H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Plea Bargaining In The 21st Century – The High Cost Of Bad Advice From Criminal Defense Lawyers

In March of this year (2012) the United States Supreme Court decided two cases that will change the face of plea bargaining forever.

The First Case – Cooper

In Lafler v. Cooper and Missouri v. Frye: Two U. S. Supreme Court cases involving criminal defendants who claim that their convictions should be overturned because they may have been convicted on lesser charges had their defense attorneys not given them bad advice.

The First Case – Cooper

The Facts:

In 2003 Anthony Cooper was charged with attempted murder for shooting a woman causing serious injury. A police officer witnessed the shooting. Prior to trial, the state offered Cooper a plea bargain carrying a shorter sentence than if he were convicted on all charges. His attorney advised against the deal. Cooper was later convicted by a jury and received the longer sentence.

The Issue:

In a the first case, Anthony Cooper was charged with assault with intent to murder after he shot a woman in the thigh and buttocks. Prosecutors twice offered a plea deal with a recommended prison term of four to seven years, but Cooper’s lawyer advised him to reject the offer, because the lawyer said Michigan law did not permit an attempted murder conviction for wounds below the waist. The advice was indisputably wrong and Cooper was tried, convicted and sentenced to three times as much prison time.

The Second Case – Frye

The Facts

In 2007, Galin Frye was charged with driving with a suspended license, a felony because of his multiple prior convictions. Prior to trial, the prosecutor offered to allow Frye to plead guilty to a misdemeanor and serve 90 days in jail. Frye’s attorney did not report this offer to his client. Later, Frye pled guilty to the original felony charge and received 3 years in prison.

The Issue:

In Frye’s, the prosecutor sent Frye’s lawyer a letter offering to reduce the charge to a misdemeanor if Frye would plead guilty and agree to a 90-day sentence. The lawyer, however, never informed his client of the offer, and when it expired, an uninformed Frye pleaded guilty with no conditions and was sentenced to three years in prison, more than 10 times the plea bargain offer.

The Ruling:

For the first time, the U.S. Supreme Court has ruled that…

…defendants charged with criminal acts have a constitutional right to effective assistance of counsel in plea bargains. In a 5-4 decision, the United States Supreme Court went further, declaring that…

when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea offer.

The government in both cases conceded that the defense lawyers provided ineffective legal assistance to their clients, but the each of the states’ attorney general contended that it didn’t matter since there is no constitutional right to a plea bargain…the United States Supreme Court rejected that argument by a 5-4 vote.

H. Michael’s Take

For the first time in my recent memory – the US Supreme Court took a hard look at the reality of the United States criminal justice System and found that it is “A System Of Pleas/”

Justice Kennedy found that the reality is that the criminal justice today is “a system of pleas.” Ninety-five percent of all convictions are the result of plea bargains, not trials, and the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the “central role plea bargaining plays.”

In truth plea bargaining determines “who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system,” Kennedy said.

The Court’s ruling held the following:

….defendants should get a second chance to accept the original offer if they can show they very likely would have done so originally, that the prosecutor would not have withdrawn the offer, and that the judge would have approved it.

Rachel Barkow, director of the New York University Center on the Administration of Criminal Law put it best when she said:

This is a very practical court, and I think this is a court that says: Look, practically speaking, plea bargaining is where we need to be policing things,”

…Barkow said.

This is for 95 percent of defendants. All those defendants have is their lawyer, and if their lawyer is deficient, then those defendants have nothing.”

Put another way by another expert:

Get real — most of the bad lawyering occurs in cases that involve plea bargaining because most cases involve plea bargaining