Plea bargains, through a glass darkly

By MICHAEL KIRKLAND   |   Nov. 6, 2011 at 3:30 AM   |   Comments

WASHINGTON, Nov. 6 (UPI) -- The U.S. Supreme Court is historically averse to opening up a can of worms, so it comes as no surprise the justices looked darkly last week at cases asking them to consider whether defendants are constitutionally harmed when they pass up plea bargains through the actions of "ineffective" -- read incompetent -- lawyers.

If the high court were to turn the constitutional spotlight on plea bargains and lawyers it could have a tsunami effect: The "vast majority" of U.S. criminal cases are resolved by plea bargains, FindLaw tells us, and most legal analysts put the number around 95 percent.

Just the possibility of such a spotlight is enough to set off alarm bells in prosecutors' offices across the country -- tens of thousands of convicted inmates suddenly discovering they'd agreed to plea bargains through the advice of "ineffective counsel."

In one of the cases before the court, Missouri vs. Frye, Connecticut was joined by 28 other states to defend the finality of plea bargains -- the states said they have a "compelling interest ... in the finality of convictions" produced by plea bargains.

In the Missouri case, a defense attorney apparently didn't tell his client about a plea bargain offer from the prosecutor. But Connecticut and the other states argued in their brief the failure to tell a defendant of a plea offer, "though 'professionally objectionable,' does not constitute 'a breakdown in the adversarial process" required by the Constitution.

The defendants in each of the two linked cases heard by the Supreme Court last week are not the kind that rouse sympathy in the general public. In absolutely the most charitable terms, each could be described as "hapless."

On Aug. 14, 2007, Gailin Frye was charged in Missouri for driving without a license. Since it was his fourth similar offense, the charge was bumped to a class D felony.

The prosecutor offered Frye two options: three years in prison, with a substitute probation left up to the judge, and 10 days "shock" incarceration the with probation; or reduction of the charge to a misdemeanor and 90 days in jail.

Frye's attorney didn't tell him about the options. Meanwhile, he was arrested in another county on the same charge. He ended up pleading guilty to the original charge and received no probation and three years in prison.

A state appeals court threw out his guilty plea and said he should be given another chance at a plea deal.

In the second case, Anthony Cooper shot Kali Mundy four times in Wayne County, Mich., as she was running away from him, court records said. The rounds hit her twice in the right buttock, once in the hip and once in the right side of the abdomen.

Mundy was hospitalized for three weeks and survived.

Cooper was charged with three crimes: assault with intent to murder, possession of a firearm by a felon and using a firearm during the course of a felony. Conviction on the lead charge of assault with intent to murder carries a possible sentence of life in prison under Michigan law.

At a pretrial hearing, Cooper was offered a chance to plead guilty to that lead charge with the understanding his sentence would be at the lower end of 51 to 85 months -- in other words, he could be imprisoned for four years and a few months.

Cooper's lawyer said on the record that his client was rejecting the offer because the medical records -- Mundy was shot below the waist -- did not support assault with intent to murder and Cooper would wait for a better offer.

Cooper was then convicted as originally charged, and was sentenced to 185 to 360 months -- meaning a minimum of 15 years.

State appellate courts refused to reverse the conviction, but a federal judge and a U.S. appeals court ruled he should be re-offered the plea bargain.

Prosecutors in both cases asked the U.S. Supreme Court for review.

In its own brief to the high court in the Missouri case, the Obama administration argued: "The purpose of the Sixth Amendment right to effective assistance of counsel is to ensure the defendant receives a fair trial that reliably determines his guilt or innocence. That purpose is central to this [Supreme] court's cases defining the elements of an ineffective assistance claim."

Reporting on last Monday's argument was generally similar to that of David Savage, the Los Angeles Times' veteran Supreme Court correspondent. Savage wrote the justices "showed little enthusiasm ... for reopening the cases of criminal defendants who lost out on good plea deals based on bad advice or bungling by their lawyers."

Despite the unappealing aspects of the two defendants, their lawyers argued that they deserved justice -- or least "fundamental fairness" -- in a U.S. court.

"This man [Cooper] deserved to get the sentence he got, didn't he? He had a full and fair trial," Justice Antonin Scalia asked rhetorically from the bench. "A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence. How could it be unfair to give him the sentence that he deserved?"

Scalia told Michigan Solicitor General John Bursch: "I don't think our legal process is ... a bargaining game. It shouldn't be."

"Well, we could agree with that," Bursch said. "Bargaining is not what this is about, and that's why this court has held in [1977's] Weatherford [vs. Bursey] and other cases that there is no right to the plea bargain itself."

The difficulty of the Supreme Court argument for the defendants' attorneys is demonstrated by this exchange between Cooper's lawyer, Valerie Newman, and members of the bench.

Justice Anthony Kennedy: "We can think about adjudication as having a constitutional violation, injury and remedy. Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?"

Newman: "There wasn't -- there was no defense presented. There was no real defense presented at trial because --"

Justice Sonia Sotomayor: "Did he deny having committed the act of the shooting?"

Newman: "Never."

Sotomayor: "At trial?"

Newman: "No."

Then later.

Sotomayor: "I thought of this case, and you can correct me if I am wrong, that your client told the attorney from the beginning: 'I did it; I want to plea.'"

Newman: "That is correct. ... There was no question in this case at any step, at any stage of the proceedings and there was ... never anything from the trial attorney other than incompetent advice. He never went to trial for an acquittal. He went to trial because he believed legally his client would be convicted of a lesser offense that would put him in a better position than if he had accepted the plea. That's the only reason."

And later.

Newman: "I'm not saying literally no defense, and I apologize if that's what came across, but no cognizable defense. It was not 'mistaken identification' or 'we didn't intend to hit her.' I mean, he never contested the basic facts of that case."

Chief Justice John Roberts: "Something the jury could have accepted, right? Even if it's not legally true that if you shoot ... the person below the waist, that's not a defense, but I can see a reasonable juror saying he probably didn't intend to kill her. He shot her below the waist. Maybe that is not such a bad strategy."

The New York Times had its own take on the Missouri case in a Sunday editorial. "The Constitution's guarantee of effective counsel requires that a defendant be informed of important developments," the newspaper said. "That protection means little if it does not include a right to know about plea offers."

The justices should hand down a decision in the next few months.

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