Supreme Court: Defendants Entitled to Adequate Assistance During Plea Bargaining

In Lafler v. Cooper, defense counsel convinced his client, who was otherwise agreeable to a plea agreement, to reject three plea offers. After conviction, the defendant was sentenced to a longer prison term than those previously offered. The Court found that counsel's advice implicated the defendant's Sixth Amendment rights, holding: “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler at 9.

Justice Antonin Scalia penned passionate dissents in both Frye and Lafler, insisting that the Court's decisions incorrectly “opened a whole new field of constitutionalized criminal procedure: plea-bargaining law.” Lafler, Scalia dissent at 1.
Justice Scalia does not believe the right to effective assistance of counsel is implicated “unless counsel's mistakes call into question the basic justice of a defendant's conviction or sentence.” Id. at 4. Errors during plea bargaining may be cured during a plea colloquy or at trial. Meanwhile, the Court's decision will require courts to engage in “a process of retrospective crystal-ball gazing posing as legal analysis” to determine what the defendant, prosecution, and court would have done if a defendant had been adequately advised. Frye, Scalia dissent at 3.

Together, Frye and Lafler stand for three propositions in a plea bargaining context: 1) The Sixth Amendment right to effective assistance of counsel extends to plea bargaining; 2) A defendant must show prejudice that caused him to miss a favorable plea offer; and 3) Remedies are available to a defendant who makes the requisite showing.

Extending the Sixth Amendment Right to Counsel to Plea Bargaining

In extending the right to the effective assistance of counsel to plea bargaining, the Court acknowledged that the Sixth Amendment applies to all “critical stages” of criminal proceedings, including certain pre-trial procedures, such as the entry of a guilty plea. See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009). The negotiation and consideration of plea offers, the Court reasoned, is unequivocally a “critical stage.”

The Court noted the pervasiveness of guilty pleas, explaining 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 ' .” Frye at 7; see Lafler at 11. Refusing to extend the Sixth Amendment protections to plea negotiations, therefore, “might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.'” Frye at 8, quoting Massiah v. United States, 377 U.S. 201, 204 (1964).

Demonstrating Ineffective Assistance in Plea Bargaining Context

When a defendant claims that “ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer,” the courts must apply the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984), to determine whether the alleged deficiency resulted in the denial of the defendant's Sixth Amendment rights. Frye at 12. Ineffective assistance claims have two components:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687 (1984). A defendant must make both showings to establish that an unfavorable result arose from the ineffective assistance of counsel. Id.

Neither Frye nor Lafler squarely addresses the first Strickland prong or otherwise specifies what constitutes “deficient” assistance. In Frye, the Court expressly declined to “define the duty and responsibilities of defense counsel in the plea bargaining process.” Frye at 8-9. Meanwhile, in Lafler, the Court posited only that ineffective assistance must fall “below an objective standard of reasonableness.” Lafler at 4.

Establishing Prejudice

In both decisions, the Court carefully considered what is required to show that prejudice resulted from counsel's deficient assistance. According to Frye, defendants “must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Frye at 11. Defendants must also show “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it ' .” Id. In sum,”it is necessary to show 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.” Id.

Importantly, the Lafler Court rejected the notion that Strickland prejudice cannot exist where the defendant “is later convicted at a fair trial.” Lafler at 5. The Court explained that it “has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself ' . 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.” Lafler at 7. Defendants have the right to effective assistance of counsel in considering whether to accept a plea offer. “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.” Id. at 9.

The Court also rejected the notion that the defendant's guilt obviates the need for effective assistance during plea bargaining: “The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney's deficient performance during plea bargaining.” Lafler at 11.

Fashioning a Remedy

The Lafler Court identified the appropriate remedy where a defendant demonstrates that ineffective assistance during the plea bargaining stage resulted in some prejudice. Lafler at 12.

Where a defendant pleads guilty to, or is found guilty of, the same charges he would have admitted in a prior plea offer, but receives a harsher sentence, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Lafler at 12. Similarly, where the defendant pleads guilty to, or is found guilty of, different or more severe charges than he would have admitted in a prior plea, “the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Lafler at 12-13.

The Lafler Court cautioned that “[i]n implementing a remedy in both of these situations, the trial court must weigh various factors,” including, but not limited to, “a defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions” and “information concerning the crime that was discovered after the plea offer was made.” But fashioning a remedy is largely discretionary with the trial court.

