IAC during plea bargaining
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In an exciting move, SCOTUS today granted cert. in a capital habeas case [petition here, opposition here] to decide whether someone can receive ineffective assistance during the plea bargaining process. The actual facts are slightly more complicated, but as Scotusblog notes, the basic question (which was added later by the Court) is what is:
the remedy that [is] available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial.
Most of the commentary and discussion in the blawgosphere has centered around whether ineffective assistance during the plea bargaining process is a valid IAC claim, where the defendant then goes on to receive a fair trial. The answers that I have seen thus far have been no. I will respectfully disagree. The answer should be: “yes”.
For example Crime and Consequences says:
The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.
There are several problematic things about that paragraph, but today I’ll deal with just the last. Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.
plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.
Blackledge v. Allison, 431 U.S. 63
Then we come to Hill v. Lockhart. In Hill the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”, relying on McCann v. Richardson, 397 U.S. 759, 771 (1970) (all defendants facing felony charges are entitled to the effective assistance of competent counsel). Really, there cannot be another conclusion.
In this case, the attorney misadvised the defendant about taking an offer. Consider a situation where the attorney fails to inform the defendant of an offer that he would have taken. Regardless of whether the ensuing trial was fair or not, the defendant was not informed of the availability of a plea bargain. How can he be said to have provided effective assistance if he failed to inform the defendant of a favorable resolution of the criminal prosecution? How can you say that the trial would have occurred in the first place?
So what then, is the remedy, if it is found that the attorney was ineffective? It has got to be specific performance. But for the ineffective assistance of counsel, the defendant would have taken the offer. He must be put back in the position he was in when the offer was made and given the option to either take the offer or reject it and proceed to trial.
“Poor lawyering” in the pre-trial process cannot be negated by an otherwise fair trial. Maybe I’m just spoiled by CT law. See Copas v. Commissioner of Correction, 234 Conn. 139.
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Cronic seems to solve this issue:
“In our evaluation of that conclusion, we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.”
Well, he got a fair trial . . . .
[quote comment="7768"]Cronic seems to solve this issue:
“In our evaluation of that conclusion, we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.”
Well, he got a fair trial . . . .[/quote]
So, at the most, we have conflicting opinions. I doubt Cronic overrules Blackledge or Strickland.
This is the crimlaw cert grant of the year. Talk about trial penalties.
Gideon, what specific language does Strickland have that undermines the quote from Cronic?
Here’s another quote from Cronic:
“Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”
[quote comment="7820"]Here’s another quote from Cronic:
“Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”[/quote]
That quote does not talk about the finding of guilt after trial. A finding of guilt can also be via a plea of guilty.
I’ve updated my post to reflect more. There’s a history of jurisprudence holding that the plea bargaining process is a critical stage and that a defendant is entitled to effective assistance during all stages of a criminal proceeding, not just a trial.
remember, in this case, the finding of guilt was reliable, as it was the result of a fair trial . . . .
That makes it inapposite to a case where the lawyer told the criminal to take a plea.
Thus, I think it difficult to get around the quotes in Cronic.
[quote comment="7824"]remember, in this case, the finding of guilt was reliable, as it was the result of a fair trial . . . .
That makes it inapposite to a case where the lawyer told the criminal to take a plea.
Thus, I think it difficult to get around the quotes in Cronic.[/quote]
However, there is a question as to whether there should have been a trial in the first place. I don’t think the 6th Amendment jurisprudence restricts effective assistance only during a trial. I understand your quoting Cronic, but why don’t you think a defendant would be entitled to effective representation during the pre-trial stages?
Because I think you’re misreading the precedent. The right is not to effective assistance of counsel in the abstract. The right is to have your conviction overturned if IAC caused the defendant harm, i.e., resulted in a result that was not reliable. Here, we have a result that IS reliable. Ergo, no claim.
You can criticize this as overly formalistic, but the bottom line is that to rule for the defendant in Hoffman would be a significant expansion. The right to effective assistance is to make sure that defendants get fair trials (and when I say trials, i mean all of the pretrial crap going along with it, e.g., suppression, alibi etc.) or plead guilty with their eyes open. When a defendant fails to accept a plea and then claims IAC (to say nothing of his “having his cake and eating it too”–i.e., he got to roll the dice at trial, and he got a good deal) and gets a fair trial, then he has gotten what was promised him by the constitution, i.e., a reliable determination of guilt, which is all the Constitution promises. Remember, you have to prove more than simply ineffective rep–you have to prove harm, and the harm has to go to the reliability of the judgment. Here, there’s none of that.
I seem to recall earlier that you were quite sure of yourself. I sense some slippage.
[quote comment="7835"]Because I think you’re misreading the precedent. The right is not to effective assistance of counsel in the abstract. The right is to have your conviction overturned if IAC caused the defendant harm, i.e., resulted in a result that was not reliable. Here, we have a result that IS reliable. Ergo, no claim.
You can criticize this as overly formalistic, but the bottom line is that to rule for the defendant in Hoffman would be a significant expansion. The right to effective assistance is to make sure that defendants get fair trials (and when I say trials, i mean all of the pretrial crap going along with it, e.g., suppression, alibi etc.) or plead guilty with their eyes open. When a defendant fails to accept a plea and then claims IAC (to say nothing of his “having his cake and eating it too”–i.e., he got to roll the dice at trial, and he got a good deal) and gets a fair trial, then he has gotten what was promised him by the constitution, i.e., a reliable determination of guilt, which is all the Constitution promises. Remember, you have to prove more than simply ineffective rep–you have to prove harm, and the harm has to go to the reliability of the judgment. Here, there’s none of that.
I seem to recall earlier that you were quite sure of yourself. I sense some slippage.[/quote]
I’ll address the rest later, but there is no slippage. I am pretty sure that there is (or has to be) right to effective assistance of counsel at all stages and that includes pre-trial/plea bargaining.
But there’s the harm analysis . . . . and it’s not so easy as saying “but for . . . .”–the harm has to affect the reliability of the judgment. And here it does not.
Overcoming Cronic is a bit more difficult than anticipated, huh?
First, the 6A right to counsel is not merely an assurance of a fair trial. Effective representation is a right for all “critical stages” of the prosecution, which would include plea bargains. See Kirby v. IL. Even a textualist should be able to see that the 6A guarantees counsel “in all criminal prosecutions” and is not limited to merely the trial setting. See US Const. amend. VI.
Second, the question presented in the cert petition posits that it can be shown “but for” the ineffectiveness, the defendant would have plead. If such a fact is established, there is little worry about in regards to the “two bite” argument.
See my case details at http://www.exposedinjustice.com A case where the states Attorney and Judge knew that a public defender was under investigation for sexual misconduct but still allowed him to stand for accused in court.