Academic journal article The Yale Law Journal

Effective Plea Bargaining Counsel

Academic journal article The Yale Law Journal

Effective Plea Bargaining Counsel

Article excerpt

ESSAY CONTENTS  INTRODUCTION  I. REGULATING THE PLEA PROCESS IN PADILLA, FRYE, AND LAFLER     A. The Cases of Jose Padilla, Galin Frye, and Anthony Cooper    B. Jurisprudential Support for a Right to Effective Bargaining       Counsel    C. Prevailing Professional and Ethical Norms on Plea Bargaining  II. OBSTACLES AND PRACTICAL CONSIDERATIONS IN DEFINING     EFFECTIVE PLEA BARGAINING COUNSEL      A. Plea Bargaining as an Art Conducted Behind Closed Doors     B. The "Floodgates" Objection to Ineffective Assistance Norms  CONCLUSION 


Charged with a felony in Florida state court, Clarence Earl Gideon needed a lawyer but could not afford one. Although the trial judge sympathized, he believed state law barred him from granting Gideon's request for appointed counsel. (1) At his original trial in 1961, (2) "Gideon conducted his defense about as well as could be expected from a layman," yet the jury convicted and the judge sentenced him to five years in prison. (3) Pursuing his claim of a Sixth Amendment right to appointed counsel up to the Supreme Court, Gideon triumphed: on remand, he got his trial with a defense lawyer who played a critical role. (4) This time, the jury acquitted after deliberating for a little more than an hour. (5)

More than forty years later in different state courts, Galin Frye and Anthony Cooper did not want trials, but like Gideon, they needed effective representation. They wanted to plead guilty and to cut their losses by getting the most favorable sentences possible. Both men had lawyers who failed to serve them in this regard. Frye's attorney neglected to tell him about a favorable misdemeanor plea offer in his felony case, and Cooper's attorney talked him out of accepting a favorable plea offer by giving him bad advice about his chances at trial. (6)

Gideon needed representation at trial. The Gideon decision recognized how "[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law," and thus "requires the guiding hand of counsel at every step in the proceedings against him." (7) Frye and Cooper needed lawyers focused on a different task: counsel who functioned effectively in a plea bargaining system. In three recent decisions, the Court signaled a new era in the constitutional regulation of plea bargaining. (8) Padilla v. Kentucky established that defendants in criminal cases have a constitutional right to counsel's advice about the deportation consequences of a conviction. (9) In Missouri v. Frye, the Court held that Frye's attorney acted incompetently when he failed to communicate to Frye a plea offer from the prosecution. (10) Lafler v. Cooper held that defendants who reject a lenient plea offer and go to trial due to counsel's bad advice, with the result of a harsher sentence, have a potential remedy. (11)

The case holdings thus all relate to an individual's right to information and counseling about a plea offer or guilty plea. They do not examine--and so do not directly establish--a defendant's right to a lawyer who meets minimal constitutional standards for "effective" plea bargaining between the defense attorney and the prosecutor. They regulate only the conversation between defense counsel and the client. For example, Padilla established the right to advice about the deportation consequences of a conviction, but did not establish the right to a lawyer who does an effective job avoiding deportation when feasible.

Yet it is difficult to conceive of a meaningful right to counsel if counsel is not required to function effectively in a plea bargaining system. This is precisely Jose Padilla's current situation, having won his ineffective assistance claim. (12) Back in the trial court on the original charges, Padilla's options are clear: he can go to trial or he can negotiate a plea bargain that avoids deportation. (13) For example, a carefully structured plea to felony solicitation under Kentucky state law (14) might allow Padilla to avoid deportation in his California immigration case. …

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