Supreme Court Looks At Plea Bargain Advice: How Much Bad Lawyering Is Allowed?

WASHINGTON -- When Anthony Cooper shot a fleeing woman in the thigh and buttocks back in 2003, his lawyer advised him to reject the prosecution's deal because those below-the-waist wounds would shield him from any suggestion he tried to kill her. The advice was absurd.

The question before the Supreme Court on Monday morning was whether it was absurd enough to violate Cooper's Sixth Amendment right to effective assistance of counsel.

The facts of Lafler v. Cooper are straightforward enough: Michigan prosecutors offered Cooper a lower sentence in exchange for his pleading guilty to assault with intent to murder. His lawyer told him to reject the deal, and he did. At trial, Cooper was convicted and received a stiffer sentence than the one initially offered by prosecutors.

Michigan's solicitor general, John Bursch, spent nearly 20 minutes Monday arguing that such an outcome did not violate the Constitution under the Court's precedents. To prove a Sixth Amendment violation, Bursch maintained, "you have to demonstrate unreliability of the adjudicatory process," and a botched plea bargain alone does not impact a trial's fairness.

Justice Sonia Sotomayor, along with Justices Elena Kagan and Ruth Bader Ginsburg, challenged Bursch's narrow interpretation. "How can you talk about the reliability of a process or its fairness when you have an attorney who has fundamentally misgauged the law," asked Sotomayor. He responded that the Court "has drawn a bright-line rule" only to consider actions that occur at trial or that led to the absence of a trial.

Ginsburg asked Bursch to explain why "defective advice causing a plea" can violate the Sixth Amendment, but "defective advice causing a defendant to turn down a plea" does not.

Justice Antonin Scalia then spoke up. The difference, Scalia said, is that "when you plead guilty, you deprive yourself of the 24-karat test of fairness," which is trial by a jury that has to "find you guilty beyond a reasonable doubt." On the other hand, he continued, "when you don't plead guilty, you get what is the best thing in our legal system."

Justice Stephen Breyer joined sides with Sotomayor, Kagan and Ginsburg once Assistant U.S. Solicitor General William M. Jay began to argue in support of Bursch's case. In doing so, Breyer adopted textualism, which is Scalia's favored method of interpreting the Constitution, to undercut Scalia's own position.

The text of the Sixth Amendment, noted Breyer, talks about criminal cases "requiring the assistance of counsel for defense, period." Accordingly, Scalia had no textual basis for adopting a rule that differentiated between actions before trial and actions at trial. And the cases creating that distinction, Breyer went on, were too fact-specific to apply to the case at hand.

But that cursory analysis -- surely not as thorough as Scalia would have preferred -- was all the textualism Breyer would offer. He quickly moved to his own more-holistic, pragmatic approach. Defendants plead guilty "in 95 percent of the cases," Breyer said, echoing figures put forward by Sotomayor earlier in the hour. The figures, which indicate that the plea bargain is central to the criminal defense process, were the liberal justices' strongest argument against the case put forward by the solicitor general offices of Michigan and the United States.

This line of thought clearly had some pull with Justice Anthony Kennedy, too. When Jay, with Scalia's help, reiterated Bursch's distinction between guilty pleas and no pleas, Kennedy incredulously asked, "Do you want us to write an opinion that plea negotiations are not a critical stage of the criminal process unless at the end of the day a guilty plea results?"

Even if there may have been a fragile majority to hold that Cooper did suffer a Sixth Amendment violation, the justices all struggled with what relief should be granted. Justice Samuel Alito wondered if there was any way "to unscramble the eggs in this situation," once the trial has already taken place and all the evidence has been laid out for judge and jury to consider. "Does the judge have to rescind all knowledge of what he learned in the trial?" asked Kennedy. And what if it has been discovered between the initial plea offer and the trial that the defendant "committed five murders, 10 murders," Alito asked Cooper's lawyer, public defender Valerie Newman.

Aggressively pressed for a half-hour, Newman tried to repeat the arguments put forward earlier by Sotomayor, calling Cooper's trial "a charade" because of his attorney's bad advice. Ginsburg then jumped in to note that in her written briefs to the Court, Newman had "conceded [Cooper] had a fair trial." It "can't be a charade and still be fair," said Ginsburg.

Newman then sought shelter in Breyer's point about the Sixth Amendment text, noting its broad language to protect against "unfairness of the entire proceedings" -- from plea bargain through trial. But it was too late: She had lost Kennedy.

"You are saying it was unfair to have a fair trial?" he asked twice. Newman tried to respond, but he dismissed her answers as unsatisfactory. "That has to be your position," Kennedy concluded.

Lafler v. Cooper -- along with a companion case also argued Monday morning, Missouri v. Frye -- will likely be decided by the end of June next year.

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