Mar 2012

Negotiating Your Future: Your Rights When Plea Offers Are On The Table

In two recent decisions released last week, the U.S. Supreme Court ruled that attorneys mishandling plea negotiations can be a basis for finding a violation of the Sixth Amendment right to counsel. It is your right to be fully informed of every plea offer made in your case.

In Missouri v. Frye, the parties agreed that defense counsel was deficient: the prosecutor sent Frye’s attorney an expiring plea offer, but his attorney never informed him there was a plea deal on the table. Turns out, the prosecutor had offered to drop the charge to a misdemeanor with recommendation of 90 days in jail. The prosecutor made a SECOND simultaneous offer that kept the charge a felony, but could have resulted in only 10 days in jail. Uninfomed by his own attorney, and completely unaware of these opportunities to avail him self of a “deal”, Frye eventually pled guilty to a felony and received a sentence of three years in prison.

Missouri argued that Frye, “the client” could not show that he was harmed by his defense attorney’s neglect: it is well-established that defendants have no right to a plea offer. The Court pointed out that 97% of criminal cases are resolved through plea bargaining. It held that if Frye could show that the prosecutor would likely not have backed out on the deal and that the trial court would likely have accepted his plea, he could show his Constitutional rights were violated and receive a new trial.

In Lafler v. Cooper, a Michigan case, arising in Wayne County, the defense attorney advised Cooper to reject a plea offer and proceed to trial. This advice was based on the attorney’s incorrect legal understanding of the standard of intent that the prosecution needed to meet to convict Cooper of assault with intent to murder. Three other charges were brought against Cooper. The attorney’s theory was that because Cooper shot the victim below the waist, the intent to murder could not be shown. The prosecutor TWICE offered to drop two other charges and recommend roughly 4-7 years in prison instead of a possible life sentence. Cooper rejected the plea offer and was convicted in Wayne County Circuit Court by a jury on all four counts. Cooper was sentenced to 15-30 years in prison.

As in Frye, both parties agreed that counsel’s performance was deficient. While the Michigan Court of Appeals denied Cooper’s claim of ineffective assistance of counsel after a Ginther hearing, and the Michigan Supreme Court denied leave to appeal. Defendant filed a habeas petition, and the District Court for the Eastern District of Michigan found that the Court of Appeals unreasonably applied Strickland[i], and ordered specific performance of the plea and the 4-7 year sentence. The Sixth Circuit Court of Appeals affirmed the District Court, and so did the Supreme Court. The Supreme Court modified the remedy, and ordered that the Wayne County Prosecutor must re-offer the plea.

These cases will likely increase the formality of plea bargaining into the future, and offer more concise standards by which ineffective assistance of counsel can be shown where a plea offer is involved. Plea bargaining is now recognized as a critical stage of the defense.

Actual fairness won out over the appearance of fairness standard that has been promulgated when defendant entered a voluntary plea or received a trial. These were both split decisions and it will be interesting to see if further cases broaden or narrow the standards of reasonableness of defense counsel’s proficiency in plea offers and legal standards.

If you or a loved one has been charged with any crime, it is imperative that you seek out highly qualified, competent counsel. Where your liberty is at stake, only the most qualified and experienced advocate can properly defend you against these charges. As these cases show, you need attorneys that are experienced enough to properly posture your case and effectively plea bargain, take responsibility for communicating offers to you, and know the law well enough to advise you correctly so you can determine whether to proceed to trial or not.

If you or a loved one has been convicted by plea or at trial , the fight is not over – in fact, it may have just begun. You have many post-conviction options available to you: the right to file a motion for new trial, a motion for a Ginther[ii] hearing challenging your lawyer’s ineffective assistance of counsel, an appeal to the court of appeals, a state 6500 motion, and ultimately 2254 habeas petition in federal court. We at Kirsch & Satawa, P.C., have been defending the rights of criminal defendants for the better part of 20 years, both at trial and in post-conviction cases and appeals. We have the experience, expertise, zealousness, and resources to properly defend you against the accusations of the state, or challenge a conviction that has already been entered against you. We encourage you to contact us immediately to discuss your case.

Lisa Kirsch Satawa practices in the area of criminal defense, specializing in sex crimes. She is a member of the National Association of Criminal Defense Lawyers, the board of Directors for the Criminal Defense Attorneys of Michigan, and has lectured extensively on defending allegations of child abuse and criminal sexual conduct not only throughout Michigan, but all over the country as well.

[i]In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that to show ineffective assistance of counsel, two parts must be shown: (1) counsel’s performance fell below an objective standard of reasonableness, and (2) defendant was prejudiced by the deficient performance – in other words, had counsel performed adequately, the result of the relevant proceeding—trial, sentencing, appeal—would have been different.

[ii] This is a hearing based on People v Ginther, 390 Mich. 436 (1973), in which the trial court holds a post-conviction hearing and a judge applies the standard set in Strickland to make a determination of the effectiveness or ineffectiveness of trial counsel.

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