The Connecticut Law Tribune’s Editorial Board on May 14, 2012, in an editorial that is surprisingly disingenuous, criticized the Office of the Chief State’s Attorney for filing an amicus brief in the U.S.Supreme Court in the cases of Missouri v. Frye and Lafler v. Cooper. In the amicus brief, which was joined by 28 other states, the office argued, as did the U.S. Department of Justice and the National District Attorneys Association, that a defendant who is convicted after either a fair trial or a knowing and voluntary guilty plea is not entitled under the U.S. Constitution to have his conviction vacated on the ground that his attorney either failed to inform him of, or advise him to accept, a plea offer that was more favorable than the sentence ultimately imposed.
The Editorial Board’s criticism misperceives, or deliberately misstates, the overall import of the Frye and Lafler decisions, the role of attorneys in our adversary system, and the responsibility that this office has to the people of the State of Connecticut.
First, the board implies that we wasted state taxpayers’ resources by filing an amicus brief in "a Missouri prosecution being litigated in Washington, D.C." The board certainly knows that when the U.S. Supreme Court decides a case from any jurisdiction based on its interpretation of the U.S. Constitution, that holding binds every state. Frye and Lafler now establish Sixth Amendment protections and a range of remedies for every criminal defendant in the country, in Connecticut just as in Missouri and Michigan. The Connecticut Criminal Defense Lawyers Association recognized this also and filed a well-reasoned amicus brief making opposing arguments.
Second, while the Editorial Board may prefer that the chief state’s attorney accept without question every theory that expands constitutional protections, I see our responsibility to the people of the state somewhat differently and, I expect, so do they. We are obliged to protect the interests of Connecticut’s citizens and the integrity of their criminal justice system when a defendant challenges a conviction on grounds that we do not believe are supported by the Constitution. That the U.S. Justice Department and 28 other states joined us demonstrates that this was just such a case.
Our argument was straightforward and well-founded: the purpose of the Sixth Amendment is to guarantee the right to a fair trial; it does not guarantee the right to a plea to a lesser offense or to a reduced sentence, and therefore it does not provide a basis for relief if the defendant has received a trial that was fair and reliable. Although the majority ultimately disagreed, holding that the Sixth Amendment does permit a convictee to challenge his attorney’s failure to convince him to accept a plea offer, four justices agreed with our position.
Writing for the minority, Justice Antonin Scalia concluded, as we had argued: "Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. So little entitlement that, had he known of and accepted the bargain, the prosecution would have been able to withdraw it right up to the point that his guilty plea pursuant to the bargain was accepted."
Finally, the advocacy that produced the Frye and Lafler opinions resulted in the Supreme Court defining both the standard by which a petitioner must prove a Sixth Amendment claim and the range of potential remedies that may be conferred. Both standards differ from those that Connecticut courts previously established under their interpretation of the Sixth Amendment in the plea bargaining context. The Supreme Court held that if constitutional "injury" is established it should be up to the discretion of the trial court to balance the interests of both the state and the defendant in determining whether to vacate the conviction, resentence the defendant or leave the conviction and sentence undisturbed and discussed considerations relevant to that determination.
For this reason, it would be irresponsible for this office to follow the Editorial Board’s advice that we withdraw the state’s appeal presently pending in the Connecticut Supreme Court. This appeal will provide our court with the opportunity not to ignore the opinions in Frye and Lafler, as the editorial board recommends, but to consider them in applying their standards and determining appropriate remedies. The Frye and Lafler holdings will guide Connecticut courts in the proper application of sixth amendment claims.
Our participation in Frye and Lafler fulfilled our obligation to advocate on the part of Connecticut’s citizens by advancing well-supported positions. It also honored a central premise of our justice system: our jurisprudence benefits when closely-contested legal issues are fully and honorably litigated. While the Editorial Board may be "disappoint[ed]" and "disturb[ed]" by good-faith advocacy that sharpens the issues before the Supreme Court and helps it to define the scope of constitutional protections and remedies, it should not expect this office to abandon its responsibility to do so.
Kevin T. Kane is Connecticut’s Chief State’s Attorney. He is the administrative head of the Division of Criminal Justice, the independent agency of the executive branch of state government that is responsible for the investigation and prosecution of all criminal matters in Connecticut.