Pride is a troublesome thing. It makes us lie, it makes us obfuscate and it makes us, ultimately, injure others. Lawyers’ pride is even worse, if that’s possible. We often forget that that our only goal should be to help the client, in whatever way possible, within the ethical boundaries of our profession. Yet the best of trial lawyers often become the worst witnesses in post-conviction proceedings, where the love of the client and the law and the desire to set wrongs right turn into sharply focused self-preservation.
The most irksome and often repeated testimony during post-conviction proceedings starts “I don’t recall the specifics of this case, but my general practice is…” followed by a lengthy statement of how the lawyer never does what it is alleged that he did.
And most post-conviction proceedings are nothing more than credibility battles between the trial attorney and the defendant. We all know who loses in that scenario. No longer protected by the cloak of innocence, every allegation made by a sentenced prisoner – a convict, a felon – is viewed with the most extreme skepticism and that distrust of his claims is further deepened when a seasoned trial attorney takes the stand with only goal in mind: saving his own pride hide.
Which is why it is heartwarming (in addition to being a great learning experience) to read opinions like this recent one from the 6th Circuit, where the court finds ineffective assistance of counsel for affirmative misadvice given to the client during the plea negotiation process:
First, petitioner’s attorney provided deficient performance. Counsel advised petitioner that he could not be convicted of assault with intent to commit murder because the bullets entered the victim’s body below the waist. “The elements of assault with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v. Brown, 267 Mich. App. 141, 147, 703 N.W.2d 230, 236 (2005) (quotations and footnote omitted). Thus, “in order to find a defendant guilty of this crime, it is necessary to find that there was an actual intent to kill.” People v. Taylor, 422 Mich. 554, 567, 375 N.W.2d 1, 7 (1985) (citations omitted). Petitioner’s counsel advised him that because the victim was injured below the waist, the prosecution could not establish the element of intent. Counsel was wrong. The nature of the victim’s wounds are not a dispositive consideration in determining whether the accused possessed an intent to kill.
The court recounts this advice from counsel to the petitioner as if it were accepted. The Michigan Court of Appeals decision does not describe the testimony presented, but whether it was by way of an affidavit signed by trial counsel or live testimony from him, it is clear that no court would simply have accepted petitioner’s word that this is what his lawyer advised him. The 6th circuit goes on to find that this was deficient performance and then, relying on Padilla v. Kentucky, finds that this did indeed prejudice the petitioner because it caused him to reject a great offer from the State:
The Strickland framework for evaluating counsel ineffectiveness applies to advice regarding whether to plead guilty. Padilla v. Kentucky, — S. Ct. —-, 2010 WL 1222274 (2010); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The deficiency portion of the test remains unchanged. Instead of focusing on the fairness of the trial, the prejudice component “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59. If petitioner pleaded guilty, then petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. If petitioner chooses to reject a plea offer, on the other hand, he must show a “reasonable probability that, but for his counsel’s erroneous advice . . . he would have accepted the state’s plea offer.” Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001).
Clearly, a defendant who is erroneously advised by his lawyer that he should reject the offer because the State cannot prove the elements of the crime against him is prejudiced when in fact they can and do. The petitioner’s conviction is vacated and the matter remanded to the trial court with directions that he be given the opportunity to accept the offer anew – basic contract principles and Santobello v. New York reasoning.
But the lesson here is that this Constitutional violation would not have been remedied were it not for trial counsel stepping up to the plate and admitting his mistake (yes, technically I’m assuming this occurred, but realistically I see no other way for it to have happened). In the end, that should always be our goal: to assist our clients in any way possible and to remedy any constitutional violation that occurs due to our mishandling of a case.
After all, we don’t spend the decades in prison. Our clients do. They deserve our honesty.
This is very true. I haven’t been in the situation (and hopefully never well be), but I’d like to think I’d do the right thing and admit my mistakes to benefit the client. I’m idealistic, clearly.
Instructive? This case is so wrong, it’s pathetic. First of all, it’s on habeas corpus, which means, guess what–the State court decision has to be an unreasonable application of Supreme Court precedent. On this particular issue, i.e., whether a criminal who gets a fair trial can get his conviction reversed because but for his attorney’s ineffectiveness he would have pled guilty, the courts are split. Thus, under Carey v. Musladin, there can be no conclusion that the state court acted unreasonably.
