Academic journal article Harvard Law Review

Sixth Amendment - Ineffective Assistance of Counsel - Tenth Circuit Holds That a Defendant Is Prejudiced When His Lawyer's Deficient Performance Leads Him to Forego a Plea Bargain and Face a Fair Trial

Academic journal article Harvard Law Review

Sixth Amendment - Ineffective Assistance of Counsel - Tenth Circuit Holds That a Defendant Is Prejudiced When His Lawyer's Deficient Performance Leads Him to Forego a Plea Bargain and Face a Fair Trial

Article excerpt

At the heart of America's conception of its criminal justice system sits the right to a fair trial. Part of this right is a right to effective assistance of counsel. (1) But the overwhelming majority of defendants never see trial; guilty pleas structure their experience of criminal adjudication. (2) In Hill v. Lockhart, (3) the Supreme Court clarified that effective assistance protects these defendants' trial rights too: if a reasonable probability exists that a defendant who pled guilty would have insisted on trial but for his lawyer's deficient performance, he is entitled to reversal. (4) Recently, in Williams v. Jones, (5) the Tenth Circuit addressed the opposite situation. It asked whether a defendant suffers prejudice when a lawyer's deficient performance leads him to face a fair trial rather than accept a plea bargain with a shorter sentence. (6) In finding prejudice, (7) the Tenth Circuit reached the right result, but its cursory analysis failed to explain sufficiently which interests effective assistance protects in plea bargaining, leaving unrebutted the dissent's powerful argument that fair trials, as the "gold standard" of adjudication, vitiate concerns about fairness and reliability during plea bargaining. (8) The best explanation for Williams requires recognizing the right Williams lost through his attorney's deficient performance: the right to make autonomous choices. Given the longer sentences that modern criminal adjudication imposes on defendants who choose trial and lose, effective assistance is necessary to ensure that this choice, like the choice to accept a plea bargain, is voluntary and intelligent.

In 1997, a gunman killed Larry Durrett in his home. (9) Michael Williams, charged with the crime, wanted to accept the prosecution's offer of a ten-year sentence in return for a guilty plea to second-degree murder. (10) His attorney, apparently crediting his earlier denials, threatened to withdraw if he took it. (11) Williams was convicted of first-degree murder and sentenced to life without parole. (12) On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) held that both deficient performance and prejudice--the two elements required to show ineffective assistance under Strickland v. Washington (13)--were present. (14) It modified his sentence to life with the possibility of parole, the state's lowest punishment for first-degree murder, because it found that state law permitted no greater remedy. (15) The federal district court denied habeas relief. (16) The Tenth Circuit granted a certificate of appealability limited to the remedy's adequacy. (17)

The circuit court reversed and remanded. (18) In a per curiam opinion joined by Judges Kelly and McConnell, (19) the court focused on the underlying substantive issue--how Strickland's prejudice prong applies to rejected pleas--rather than on the remedy per se, reasoning that the remedy's adequacy depended on the underlying right. (20) The court found that Williams's lawyer performed deficiently by advising Williams that he would perjure himself by accepting the plea, and by threatening to withdraw. (21) The court then identified prejudice in the fact that "had [Williams] been adequately counseled, there is a reasonable probability that he would have accepted the plea offer and limited his exposure to ten years." (22) The court rejected two contrary arguments. First, it held that a later fair trial does not "vitiate the prejudice from the constitutional violation," (23) relying principally on federal courts' consensus on the point and treating it as an unremarkable application of Hill's standard for accepted plea bargains. (24) Second, the court rejected the suggestion that Williams could not show prejudice because the state could have withdrawn the offer and Williams thus lacked a legal entitlement. The court reasoned that Williams had a right to accept the offer as long as it was open and that he "was entitled to the effective assistance of counsel during plea negotiations, including the decision whether to accept or reject the plea offer. …

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