A Rejected Offer (After a full and Fair Trial) may be Ineffective Assistance of Counsel

Lafler v. Cooper (SCOTUS March 21, 2012)

Note. This is the companion case to Missouri v. Frye.

Background. Anthony Cooper fired a gun at Kali Mundy's head. He missed and Mundy fled. Cooper chased Mundy and fired at her some more. She was hit in her buttock, hip, and stomach, but survived. Cooper was charged with assault with the intent to murder, possession of a firearm in the commission of a felony, and a misdemeanor for possession of marijuana. Twice the prosecution offered to dismiss two charges and recommend at sentencing 51 to 85 months for the other two in exchange for a guilty plea. Cooper admitted guilt to the court and appeared to be ready to take the deal. But his attorney persuaded him to reject the offer after opining that they would be unable to prove murderous intent because Mundy was shot below the waist. Cooper then rejected the offers. On the first day of trial, the prosecution made a third offer on much favorable terms; again it was rejected. Cooper was found guilty as charged and sentenced to a mandatory minimum of 185-360 months in prison. Cooper argued in a postconviction hearing that his counsel's advice to reject the plea offers constituted ineffective assistance of counsel. The trial court rejected the claim the Michigan Court of Appeals affirmed, and the Michigan Supreme Court refused to review it. Cooper filed for habeas relief. The federal courts granted relief and ordered "specific performance" of Cooper's original plea agreement.

The Accused has the Right to Effective Assistance of Counsel in Plea Negotiations. The right to effective assistance of counsel guaranteed in the Sixth Amendment extends to plea-bargaining negotiations. Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Padilla v. Kentucky, 559 U.S. __ (2010); Missouri v. Frye, __ U.S. __ (2012). Under the two-prong Strickland analysis, the defendant must show (1) counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland, 466 U.S. at 688.

A Huge Concession. The first prong requires the defendant to identify deficient performance by counsel. The defendant must show "that counsel's representation fell below an objective standard of reasonableness." Id. Here, all parties agreed that Cooper's trial counsel was "deficient when he advised [Cooper] to reject the plea offer on the grounds he could not be convicted at trial." Given that concession, the SCOTUS did not examine the first prong and focused solely on the prejudice prong.

Later, the majority backed away from this concession by agreeing with the Court of Appeals for the Sixth Circuit that "an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." But because of the concession, the SCOTUS did not address the question and assumed that the first prong had been met.

Prejudice. Prejudice is established when the defendant shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The SCOTUS took the same standard from Frye.

[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of the intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

The SCOTUS agreed with the lower federal courts that Cooper adequately demonstrated prejudice. Cooper showed that but for counsel's deficient performance, there is a reasonable probability that he and the trial court would have accepted the deal. As a result of rejecting the offer, his sentence was much more severe.

Prejudice can Arise Despite a Full and Fair Trial. In adopting this standard, the SCOTUS rejected the argument by the prosecution and the Solicitor General that no prejudice can arise if the defendant is later convicted at a fair trial. This is a case, according to the SCOTUS, where the trial verdict did not cure the error. In fact, as a result of the trial, Cooper received a much more severe sentence. "Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence."

So What's the Remedy? Sixth Amendment remedies should be "tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364 (1981). The remedy is designed to cure the error without providing a windfall to the defendant or squander the prosecution's resources. When a defendant rejects a plea offer as a result of counsel's ineffective assistance, the SCOTUS noted two possible remedies.

Resentencing or "Reoffering"? One remedy may be nothing more than imposing the sentence the defendant would have received. This, according to the SCOTUS, would usually arise in cases where the offer does not propose amending the charge, and it simply has a sentencing recommendation. In other words, resentencing would be the proper remedy. The other remedy may be requiring the prosecution to reoffer the plea proposal. That remedy is the kind where the offer proposed to amend the charged offenses. In that case, the judge would have discretion to vacate the jury's verdict and conviction, or leave the conviction undisturbed and impose a new sentence.

Here, the federal district court ordered "specific performance" of the plea agreement--that is, resentencing. However, the SCOTUS held that the proper remedy--in light of the terms of the plea offer--should be the reoffering of the original plea deal. If Cooper accepts it, the trial court then has the discretion to vacate the conviction and resentence him based on the terms of the agreement, vacate only some of the convictions and resentence, or leave the verdict and sentence as is.

Justice Scalia's Dissent. Justice Scalia highlighted the illogical nature of the conceded error: "Anthony Cooper received a full and fair trial, was found guilty on all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooperis entitled to some sort of . . . relief (perhaps) because his attorney's allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial."

Justice Scalia first took aim at the conceded error. He wrote that as there is no right to enter a plea bargain, there should be constitutional deficiency in rejecting a plea offer. It was that simple for him. Although attorneys may err and provide bad advice, it need not be a constitutional violation. As for the second prong--the prejudice--Justice Scalia wrote that the ultimate test for prejudice is whether it the error was fundamentally unfair. Here, for Justice Scalia, it was not. Cooper had a fair trial.

Justice Scalia turned to the remedy itself. He wrote that the remedy was "unheard-of in American jurisprudence." He noted that why should the remedy be a reoffering of the plea agreement and waiting to see if the defendant accepts it based on a finding that the defendant would have accepted it but for the deficient performance of counsel? Why not skip that step all together? Here's how he summarized his thoughts on the majority's remedy:

I suspect that the Court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any "remedy" provided for will do nothing but undo the just results of a fair adversarial process.

The Chief Justice and Justice Thomas joined in this part of the opinion.

Justice Alito's Dissent. Justice Alito wrote separately to address the problem of requiring the prosecution to reup an old plea offer. It is unfair to revive the offer once "new information about a defendant's culpability comes to light after the offer is rejected[.]" It is also unwise because a rejected offer leads to a drain in prosecutorial resources. Justice Alito wrote that the Court's interpretation of the Sixth Amendment is "unsound."