Second, take a look at Cronic. Here’s the footnote: “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.” Since the guy got a fair trial, how can it possibly be said that any errors of counsel “undermined the reliability of the finding of guilt?” And even more to the point, how can the conclusion, which is backed up by a Supreme Court case that absent a showing that the trial was unfair, there can be no IAC claim in this case possibly be unreasonable?
The short answer, of course, is that it cannot. Cronic supports the view of the Michigan courts. Thus, they did not act unreasonably, and thus no relief can be granted under AEDPA. It is surpassing strange for people like you who whine about things like “the rule of law” etc. countenance it being tossed aside for the benefit of some criminal.
Are the courts actually split on this issue? I don’t have time to research this in any detail, but I have a hard time imagining the reasoning that would lead a circuit to adopt a position contrary to the above excerpt from the 6th’s position in Magana v. Hofbauer.
I’m not disagreeing with your statement that the courts are split, btw–just genuinely wondering if you know that there’s a circuit split or whether it’s possible that the 6th has a case on this, SCOTUS is silent, and no circuit has yet come out the other way.
As a criminal attorney, my job is to do the best I can in representing my client the best way I know how, now if I make a mistake that costs my client, then yes, it is my duty to own up to my mistake. I might be one of the few, but in a perfect world, this is how it should be…we all know, nothing is perfect.
This is complex. I’ve been called to testify in habeas about my work and I have — after going through my entire file, re-reading the transcript, pleadings, correspondence with the client, notes, etc. And I’ve said at times that I did X for Y reason (and can point to the notes to support that) instead of doing Z, but in hindsight, perhaps I should have done Z instead.
A big problem here is preparation. I see habeas hearing transcripts where trial counsel is utterly unprepared — hasn’t read the transcript, hasn’t read the appellate opinion (if any), and is relying on years-old memories about the case. As State v. Outing reminds us us, memory is not a DVD — our brains subconsciously edit our memories in a number of ways — to take into account after acquired information and often to portray ourselves as more insightful, more important, etc., than we actually were. It isn’t lying — its the way memory works.
I had a case a couple of years back where trial counsel testified about his strong memory of the turning point in the case (which wasn’t the problem at issue in the habeas). Problem was — looking at the transcript — it didn’t happen that way. The attorney honestly mis-remembered a key point in his case, calling into question the accuracy of his memory on every other aspect of the case.
Moral of the story — prepare for habeas!
I don’t know about the circuits going my way–I know the Sixth, Third, Fourth, Ninth and Tenth have gone the other way–I think the Seventh may have gone my way. I know for a fact that a number of state courts (Utah, Missouri and Louisiana) have gone my way, and that’s enough.
But even if the courts were uniformly going your way–the language in Cronic makes my conclusion not unreasonable.
All of the Circuit Courts of Appeals and 32 States apply Strickland analysis to IAC in plea bargaining where misadvice causes rejection of favorable offer. 14 States have not addressed the issue. Louisiana rejects motion for new trial where mis-information provided by a prosecutor. Missouri courts have split on the issue but not resolved the split. Utah is the only state squarely rejecting remedy for ineffective assistance of counsel in plea bargaining. 10th CCA rejects Utah reasoning, cert. denied (twice). More like a sliver than a split.
Of course, Jane, that doesn’t really address the issue, now does it? You don’t deal with the AEDPA issue. You don’t deal with the Seventh Circuit case, nor do you deal with the obvious problem in Cronic, namely the footnote I quote.
Typical obfuscation.
If the right to effective counsel is there to ensure a fair trial, how is there a problem if the defendant gets one?
SPO, Perhpas we should simply disagree that the purpose of counsel is merely to ensure a fair trial since that seems like the basic difference between us. From my perspective,
plea bargaining is usually the most critical stage of a criminal case.
We can certainly disagree, and perhaps your view will become the law, but as things stand now, I have Cronic on my side, and that footnote is simply impossible to square with your position. As for whether plea bargains are a “critical stage”, that’s not really the point, is it? The point is whether an ineffective rep resulting in a rejection of a plea deal can get the results of a fair trial overturned. If the right to effective counsel is there not for its own sake, but to ensure that the accused gets a fair trial (and that’s what the caselaw says, by the way), if the accused gets a fair trial, where’s the complaint?
Funny how I, a transactional lawyer, seem to be able to articulate the law a lot better than the PDs around here.
