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You are saying it was unfair to have a fair trial?

The title of this post is a question by Justice Kennedy in oral argument today in Lafler v. Cooper, and it pretty much says it all. 

Cooper's claim is that a better lawyer would have advised him to take an offered plea bargain.  He rejected it, on his lawyer's advice.  He went to trial and was convicted of the crime of which he is very plainly guilty.  He got a sentence appropriate for that crime.

So where's the beef?  Thousands of defendants petition the Supreme Court every year claiming they were denied a fair trial or received an excessive sentence.  Cooper's complaint is that he got a fair trial and an appropriate sentence.

The Supreme Court's decision in the landmark ineffective assistance case, Strickland v. Washington, sets out a general principle and then implements that principle for most cases with a specific test.  As is common, though, there are some circumstances where the specific test does not actually implement the general principle, and we have to make exceptions.

The general principle is that ineffective assistance is a reason to set aside a criminal judgment only when we have good reason to lack confidence in the reliability of the result.  The specific test -- framed with bad performance at trial in mind -- is to ask whether there is a reasonable probability of a different result.

Yet in Strickland itself and in several cases since, the Supreme Court has noted that there are some cases where a different choice by the lawyer might very well have changed the result but not in a way that causes us to doubt the reliability.  A lawyer might get a clearly guilty client off by making a pitch for jury nullification, by letting the client commit perjury, or by making a legal argument we now know is wrong, though it might have been accepted at the time.  None of these is a ground to overturn the judgment.  They do not undermine our confidence that the trial got it right.

So it is with failure to get the client a good deal in plea bargaining when that is followed by a fair trial and just sentence.  Defense counsel said, "I'm saying it's unfair to say that the trial erases the unfairness when there is no possibility but for a conviction at the end of the road."  But there is no unfairness.

Failure of counsel to get a good plea bargain -- where "good" means the client is convicted of less than he committed and sentenced to less than he deserves -- is not "unfair" because the defendant has no right to it.  He has a constitutional right to a fair trial.  He got it.  End of case.

Update:  AP has this brief story, indicating the justices were "reluctant" to buy the defense arguments in this case and Frye.


I noticed that as well. Though the logic of the Warden's position is, I believe, compelling, the case law seemed to give the Warden an uphill battle. I am more optimistic than I was before the argument having now read the transcript of the argument (also found telling Justice Alito's discussion of how the claim cannot be cabined, and would apply to defense counsel mis-assessments of the strength of the prosecution case and/or the strength of the defense case as well).

I actually do not think the caselaw creates an uphill battle, once the caselaw is properly understood. Expanding the ineffective rep remedy to the "I would have taken the plea" scenario breaks loose the right to effective representation from its moorings, i.e., to protect the accused's right to a fair trial. In my view, it is extraordinarily difficult to argue that a right which is in place to protect a right to a fair trial is violated by getting a fair trial.

With respect to "fairness," I actually think that's a poor choice of words (other than to make a quip like Kennedy did). In the sense of "cosmic fairness," it's clearly unfair for a particular defendant to get more time than what similarly situated defendants will get. But those are the breaks. The issue is what the Constitution requires, and given that Strickland already is a stretch, it seems lawless to me to give the judiciary a free-ranging power to set straight "cosmicly" unfair results emanating from the plea bargaining process. Defendants may get breaks from rookie prosecutors, prosecutors who have a honeymoon to go on etc. etc.

Finally, it would seem blindingly wrong to require the result of a fair trial to be overturned. What does it say to the victims? Additionally, what if counsel was not state-provided? Should the state really bear the burden here?

One other thing about the argument--the death penalty. The Justices seemed concerned about this in the death context. Of course, this sort of argument would be most effective where the death penalty was the most deserved, and it would make prosecutors less likely to offer it. Truly bad law.

The Court's questioning noted (thank goodness) the fundamental practical problem with the defendant's stance: It's all hypothetical. How easy it is to claim after the fact that a better lawyer would have recommended taking the deal, that the defendant would have agreed, that the court would have accepted it, that the prosecutore would not have intervened with a counter-offer, etc.

The whole thing is unworkable, and for that reason alone the defendant will lose. That's without even getting into the fact that no one has yet discovered the part of the Constitution setting forth plea bargaining as the way to resolve criminal charges. I had thought it said something about speedy and public trials and that sort of thing. Indeed, it was not clear until the 1970's, with the handing down of Santobello, that plea bargaining was even PERMISSIBLE.

In my view, the unworkability of it, other than pointing out, as Scalia did that the unworkability may be a sign that the Constitution was not violated, really isn't so much the issue. I don't think the Court should feel itself bound only by "workability." Rather, I wish they'd simply look at their own caselaw which clearly states that the right of effective assistance of counsel is there to protect the right to a fair trial, and since the defendant got a fair trial, there is simply no harm, from a Constitutional standpoint.

What is truly remarkable is that federal courts have been bouncing convictions in habeas petitions. How is this possible, given the fact that the Court seems poised to deal the defendants here a defeat?

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