Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
_ Yesterday, The United States Supreme Court has just handed down two split decisions on the rights afforded to criminal defendants in regards to plea bargaining. 

 In Missouri v. Frye,  No. 10-444 (2012), the court found that a Defense Attorney had a duty to convey all written plea offers to the criminal defendant and the failure to do amounts to ineffective assistance of counsel and a violation of the defendant’s  sixth amendment rights.  This decision is not likely to have far reaching implications.  While it is true, though some attorneys acting on previous instructions of their defendants refuse plea offers without communicate such offers to the defendant, very few of these offers are in writing.  Typically a plea agreement, or “green sheet” as they are called in Massachusetts are not drafted until there is an agreement between the parties.  An assistant district attorney, particularly in the face paced hurly burly of the District Court, would be unlikely to draft plea offer without the prior acquiescence of the defendant.

In Lafler v. Cooper, No. 10-209 (2012), however, the court held that bad advice from defense counsel about whether or not to take a plea agreement may amount to ineffective assistance of counsel and a violation of the defendant’s sixth amendment rights.  Where a defendant refused a plea offer from the prosecution which he or she would otherwise accepted, on the basis of an attorney’s recommendation which itself was grounded in an error in law, the split court found the criminal defendant’s sixth amendment rights were violated.  In this case, the defense attorney told his client that the prosecution would not be able to prove “intent” to kill, where the victim was shot below the waist. 


This case has much farer reaching implications.  Defense attorneys regularly make judgments about what they believe the prosecution can prove.   Elements of a crime, including intent, are facts for a jury to consider and they must be proven beyond a reasonable doubt.  These are not legal principals.  A jury considers all the evidence in coming to a decision and the weight it gives any individual piece of evidence is up to the jury alone.  The fact that a victim was wounded in an area that produces a non-lethal wound is certainly a factor a jury might consider in weighing intent.  The problem as it appears hear is the confidence with which the attorney presented his opinion about how the jury would weigh the evidence.  While the attorney suggested the prosecution could not prove its case, in fact he would have been better to have advised his client that in his opinion and based in his experience it would be unlikely that a jury might find the element of intent based on those facts.  The absoluteness is what the court found problematic.


Proving the advice your attorney gave you and that you would have accepted the plea otherwise is somewhat problematic.  In this case, the defendant was on record having indicated that he would accept the plea, before he had an opportunity to consult with counsel.  While that can occur, it is infrequent and most initial offers are not on the record.  Harder still is the proving the advice an attorney gave you unless it is in writing.  Of course, a criminal defendants communications with his or her attorney are privileged and confidential.   Because they are privileged and confidential they rarely take place in front of witnesses.   That, privilege and confidence, however, belongs to the defendant and not the attorney, and a defendant can compel his trial attorney to take the stand and reveal the advice he gave the client.


If the only difference between the trial and plea is that the defendant would have received a lesser sentence under the plea, the court found, that the trial court should have an evidentiary hearing to determine whether the defendant would have accepted the plea. If so, the court may exercise discretion in determining whether the defendant should receive the term offered in the plea, the sentence received at trial, or something in between.

If, however, the offered guilty plea was for less serious counts than the ones for which a defendant was convicted after trial, or where a mandatory sentence confines a judge’s sentencing discretion. In these circumstances, the proper remedy may be to require the prosecution to reoffer the plea. The judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea, or leave the conviction undisturbed. In either situation, a court must weigh various factors. For example, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.  Additionally, a judge is not required to disregard any information concerning the crime discovered after the plea offer was made.


Prosecutors are concerned that this case may open a flood gate of litigation, for everyone who accepted a plea over the last 30 years.  As over 90% of all state and federal convictions are the result of plea agreements, this is not a minor concern.  The court, however, looked to the 6th circuit where this rule has already existed and found the courts able to handle the volume of litigation.  A very real concern for defendants is that prosecutors are less likely to offer plea agreements.  Because the defense counsel’s advice is privileged and the prosecutor has no right to know what advice was given, he or she may be gun shy about offering an agreement only to be refused and not know the basis of the refusal.  It may result in the need for a judicial colloquy on each refused plea prior to proceeding to trial, in order to assure that the defendant was afforded al the sixth amendment protection and that a trial would not be a waste of judicial resources where the defendant would have accepted had he or she been correctly advised of the law.   Note currently such colloquy’s caused only when defendants accept pleas not when they refuse them.  This is real danger to judicial economy.  Additionally, defendants, may be intimidated by judges who appear to be second guessing the advice defense counsel has given them, deteriorating the attorney client relationship.


If you or a loved one has accepted a plea agreement and believe the protections of the sixth amendment were not given, contact the Law Office of Isaac J. Mass for a free initial consultation.  We offer flat rates to investigate and review records find errors of law.  You need not be currently incarcerated to take advantage of this decision.  If you were convicted of a serious crime for which you have already served your time, but were offered a plea for a lesser offense, this case may help clear your record.  You can never get back time served, but a cleaner record may make it easier in some cases to find employment or other services.


(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301