And, I’m not even getting into the policy argument here. The defendant gets to have his case (i.e., a trial) and eat it too (the plea deal).
Though your conclusion, as you stated earlier, is not unreasonable, what you claim is the law is hardly settled. The issue of whether a defendant has suffered from IAC during plea negotiations is something that courts still struggle with today. In fact, the two highest courts thus far that have ruled that a defendant is entitled to no remedy where he rejected a plea bargain on erroneous advice and subsequently was convicted in a fair trial are the Utah and New Jersey Supreme Courts.
Hill v. Lockhard, 474 U.S. 52 (1985), was decided a year after Cronic and also addressed the issue of effective assistance during pre-trial negotiations, directly applying the Strickland test to them. Since then, a number of state and federal courts have applied the test to plea negotiations, including cases where a defendant was mistakenly advised to plead innocent and go to trial. So yes, it is relevant, on some level, that plea bargains are a critical stage–courts have struggled with the questions of IAC during plea negotiations.
There’s actually a pretty interesting law review article I found while researching this question a little. Though I’m not sure if I agree with its ultimate conclusion (a retrial is the best means of remedying the situation), it’s a good read on this question.
Clearly, where the defendant pleads guilty, IAC claims should attach to pre-trial negotiations–because the guilty plea is being substituted for a trial. Where the defendant pleads not guilty, the case proceeds to trial, and if that trial’s fair, then ipso facto, the defendant has received all that’s required by the Constitution–remember, the right to effective assistance of counsel is there to guarantee a fair trial, nothing more (unlike choice of counsel, although that was a much closer case than it should have been, Scalia was principled—and right, in that case). And that’s why the language in Cronic, which ties the right to effective assistance of counsel to whether the finding of guilt is reliable, nails it. That’s the present state of Supreme Court law, and I don’t think that is really all that debatable, whether or not a bunch of lower courts just aren’t thinking about the issue in the correct manner. Perhaps, SCOTUS will extend Strickland to this situation, but make no mistake, it will be an extension. Notwithstanding what a bunch of lower courts have said, logic is on my side.
And given that you concede that my argument is “reasonable”, where is your disdain for the habeas courts that have tossed these convictions in violation of AEDPA? Some serious lawlessness going on. And I don’t think there is any good argument that a federal habeas court tossing a conviction on this basis is acting contrary to law.
The idea that a federal habeas court can undo the result of a fair trial and order the prosecution to reoffer a plea deal is stunning, to say nothing of the “have cake, eat it too” problem.
A friend of mind signed an affidavit stating that he was unaware of an appeal’s rule that would have helped his client. The client’s counsel used this as the basis for a successful appeal of ineffective assistance of counsel. The other lawyer working on the case wouldn’t admit to anything. So, I’m glad that their are lawyers out there that step up to the plate and I’m glad to know one!
After Padilla I just don’t see how IAC couldn’t reach clearly erroneous advice at the plea stage. First is the logical problem that one could commit malpractice and by that very act also render herself at least nominally effective by going to trial. Second, the right to counsel has been extended far beyond just the trial setting. It makes no sense to state that the right to counsel in those settings doesn’t contain the same effectiveness requirement. Further, if the right to effective counsel has been extended to scenarios involving collateral consequences, why in the world wouldn’t it apply to primary ones?
Padilla involves guilty pleas, not the rejection of an offered plea deal and a fair trial thereafter.
“First is the logical problem that one could commit malpractice and by that very act also render herself at least nominally effective by going to trial.”
No logical problem at all, when you remember that the right to effective assistance of counsel is not there for its own sake, but there to guarantee a fair trial. And that’s the point you simply seem unable to grasp. The issue is not when the right to effective assistance attaches, but what it’s designed to protect. If the criminal gets a fair trial, he has gotten all that the Constitution requires. The quote from Cronic is still good law, and it forecloses your position. I know that is true because none of you supposedly super sharp defense lawyers can address the point.
Dear smug transactional lawyer, please see below.
“Before deciding to plead guilty, a defendant is entitled to effective assistance of competent counsel.” Padilla v. Kentucky at 1480-81 citing McMann v. Richardson (internal quotations omitted).
“On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel.” McMann at 771
“The entry of a guilty plea whether a misdemeanor or felony “ranks as a ‘critical stage’ at which the Sixth Amendment right to counsel adheres.” Iowa v. Tovar, 541 U.S. 77, 81 (2004).”
