By Steve Thorpe
Legal News
Assistant Defender Valerie Newman of the State Appellate Defender Office had a front row seat for the drama that is the United States Supreme Court, as she argued Lafler v Cooper before the court Oct. 31, 2011.
At the time, the intense and near-hostile questioning of the justices did not make for a pleasant experience for Newman. But she con-
cedes that the sweet taste of victory makes a nice counterbalance.
“The victory helps put the argument in perspective,” she says. “I think the reason the questioning was so intense and even searing was because, Justice Kennedy in particular, and other justices were trying to flesh out the ranges of the position. It really was useful in fashioning their opinion. In the end, the way the opinion came down was the way I argued it.”
The case involved plea bargning, a process which stirs some strong emotions in the legal community, and that includes the high court.
“There's a recognition by the majority of the court, which is abhorrent to Justice (Antonin) Scalia, that plea bargaining is such a pervasive part of the system,” she said.
On Wednesday, March 21, the court issued decisions on two cases, including Newman's Lafler v Cooper, along with Missouri v Frye, with sweeping implications for the criminal plea bargaining process.
The right to a jury trial is the foundation of the American legal system, but the vast majority — more than 90 percent — of criminal defendants never appear before a jury. Their cases are concluded and their sentences determined by plea bargaining.
Justice Anthony Kennedy, writing for the majority in both cases, says, “In today's criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
“It's 94 percent, I think, in state courts and 97 percent in federal courts,” Newman said. “Plea bargaining, like it or hate it, is now the system.”
If Justice Kennedy was the “point man” for the decision in her favor, what reason does Newman offer for his very tough questioning of her during arguments?
“My take on it is that he was troubled by the blanket assertions of the petitioners in the case, which the dissent picked up on wholesale,” she says.
In Newman's case, the prosecutor offered the defendant a 51- to 85-month sentence range for a guilty plea to assault with intent to murder. The defendant turned down the offer because his counsel told him he couldn't be convicted because the victim was shot below the waist. The defendant was convicted and sentenced to a minimum of 185 months.
“One of the reasons that the court took this case is that it’s conceded that defense counsel gave patently wrong advice to the client,” Newman said. “You talk to even non-lawyers ... everyone understands that it's assault with intent to murder. You might just be a bad shot. Aiming for the head and hit him in the legs. That was the advice given. He told him he could not be convicted of the crime.”
In Lafler, the 5-4 decision authored by Justice Kennedy, the court recognized the right to effective counsel during the plea process and rejected the idea that the “fair” trial of Lafler after the faulty plea bargain “wipes clean any deficient performance by defense counsel during plea bargaining. That position ig-
nores the reality that criminal justice today is, for the most, part a system of pleas, not a system of trials.”
Some analysts are predicting a wave of new litigation based on the Lafler and Frye decisions and Justice Scalia, joined by Chief Justice John Roberts (on all but the last part of the dissenting opinion) and Justice Clarence Thomas, criticized the majority for opening “a whole new field of constitutionalized criminal procedure: plea-bargaining law.”
Newman believes that prediction is overblown and she foresees little new litigation resulting.
“I just don't see a lot of litigation. Some attorneys who were unaware of this issue will now be raising it,” she said. “What I really see is an opportunity to make the system better. It's an opportunity for judges and prosecutors to make sure they take a little more time with plea colloquies and make sure the defendant understands what's going on, what's being offered and the consequences of rejecting it. It would virtually eliminate this claim."
Newman says she hopes that the case leads to reforms that make plea bargaining work better and protect the rights of the accused. She thinks she sees signs those changes are already beginning.
“(U.S. Attorney) Barb McQuade called to congratulate me and told me that her office was in the process of revising all their plea forms, adding things so this issue wouldn't happen,” Newman said. “Ultimately, that's what I want to see. No one should be litigating this.
“If the system worked properly, Mr. Cooper would've accepted that plea and that would've been the end of it. Instead we had eight years of litigation to get back to the same point. My hope is that this decision is a rallying cry to tighten up the system and make things work the way they're supposed to.”
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