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Ineffective Assistance at Plea Bargaining?


Today the U.S. Supreme Court granted certiorari in the Idaho murder case of Arave v. Hoffman, No. 07-110. The panel opinion is here. The denial of rehearing en banc, with dissent by Judge Bea and six others, is here. SCOTUS blog has the petition and the brief in opposition. The case involves a claim of ineffective assistance of counsel in the plea bargaining stage of the proceedings.

Hoffman was offered a plea deal of first-degree murder with no death penalty. His lawyer advised him to turn it down. Based on the then-recent Ninth Circuit opinion in Adamson v. Ricketts, 865 F.2d 1011 (CA9 1988), he believed that Idaho's death penalty would be struck down. He was correct that the Idaho law was not distinguishable from the Arizona law in Adamson, but the Ninth Circuit's decision was not the last word. The Arizona and Idaho Supreme Courts disagreed, and the U.S. Supreme Court resolved the split in their favor, for the time being, in Walton v. Arizona, 497 U.S. 639 (1990).

In the District Court, Hoffman got relief from the penalty for reasons not at issue here. Although the state initially cross-appealed from that decision, it has abandoned the cross-appeal. In terms of the result in the individual case, it appears to be about a potential retrial of the penalty phase, as the state no longer has a death judgment, and the relief Hoffman seeks would leave him convicted of first-degree murder.

Was it ineffective assistance to rely on Adamson without considering it might be reversed? Judge Bea, for the en banc dissenters, characterizes the panel's affirmative answer, "in what may be a new high in self-effacing candor, the panel holds that it is ineffective assistance of counsel to rely on Ninth Circuit precedent with respect of federal constitutional law applicable in states located in this Circuit." I'm inclined to go with the panel on this one. Even back then, the Ninth's reversal rate was such that one ought not bet the farm that its position would prevail in a conflict with the state high courts.

But was counsel's error, if it was error, prejudicial? The state asked two questions in its petition for certiorari:

1. Because the Ninth Circuit did not require Hoffman to prove Wellman’s recommendation constituted "gross error" and mandated Wellman "be prescient about the direction the law will take," did the Ninth Circuit err by rejecting this Court’s prohibition regarding the use of hindsight to conclude Hoffman established deficient performance?

2. Because Hoffman failed to allege he would have accepted the state’s plea offer but for Wellman’s advice and the Ninth Circuit determined Hoffman’s decision to reject the offer was not a "principled stand," did the Ninth Circuit err by concluding Hoffman established prejudice?
Today, the Court asked for briefing on a third question:
3. What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?
At least in the context of a collateral attack on a final judgment, I think the answer to Question 3 is "none." A plea bargain that gets a criminal off with less than he deserves is a windfall. The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.


The idea that a federal habeas court could undo a judgment that resulted from a fair trial because of ineffective rep during plea negotiations is troublesome on many levels.

Sometimes the 9th Circuit just amazes me how they dispose of some of their cases. Of course, any opinion by Pregerson is just as outrageous as one by Reinhardt. Reversal by SCOTUS.

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