Supreme Court Watch Court: Lawyers must do good job on plea bargains Scalia dissents aloud from the bench

By Jesse J. Holland Associated Press WASHINGTON (AP) -- A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors' offers of less prison time for convictions and guilty pleas. Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions "absurd" and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain. "The court today embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house, that is, serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated," Scalia said. "I do not subscribe to that theory. No one should, least of all justices of the Supreme Court." The two opinions, both written by Justice Anthony Kennedy, have the potential to affect thousands of criminal cases with the Justice Department reporting that 97 percent of federal convictions and 94 percent of state convictions in 2009 were the result of a guilty plea. The decisions laid out by Kennedy means that criminal defense lawyers are now required to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must give their clients good advice on whether to accept a plea bargain at all stages of prosecution. If they don't, Kennedy said, they will run afoul of the Sixth Amendment right to assistance of counsel during criminal proceedings. "The right to counsel is the right to effective assistance of counsel," Kennedy said. In the cases before the court, Galin Edward Frye was never told by his lawyer about plea bargain offers from Missouri before he pleaded guilty to driving with a revoked license before his trial. In the second case, Anthony Cooper rejected a plea offer on the advice of his lawyer, and then was convicted of assault with intent to murder and other charges and sentenced after a jury trial in Michigan. In both cases, Kennedy sent the convictions back down to the lower courts because the actions of the lawyers. "This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused," Kennedy said. "... When the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires." In the second case, "if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it," Kennedy said. "If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence." Kennedy was joined in both opinions by the court's liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. In Frye's case, a lower court will have to decide whether prosecutors would have been required to stick to their offer to Frye, because he was rearrested on the same charge of driving with a revoked license less than a week before his preliminary hearing. Frye's August 2007 arrest was his fourth on the same charge, so he was charged with a felony that had a maximum sentence of four years. Missouri prosecutors originally offered Frye two deals, including pleading to a misdemeanor with a sentence recommendation of three months. With no knowledge of that offer, Frye ended up entering a guilty plea and was given three years in prison. Cooper was arrested after shooting a woman in the buttocks, hip and abdomen in 2003. He was charged with assault with intent to murder and three other charges, but was offered a deal where prosecutors would drop two of the charges and recommend a maximum of 85 months in prison. But Cooper's lawyer told him to reject the deal, saying incorrectly that the prosecutors couldn't prove murder because he had shot the woman below the waist. He did, and was sentenced to a maximum of 30 years in prison. Kennedy said Michigan prosecutors should offer Cooper his plea bargain for a prison term of around seven years again, with a lower court judge ruling on whether to vacate some or all of his convictions, or do nothing about his 15-to-30 year sentence. That concerned Justice Samuel Alito, a former U.S. attorney in New Jersey. "In my view, requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant's culpability comes to light after the offer was rejected, and second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources," said Alito, who wrote a separate dissent in that case. Scalia was joined in full or in part in both dissents by Chief Justice John Roberts and Justice Clarence Thomas. Alito joined Scalia's dissent in the Frye case. Scalia noted that prosecutors were being punished by having their cases go back to court, when it was the defense lawyers who made the errors. "In today's cases, the court's zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just convictions," Scalia said. "It is not wise; it is not right." Published: Thu, Mar 22, 2012