Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.
The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence." The Supreme Court has interpreted that right to include the effective assistance of counsel. However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice." The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.
The purpose of the Sixth Amendment is to guarantee a fair trial. If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain? That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to. We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012). Four justices agreed with us, but five did not.
Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009). Williams was a murderer, but there is no discussion of the facts in the opinion. Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."
I think he was right. In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.
The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence." The Supreme Court has interpreted that right to include the effective assistance of counsel. However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice." The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.
The purpose of the Sixth Amendment is to guarantee a fair trial. If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain? That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to. We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012). Four justices agreed with us, but five did not.
Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009). Williams was a murderer, but there is no discussion of the facts in the opinion. Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."
I think he was right. In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.
Lafler, coming as it did on habeas, is a bad joke. It is indefensible in terms of analyzing what the Constitution actually protects/guarantees and deriving a legal rule therefrom.
IIRC, at oral argument, Elana Kagan posited that the prejudice was that everyone else gets good deals. Of course, that sounds right--but in terms of what the Constitution actually protects, it couldn't be more wrong. The structure of our Constitution is being cast aside (and not just from the standpoint of the silly, pro-criminal, pro-prosecution label) in favor of what the Justices think is a good way to run the show.
The Constitution protects certain things, and the things that it protects should be zealously protected by the courts. Enshrining things as "constitutional rights" and then subjecting them to watered down balancing tests or other things that take the sting out of the import of that "rights" conclusion, undermines the protections that we all have.
An example of this perniciousness can be found in a recent decision upholding a finding of qualified immunity for a police officer who killed an innocent person. Long and short, the cops' conduct would have put any reasonable person in fear for his safety, and thus the innocent person's actions were entirely unimpeachable. What did the district court say--that the tragedy occurred because the innocent man answered a no-announcement loud and persistent banging on his door armed with a gun. Something he had every right to do under our system of law.
Perhaps the District Judge is just a statist hack. But perhaps, after having been steeped in the balancing tests, etc. etc., he just looked at the interests of the cops and the interest of the innocent man and balanced them.
Who knows---but no one with a rights-based perspective would ever write such a thing. It displays an attitude wholly divorced from how we should approach these sorts of things. Just like Kagan's comment.
Lafler was supposed to be a big deal. Conceptually it is -- it extends the right to effective counsel to a stage of the process (plea bargaining) the Constitution does not so much as mention. But, we were told at the time, it was ALSO going to be a big deal in the real world, because the existing practice -- where defendants are hustled or extorted into unjust deals -- will now be considerably curbed or stopped by the addition of astute defense lawyers who will stand up to these prosecutorial thugs.
In fact, Lafler has had essentially no effect. Bargains occur at the same rate as before, and bargaining practices are the same as they were before.
Q: Why did the prediction go wrong?
A: Because its premise was wrong.
The reason such a huge number of defendants take deals has nothing to do with (mythical) prosecutorial extortion or stupid (or drunk or addicted or depressed) defense lawyers.
The reason is that the defendant is ice cold on the evidence. He knows it and his lawyer knows it, and they figure, as any rational person would, that the best move is to get a deal that makes part (or sometimes much) of your crime spree disappear. Hence a lesser sentence than your conduct earned (and would get) if you went to trial. All-in-all, a very nice outcome for the criminal compared to what a trial would have brought.
The added bonus is that, after all this quietly goes down in court, much to the defendant's benefit, his slick NACDL lawyer can still go outside on the courthouse steps and thunder to the press about how Mr. Nicey really had a super defense, but was bullied out of trying it by the blood-lusting, crypto-Nazi prosecutor.
This is how things actually happen. I know. I was there for years.
Kent, I do not take issue with your assertion that Judge Gorsuch's work in Williams v. Jones was in the mainstream, but I do take issue with your assertion that the "purpose of the Sixth Amendment is to guarantee a fair trial." I take issue with that assertion because it does not fully capture the full text, and also because it could provide the foundation for all sorts of interpretive mischief (e.g., can I reasonably argue the Sixth Amendment should give me a right, in the name of "fairness," to inform the jury of sentencing consequences? Is the answer to this question going to turn on what a particular judge thinks "fair"?).
For Lafler purposes, I think the text of the Sixth Amendment and subsequent interpretations about when the right attaches AND "ineffectiveness" made Lafler the right result UNLESS one is prepared to assert that a lawyer cannot be constitutionally ineffective except at trial. I surmise you disagree, but I always find it interesting and notable when folks stop discussing the text of a constitutional provision and instead talk up its purported "purpose."
Reading the text of the Sixth Amendment, I do think it is about fair trials. Of course, a lawyer can botch things earlier, such as by failure to prepare, but that all goes into the fairness of the trial.
Kent --
Correct. And, our friend Doug to the contrary, the sentence is not determined at the trial. It is determined AFTER the trial, and only then, of course, if there is a conviction.