“The separate trials in this case, however, did absolutely nothing to reduce the potential for divergence of interests at the two critical stages that petitioner argues were adversely affected by the conflict of interest, that is, pretrial plea negotiations and post-trial appeal.” Burger v. Kemp at 803.
So you’re right, the Court has never explicitly held that the right to counsel extends to pretrial plea decisions. It has held that the entry of pleas is a critical stage at which the right to counsel attaches. It has also held that the counsel there must be effective. From a textual right, and this is kinda day one crim pro law school stuff, but the right to counsel and the right to a fair trial are distinct. Where the former attaches in all criminal prosecutions, the latter applies to just what it says, the trial.
Which is the roundabout way of saying that your premise is incorrect. The right to counsel extends, and has for quite awhile, to all “critical stages” of a criminal prosecution. It is a standalone right independent of the other fair trial/due process rights.
Greg, I can explain it to you, but I cannot understand it for you.
You can yap all you want about “day one crim pro law school stuff”, but the bottom line is that Cronic, a Supreme Court case says what it says. Once again, here’s the quote: “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.” Note the last phrase–”finding of guilt”. That, Greg, picks up guilty pleas. And why the guilty plea is covered by Strickland is pretty obvious. It’s a substitute for a trial, and the guy gets a criminal conviction out of it. Thus, it’s pretty incongruous to have a regime that says that a lawyer has to subject the prosecution’s case to meaningful adversarial testing if it goes to trial, but if the guy pleads guilty, well, the lawyer didn’t have to do squat.
But that has nothing to do with where the guy rejects a plea deal. He goes to trial, and, presumably anyway, gets a fair one. And here’s what Mickens v. Taylor has to say about it: “This right has been accorded, we have said, ‘not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.’ United States v. Cronic, 466 U. S. 648, 658 (1984).” It inexorably follows from that that if the guy gets a fair trial, he doesn’t get his conviction reversed on the basis that ineffective rep made him reject an offered plea deal. So your comment that the right to effective assistance is a “standalone right” isn’t accurate. Think of it this way–the guy has to be prejudiced, and there ain’t any when he gets a fair trial.
And this, of course, is to say nothing of (a) AEDPA and courts that blow it off and (b) the “have cake, eat it too” problem.
Looks like this smug transactional lawyer has whipped you, Greg. So much for day one crim pro stuff.
Any other PDs want to take me on?
No, I bet he’s just realized what I did a long time ago – that you have no interest in an honest debate. You, of course, are never wrong and others are never right.
The fact that you choose not to admit that you cannot have IAC at critical stages without then implicating the decision to plead guilty reeks of intellectual dishonesty not worthy of a 5 year old.
Yes, clinging to a position based upon a footnote after more relevant case law has been given is quite the whippin’. I guess I have nothing left to do but bow to your awesome intellectual ability and prostrate myself before you. I SUBMIT!!!! PLEASE DON’T HURT ME!!!
You are wrong, I am right. I’m sorry you need the ego boost but you’re not going to get it here.
The Mickens quote is not in a footnote. It says, in black and f’in white, that IAC is not there for its own sake, but for its impact on a fair trial. You simply cannot get around that one. And you don’t even try. It’s Supreme Court caselaw–not so easily dismissed.
As for Gideon, I don’t understand what your getting at–here’s a quote from above:
“The issue is not when the right to effective assistance attaches, but what it’s designed to protect.” I fully get when the right to effective assistance applies (hence my use of the word attaches, which, I believe, is in a lot of the case law). The problem is that you cannot seem to grasp the fact that the right to effective assistance is there so that there is a reliable determination of guilt and, to the effect lawyering can influence it, sentencing. In the case you cite, the defendant got a fair trial (presumably), so how can he complain of prejudice in the constitutional sense? The answer is that he cannot.
Forgive me if I seem stupid, but what exactly are these post-conviction proceedings of which you speak?
Are they some part of a discipinary hearing? Or are they a usual part of US court cases?
Thanks.
Generally, the post-conviction proceeding is a petition for Writ of Habeas Corpus, aka The Great Writ, which can be used to challenge the legality of a conviction.
SCOTUS just granted cert. on Lafler v. Cooper. This one’s coming back, and you guys might as well get ready to enjoy the tasty crow you’re going to eat.
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