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Unknowing & involuntary = could have gotten a better deal?

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A guilty plea waives most of the rights that go with a trial -- trial by jury, proof beyond a reasonable doubt, privilege against self-incrimination, etc.  So of course for such a grave decision to be valid it must be knowing and voluntary.

What makes a plea involuntary?  Well, the Godfather method of "either your signature or your brains are going to be on that paper" would do it.  But voluntariness has been watered down below that.  The "knowing" part includes a knowledge of what the defendant is pleading to and the sentence (or range of possible sentences) that will follow.  Last year the Court added immigration consequences as well in Padilla v. Kentucky.  This inquiry is wrapped up with the right to effective counsel, as counsel is supposed to explain all this before the defendant pleads.

But is a plea unknowing or involuntary when the defendant knows everything the Court has said he is supposed to know and voluntarily chooses to accept the deal, but unknown to him he could have gotten a better deal earlier under a now-expired offer that his lawyer failed to tell him about?  That was the question argued before the US Supreme Court today in Missouri v. Frye.

JUSTICE SOTOMAYOR: Counsel, I have a two-part question.


JUSTICE SOTOMAYOR: All right. What exactly made his plea unknowing or involuntary, number one?

And number two, identify the right he was deprived of, substantive or procedural, by his attorney's failure to communicate the plea.

MR. QUEENER: The plea was unknowing and involuntary because he was not made aware by his counsel's unprofessional representation of all of the circumstances available to him, the consequences of entering that guilty plea, that would have included the 90-day on a misdemeanor if he had been aware of that.
Queener never made it to part 2.  Justice Alito promptly jumped on his answer to part 1 and noted that an offer no longer available wouldn't do him any good. Therefore knowing about it wasn't significant in his decision to accept the offer now on the table.  Justice Kennedy brought up the same issue a little later.

JUSTICE KENNEDY: Well, suppose -- suppose the case in which a plea offer's made, not communicated, and expires. And then there is a guilty plea here. And he doesn't -- and the defendant enters a -- a guilty plea but doesn't know about the prior offer. Is -- is there injury?

MR. QUEENER: There is -- there is an increase in sentence. And that's the situation here.

JUSTICE KENNEDY: Is -- is the plea involuntary? Pardon me, is it unknowing?

MR. QUEENER: It is -

JUSTICE KENNEDY: And what would he -- what would he have done had he known?

MR. QUEENER: It's unknowing in the sense that he did not know the -

JUSTICE KENNEDY: You mean, judge, I'm really sorry I didn't accept responsibility three months earlier?
So why aren't this case and Cooper easy cases?  If the end result is that a clearly guilty defendant gets no more than he deserves, what's the problem?  Justice Kagan seems to be the most sympathetic to the defendants in these cases, and her issue seems to be one of intercase proportionality.

But there is another prejudice, which is you and ten other guys are all in the same situation and those ten other guys come up with a favorable plea deal because their lawyers are paying attention, and you come up with an unfavorable plea deal because your lawyer has fallen asleep. And to the extent that we have an effective assistance right that means something, that unfairness needs to be addressed by it, doesn't it?

But addressed how?  When the prosecution offers a plea bargain, it trades a lesser sentence and possibly a lesser offense in return for early resolution of the case, getting the case off its docket and moving on to other cases.  If the case is resolved later, the prosecution has not received the consideration it was bargaining for. 

At that later stage, the prosecutor should be able to rescind the original offer and possibly offer a less favorable one.  Justice Ginsburg seemed to understand how unfair the proposed remedy is to the prosecution:

One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
Defense counsel's answer is that there is no perfect remedy, so we should give the defendant a sentence less than he deserves and stick it to the state.

The drastic result of punishing the state for the default of opposing counsel is justified in the situation where the end result is one with a reasonable probability of being a miscarriage of justice.  And only then.  What about Justice Kagan's inequality concern?  Well, as defense counsel says, "there is never going to be a perfect remedy."  In this case, letting some defendants off with less than they deserve while this defendant gets what he deserves is an inequality we have to live with.  "As close to perfect as we can get" is for his client to lose this case.

1 Comment

What was odd to me is that the State's position seemed to have had an easier time with this case than Cooper. All things being equal, I would think the result of an actual fair trial would be more inviolate than a plea deal. Perhaps, the libs started to realize that ruling for the criminal is simply wrong.

Kagan's worry that the right to counsel won't mean anything if 10 other guys get off with lighter sentences is ridiculous hyperbole. Sometimes, Justice Kagan, it's just impossible to help a guilty criminal--don't worry though, in your long career, you'll get a chance to help plenty of them.

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