation; and changes in the public policy landscape might toughen both the prosecution and judicial approach to crime enforcement. And, of course, there is the judge's mindfulness of post-plea information, e.g., updated presentence report, new aggravating or mitigating facts from a plea allocution or trial testimony. (216) And then there is the bird in the hand conundrum. Before seeking to vacate a plea or trial verdict, the defendant ought to be counseled about the worst-case scenarios that might result from success on appeal. (217) Peeling apart a bargain, for instance, can reopen the case without any benefits, exposing the defendant to top count charges and a higher sentencing bracket. (218) Inevitably, new facts or intervening events will influence the composition of a new plea bargain and sentence.
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Title Annotation:Introduction through III. The Lafler Curve, p. 825-859; Miscarriages of Justice
Author:Strutin, Ken
Publication:Albany Law Review
Date:Mar 22, 2013
Previous Article:The federal sentencing guidelines and the pursuit of fair and just sentences.
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