Implications of Frye and Lafler

The potential implications of Frye and Lafler have been the subject of much debate. Justice Scalia, dissenting in Lafler, argues that the newly created procedural right to the effective assistance of counsel during plea bargaining undermines the courts' ability to cure potential inadequacies through the defendant's admission of guilt during the colloquy, or through “a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward.” Id. As discussed above, Justice Kennedy rebuffed Justice Scalia's argument, reasoning that the “guarantee of a fair trial” is an insufficient “backstop” to cure errors that occur in the pretrial process. Lafler at 11.

According to the petitioners in Lafler, the Court has “open[ed] the floodgates to litigation by defendants seeking to unsettle their convictions.” Lafler at 13. Rejecting this argument, the Court reasoned that “[c]ourts have recognized claims of this sort for over 20 years, and yet there has been no indication that the system is overwhelmed by these types of suits or that defendants are receiving windfalls as a result of strategically times Strickland claims” Id.

Some defense counsel interpret Frye and Lafler as requiring counsel to persuade defendants to accept plea offers. This does not, however, appear to be the Court's thinking: The only affirmative burden placed on defense counsel is that he or she must advise the defendant of a formal offer. Even in Lafler, where defense counsel persuaded the defendant to reject a plea offer in order to pursue a virtually unsustainable defense theory at trial, the Court accepted that defense counsel's representation was deficient only because the parties so stipulated.

Conclusion

In white-collar cases, the Frye and Lafler requirements create new complications for practitioners evaluating the advisability of a plea. To protect the process and avoid unintended consequences, it will be prudent to document the negotiations process, exchange formal offers in writing, and consider making a formal offer part of the record during a plea proceeding. See Frye at 10. Such measures should help to stave off later complaints of ineffective assistance.

Robert Plotkin, a member of this newsletter's Board of Editors, is a partner, and Kurt Wolfe is an associate, at McGuireWoods LLP. Mr. Plotkin is head of the firm's SEC Enforcement Defense Group. Both are members of the firm's Government, Regulatory, and Criminal Investigations practice group.

The U.S. Supreme Court recently held that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during the negotiation and consideration of plea offers. In companion cases Missouri v. Frye , 132 S. Ct. 1399; 182 L. Ed. 2d 379; 2012 U.S. LEXIS 2321, and Lafler v. Cooper , 132 S. Ct. 1376; 182 L. Ed. 2d 398; 2012 U.S. LEXIS 2322, both 5-4 decisions, Justice Anthony Kennedy examined defense counsel's role in the plea bargaining process, focusing on what is required of counsel in advising clients of proposed plea bargains, and in what circumstances counsel's advice constitutes ineffective assistance. These rulings are likely to impact complex business crimes matters, where plea negotiations often play a pivotal role in the prosecution.

The Decisions

In Missouri v. Frye, defense counsel failed to advise his client of two plea offers, both of which would have resulted in a shorter prison term than that the defendant received after later pleading guilty. The Court found that counsel's failure to so advise his client violated the Sixth Amendment, and held that “as 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.” Frye at 9.

In Lafler v. Cooper, defense counsel convinced his client, who was otherwise agreeable to a plea agreement, to reject three plea offers. After conviction, the defendant was sentenced to a longer prison term than those previously offered. The Court found that counsel's advice implicated the defendant's Sixth Amendment rights, holding: “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler at 9.

Justice Antonin Scalia penned passionate dissents in both Frye and Lafler, insisting that the Court's decisions incorrectly “opened a whole new field of constitutionalized criminal procedure: plea-bargaining law.” Lafler, Scalia dissent at 1.
Justice Scalia does not believe the right to effective assistance of counsel is implicated “unless counsel's mistakes call into question the basic justice of a defendant's conviction or sentence.” Id. at 4. Errors during plea bargaining may be cured during a plea colloquy or at trial. Meanwhile, the Court's decision will require courts to engage in “a process of retrospective crystal-ball gazing posing as legal analysis” to determine what the defendant, prosecution, and court would have done if a defendant had been adequately advised. Frye, Scalia dissent at 3.

Together, Frye and Lafler stand for three propositions in a plea bargaining context: 1) The Sixth Amendment right to effective assistance of counsel extends to plea bargaining; 2) A defendant must show prejudice that caused him to miss a favorable plea offer; and 3) Remedies are available to a defendant who makes the requisite showing.

Extending the Sixth Amendment Right to Counsel to Plea Bargaining

In extending the right to the effective assistance of counsel to plea bargaining, the Court acknowledged that the Sixth Amendment applies to all “critical stages” of criminal proceedings, including certain pre-trial procedures, such as the entry of a guilty plea. See, e.g., Montejo v. Louisiana , 556 U.S. 778, 786 (2009). The negotiation and consideration of plea offers, the Court reasoned, is unequivocally a “critical stage.”

