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On Monday, the United States Supreme Court heard oral argument in two cases concerning a defendant’s right to counsel in the plea bargaining context. In both Lafler v. Cooper and Missouri v. Frye, defendants passed up favorable plea offers from the government because of mistakes of their lawyers. In Cooper, the government made the defendant an offer of four to seven years, but the defendant’s lawyer advised Cooper not to take it, as he thought that a conviction on the charges brought was legally impossible. (The lawyer mistakenly believed that a person could not be convicted of assault with intent to murder when the bullets shot struck the victim below the waist.) Cooper went to trial, lost, and is now serving a much longer sentence. In Frye, the lawyer failed to tell his client that the prosecution had offered him the chance to plead guilty to a misdemeanor offense and a ninety-day sentence. By the time the defendant was due in court, the offer had expired, Frye pled guilty without a plea agreement, and was sentenced to three years in prison. The question before the Court in both cases was whether the defendants’ Sixth Amendment rights had been violated.

While the Supreme Court has already established that a defendant has a right to the effective assistance of counsel when he or she determines to plead guilty, the Court has yet to decide whether a defendant has a right to effective (or any) legal advice before he or she decides to decline a plea offer. While both Cooper and Frye were harmed by their lawyer’s failures, the Court was left to answer two questions: whether the lawyer’s conduct amounted to ineffective assistance of counsel and, if it did, what was to be done about it?

The justices wrestled first with understanding whether poor advice regarding taking a plea deal, that resulted in a client not taking that deal, could meet the Strickland test for ineffective assistance of counsel. Under the Supreme Court case Strickland v. Washington, the lawyer’s error generally must be one that undermines the reliability of the proceeding at issue—the guilty plea or the trial. Here, as counsel for the petitioners pointed out, the defendants received fair treatment by the judicial system; Cooper received an error-free trial and Frye pled guilty knowingly and willingly to an offense he did commit. In other words, both defendants were convicted and served sentences for crimes they were adjudged guilty of committing. And as counsel for the petitioners further argued, the defendants had no right to a favorable plea bargain, only a right to a voluntary and knowing plea or a fair trial. Here both defendants received fair hearings, even though they were poorly served by their counsel and were serving longer sentences as a result.

The second basic question the justices wrestled with was what to do if the Court found there was a constitutional right to effective assistance of counsel in these situations. Would the trial court, upon learning of counsel’s error, insist that the prosecution re-offer the initial favorable plea deal, even after the prosecution had secured a verdict? Would the trial court have to accept the plea?

These questions, while difficult to answer, are important ones in the criminal justice system today. In 2010 in the District of Massachusetts, over 94% of cases were resolved with guilty pleas, and nationally, the number is over 96%. So while a defendant’s rights at trial are well defined—the product of hundreds of years of legal thinking—those rules aren’t ultimately relevant to most defendants. Because a vast majority of criminal defendants never exercise their right to go to trial, much of a defendant’s sentence is determined in the negotiations that go on between the prosecutor and defense counsel long before a judge begins to consider what the sentence should be. The Court now has an opportunity to think about the rules of the game— outside of the courtroom—where almost all of the action is. The decisions rendered in these cases have potentially significant implications for those accused of crimes and the landscape they face when trying to negotiate a plea agreement.

This alert was prepared by Sarah Kelly, a partner in the Government Investigations and White Collar Defense practice group at Nutter McClennen & Fish LLP. For more information, please contact Sarah or your Nutter attorney at 617-439-2000.

This article is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.