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Failure of Consideration

Say you offer to buy my car for $10,000.  After consulting with my expert, I reject the offer.  Turns out my expert gave me bad advice.  The next week, I want to go through with the deal.  In the meantime, though, I have wrecked the car.  Would it be fair to make you pay me $10,000 for the now-wrecked car?

Of course not.  The thing you offered $10,000 for no longer exists, at least not in a form worth anywhere near $10,000.

A prosecutor offers a plea bargain to avoid the expense and uncertainty of trial.  Once the trial happens, there is no way the prosecution can receive the consideration it offered.  Restoration of a pre-trial offer after the trial has occurred is therefore never a fair remedy unless the underlying problem was somehow the fault of the prosecution.

The Supreme Court didn't see it that way today in Lafler v. Cooper.  A companion case, Missouri v. Frye deals with a similar situation with earlier and later pre-trial offers.

This is shaping up as one of the worst Supreme Court terms in a long time.

How can states protect themselves?  At a minimum, in the Cooper situation the defense lawyer should be personally liable for the cost of the trial.  If the defense was the public defender's office, the cost of prosecution should be transferred from the public defender's budget to the district attorney's budget.

Update:  From Justice Scalia's dissent in Cooper:

I am less saddened by the outcome of this case than I am by what it says about this Court's attitude toward criminal justice. The Court today embraces the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the Supreme Court.


Lafler v. Cooper is a joke. The cases go both ways, and the arguments are strong for the opposite result. AEDPA should foreclose relief. But because five members of the Court wish to come out with a certain result, they do. Disgusting.

Just stunningly bad--the prosecution could have withdrawn the plea offer on a whim before its acceptance, and now, after having convicted the defendant of a greater offense at a fair trial, is compelled in essence to make an "unwithdrawable" offer? Whatever happened to separation of powers? "Flipper" Kennedy strikes again.

I actually don't think, in the abstract, the idea that effective counsel for plea-bargaining is a bad idea. But that's just the problem. In practice, it's a terrible idea, since it encourages sand-bagging, it gives the guilty (since we're dealing with convicted people) the ability to have their cake and eat it too, and it forces judges to have to try to unring the bell, an impossible task. Moreover, in some cases, it probably encourages prosecutors to offer less favorable bargains . . . .

But what's worse is the idea that the Supreme Court acts as some super-duper giver of detailed criminal procedure rules that have no real home in the Constitution. Until recently, the metastasis of Strickland was limited to a fly-specking of counsel's performance at trial and in counseling guilty pleas. Now it treats American criminals worse than foreign ones (Padilla), and it extends to post-conviction relief.

Left unsaid, of course, is the effect on victims. (And since the Court is going into extra-constitutional territory, victims are a consideration.) Imagine having to testify at a trial (with the attendant risks, difficulty etc.) only to have years later, the result of a fair trial overturned.

Kennedy and the reconstituted Gang of Four have no business criticizing the Ninth Circuit. They just put the limits to their lawlessness at a different point. But lawlessness is lawlessness. Judge Reinhardt is worthy of more respect than this crowd.

The simple solution seems to be for the judge to get on record at some time before trial that the defendant was informed by the defense attorney of any plea bargain (e.g., at a pretrial conference). If the bargain (details need not be disclosed) is rejected on the record, it would be difficult for the defendant to successfully claim error.

Put the deal on the record or have a place for the Defendant sign an acknowledgment of receipt of the offer. It saves a lot of grief and stops the fight about whether a preliminary overture was actually an offer.

Yes, the prosecutor in Frye could have protected himself. However, the prosecutor in Cooper could not. Cooper's attorney's advice on whether to take the offer and the applicable law was completely shielded by privilege.

In some cases, I have to wonder if the allegedly ineffective lawyer is not just falling on his sword and falsely staining his own reputation to save his former client. In capital cases, particularly, these suspicions run strong. The issue may come up 10 years later, and there is little danger to a lawyer who has long since moved on to a new phase of his career.

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