The Court noted the pervasiveness of guilty pleas, explaining 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 ' .” Frye at 7; see Lafler at 11. Refusing to extend the Sixth Amendment protections to plea negotiations, therefore, “might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.'” Frye at 8, quoting Massiah v. United States , 377 U.S. 201, 204 (1964).

Demonstrating Ineffective Assistance in Plea Bargaining Context

When a defendant claims that “ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer,” the courts must apply the two-part test set out in Strickland v. Washington , 466 U.S. 668 (1984), to determine whether the alleged deficiency resulted in the denial of the defendant's Sixth Amendment rights. Frye at 12. Ineffective assistance claims have two components:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687 (1984). A defendant must make both showings to establish that an unfavorable result arose from the ineffective assistance of counsel. Id.

Neither Frye nor Lafler squarely addresses the first Strickland prong or otherwise specifies what constitutes “deficient” assistance. In Frye, the Court expressly declined to “define the duty and responsibilities of defense counsel in the plea bargaining process.” Frye at 8-9. Meanwhile, in Lafler, the Court posited only that ineffective assistance must fall “below an objective standard of reasonableness.” Lafler at 4.

Establishing Prejudice

In both decisions, the Court carefully considered what is required to show that prejudice resulted from counsel's deficient assistance. According to Frye, defendants “must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Frye at 11. Defendants must also show “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it ' .” Id. In sum,”it is necessary to show 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.” Id.

Importantly, the Lafler Court rejected the notion that Strickland prejudice cannot exist where the defendant “is later convicted at a fair trial.” Lafler at 5. The Court explained that it “has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself ' . 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.” Lafler at 7. Defendants have the right to effective assistance of counsel in considering whether to accept a plea offer. “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.” Id. at 9.

The Court also rejected the notion that the defendant's guilt obviates the need for effective assistance during plea bargaining: “The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney's deficient performance during plea bargaining.” Lafler at 11.

Fashioning a Remedy

The Lafler Court identified the appropriate remedy where a defendant demonstrates that ineffective assistance during the plea bargaining stage resulted in some prejudice. Lafler at 12.

Where a defendant pleads guilty to, or is found guilty of, the same charges he would have admitted in a prior plea offer, but receives a harsher sentence, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Lafler at 12. Similarly, where the defendant pleads guilty to, or is found guilty of, different or more severe charges than he would have admitted in a prior plea, “the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Lafler at 12-13.

The Lafler Court cautioned that “[i]n implementing a remedy in both of these situations, the trial court must weigh various factors,” including, but not limited to, “a defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions” and “information concerning the crime that was discovered after the plea offer was made.” But fashioning a remedy is largely discretionary with the trial court.

Implications of Frye and Lafler

The potential implications of Frye and Lafler have been the subject of much debate. Justice Scalia, dissenting in Lafler, argues that the newly created procedural right to the effective assistance of counsel during plea bargaining undermines the courts' ability to cure potential inadequacies through the defendant's admission of guilt during the colloquy, or through “a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward.” Id. As discussed above, Justice Kennedy rebuffed Justice Scalia's argument, reasoning that the “guarantee of a fair trial” is an insufficient “backstop” to cure errors that occur in the pretrial process. Lafler at 11.

According to the petitioners in Lafler, the Court has “open[ed] the floodgates to litigation by defendants seeking to unsettle their convictions.” Lafler at 13. Rejecting this argument, the Court reasoned that “[c]ourts have recognized claims of this sort for over 20 years, and yet there has been no indication that the system is overwhelmed by these types of suits or that defendants are receiving windfalls as a result of strategically times Strickland claims” Id.

Some defense counsel interpret Frye and Lafler as requiring counsel to persuade defendants to accept plea offers. This does not, however, appear to be the Court's thinking: The only affirmative burden placed on defense counsel is that he or she must advise the defendant of a formal offer. Even in Lafler, where defense counsel persuaded the defendant to reject a plea offer in order to pursue a virtually unsustainable defense theory at trial, the Court accepted that defense counsel's representation was deficient only because the parties so stipulated.

Conclusion

In white-collar cases, the Frye and Lafler requirements create new complications for practitioners evaluating the advisability of a plea. To protect the process and avoid unintended consequences, it will be prudent to document the negotiations process, exchange formal offers in writing, and consider making a formal offer part of the record during a plea proceeding. See Frye at 10. Such measures should help to stave off later complaints of ineffective assistance.

Robert Plotkin, a member of this newsletter's Board of Editors, is a partner, and Kurt Wolfe is an associate, at McGuireWoods LLP. Mr. Plotkin is head of the firm's SEC Enforcement Defense Group. Both are members of the firm's Government, Regulatory, and Criminal Investigations practice group.