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The U.S. Supreme Court resumed its inquiry into the plea bargaining process on Monday, hearing arguments in two cases that spotlighted the importance of competent lawyering at the plea agreement stage. In appeals from Michigan and Missouri, the Court examined whether one lawyer’s flawed advice to reject a prosecutor’s plea offer, and another lawyer’s failure altogether to inform his client about a proposed plea deal, amounted to ineffective assistance of counsel that violated the Sixth Amendment. Justices voiced concern about the plea bargaining process, with several noting that as the number of criminal trials declines, 95 percent or more of all criminal convictions result from guilty pleas. “Enormous unfairness and prejudice” can result, said Justice Stephen Breyer, if a lawyer’s mistaken advice to reject a plea offer of two years in jail leads to a guilty verdict at trial with a 50-year sentence. But the Court seemed stymied about how to remedy the problem of incompetent legal advice once a plea bargain has been refused or ignored and the defendant is found guilty at trial. Justice Samuel Alito Jr. asked whether there was “a way to unscramble the eggs” at that point in the process. No matter what the outcome of the cases Lafler v. Cooper and Missouri v. Frye, they represent the latest phase of a new project of the Court to study the plea bargain process, after more than two decades of mostly silence on the subject. Now-retired Justice John Paul Stevens launched the effort in March 2010 in Padilla v. Kentucky, which ruled that a lawyer’s failure to advise an alien client about the risk of deportation flowing from a guilty plea was constitutionally deficient. In January this year, the Court in Premo v. Moore declined to second-guess a defense lawyer’s strategy that led his client to accept a plea deal. “The bigger picture here is that the Supreme Court is finally looking at the plea process,” said Margaret Love, a Washington practitioner who participated in an American Bar Association brief filed in the cases argued today. “For years, ineffective assistance case law has focused on trial practice.” The ABA brief asserts that the dominance of plea agreements in the criminal justice system “makes it all the more important that defendants considering a guilty plea should have competent cunsel.” In the Michigan case, the lawyer for defendant Anthony Cooper — who was accused of assault with the intent to murder — advised Cooper not to accept a plea that would have resulted in up to 85 months in prison. The advice was based on a mistaken interpretation of what was needed to prove intent. Cooper was ultimately found guilty at trial and given a sentence more than four times more severe. But state solicitor general John Bursch argued forcefully that the handling of Cooper’s case cast no doubt on “the reliability of the proceedings where a defendant is adjudicated guilty and sentenced.” There was no Sixth Amendment violation, he added, because “a defendant must show deprivation of a substantive or procedural right, and the Court has already held that a defendant has no right to a plea bargain.” Assistant public defender Valerie Newman, arguing for Cooper, said the remedy she seeks would reinstate the original plea offer, in spite of the subsequent trial. Several justices balked at the idea, worrying that trial verdicts would be undone and plea bargains would be dissected in a wave of new appeals. They also said that prosecutors and judges always have the right to reject a plea deal even after the defendant accepts it – so that turning back the clock to when the plea offer was made might not solve the defendant’s problem. But Newman pointed that most circuit courts that have ruled on the subject have adopted the approach of reinstating an earlier plea, without creating an avalanche of appeals. “The flood gates have not opened,” Justice Elena Kagan agreed. Missouri Attorney General Chris Koster argued in the Frye case that the plea bargain process is not a “critical stage” in the constitutional sense, so that what happened to defendant Galin Frye was not a Sixth Amendment violation. Charged with driving with a revoked license, Frye never heard from his lawyer about a plea deal offered by the prosecutor. Charged with the same offense again, Frye pled guilty and was sentenced to three years in prison. He later claimed ineffective assistance of counsel and asked for the original plea offer. “The search for a better deal,” said Koster, “is not the Sixth Amendment violation that should begin unwinding 97 percent of the convictions in the country.” Arguing for Frye, Assistant public defender Emmett Queener said the ineffective assistance of counsel Frye received had to be remedied by an order that would “put the defendant back into the position of as nearly as possible as he would have been” when the plea offer was first made. Tony Mauro can be contacted at [email protected]

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