Now Doug may argue that the sentence is in effect determined by the mandatory minimum that accompanies the charge, but that is incorrect for several reasons.
First, the charge is determined principally by the defendant's provable behavior, not by the prosecutor's whim.
Second, no MM applies if the defendant is acquitted (see the first point about provable behavior) or there's a mistrial.
Third, the defendant might be eligible for a "safety valve." Very many of them are.
Fourth, the government can get him below the MM in light of substantial assistance. There are quite a few in that category, too.
Fifth, even if all that fails, the court can hold the MM an Eighth Amendment violation.
It's just amazing how sentencing turns out always to be the prosecutor's fault or the legislature's fault -- but the crime had nothing to do with it.
Finally, on the subject that got this thread started, Durbin's point is not merely mistaken but preposterous. If to be aligned with a four-Justice dissent is to be out of the mainstream, I take it that the four Justices in dissent in Heller, Hobby Lobby and Citizens United are all, according to Durbin, out of the mainstream.
As I say, it's preposterous. That someone this deluded has a vote on who sits on the Supreme Court is quite depressing.
Kent: By saying 6th A is only about ensuring a fair trial, are you meaning to suggest that a defendant does not/should not have a constitutional right to counsel (let alone effective counsel) at a sentencing proceeding after a fair trial?
Bill: I think you missed my point and my concern with an approach to the 6th A that is defined and interpreted in service to the "purpose of ... a fair trial." My point and concern is that "fair" is an especially slippery concept when thinking about trials. Is it "fair" if there are three prosecutors and only one defense attorney? Is it "fair" to prevent a defense attorney from discussing before the jury sentencing consequences or prior plea discussions? Is it "fair" to present certain types of hearsay evidence? Is it "fair" to give an "Allen charge"? And on and on and on (and, of course, every defendant is inclined and often eager to assert a trial that produces a conviction was not "fair").
I think it much sounder to stick with the text, which says "In all criminal PROSECUTIONS, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." This indicates a right to [effective] counsel from the start of a prosecution until its conclusion. I put "effective" in brackets because I think it not plain that the text requires that counsel be effective (or be provided by the government). But once it is settled that the counsel right includes a notion of effectiveness, I do not see in the text of the Sixth Amendment any sound basis for deciding counsel only needs to be effective at trials but not during other parts of "criminal prosecutions."
"My point and concern is that 'fair' is an especially slippery concept when thinking about trials."
Then why is "fairness" the main thing by far I keep hearing about from defense counsel when it comes to either charging, trial, or punishment? These guys wouldn't be, ummmmm, SLIPPERY, would they?
Sorry. The devil made me do it.
"Is it 'fair' if there are three prosecutors and only one defense attorney?"
Depends on who the three are and who the one is. I know enough lawyers by now to be able easily to envision instances is which three prosecutors and one defense lawyer would indeed be unfair -- to the government.
P.S. Have you ever heard of a trial where there were three prosecutors and one defense lawyer?
"Is it 'fair' to prevent a defense attorney from discussing before the jury sentencing consequences or prior plea discussions?"
Absolutely, because that would invite the jurors to return a verdict based on something other than facts about the alleged offense at issue.
"Is it 'fair' to present certain types of hearsay evidence?"
Yes. The hearsay rule and its exceptions have a very long historical pedigree.
"Is it 'fair' to give an 'Allen charge'?"
Sure. Again, this has been extensively discussed by the courts, with fairness foremost (although not alone) among the concerns.
More broadly: Let's assume arguendo that your view of the breadth of the Sixth Amendment is correct. That still does not answer -- indeed, it does not purport to answer -- the five arguments I set out in my previous comment.
Finally, and again assuming arguendo that your view of the Sixth Amendment is correct, the REMEDY suggested by Kent and the Lafler dissenters (that the defendant received the constitutionally-contemplated fair trial) obviates any problem in the stillborn and extra-constitutional goings-on in earlier plea bargaining. That he got a harsher sentence after those negotiations failed to result in a deal is hardly to say that he did not get a FAIR sentence in any sense at all. Indeed, if memory serves, the Lafler court itself did not find or even suggest that the sentence was unfair.
Accordingly, whether the Sixth Amendment right goes only to trial, or beyond that, Mr. Lafler had no complaint -- no complaint, that is, other than that he didn't get a sentencing windfall made even theoretically possible, not by the facts of his case, or his culpability, or the actual or potential statutory sentence, but ONLY because the economics of law have made plea bargaining common.
That might constitute a sympathetic claim of some sort, but a claim of unconstitutional treatment it is not.
I agree, Bill, that it is often defense attorneys who invoke fairness in all sorts of ways, which is exactly why I worry about Kent's defining the Sixth Amendment around this "purpose." You have answers to my fairness queries, but fairness is so often in the eye of the beholder. And that is why, also, discussion of whether Lafler got a fair sentence seem to entirely miss the mark. The Sixth Amendment says nothing about "fairness" and it is not a concept that I think serves anyone well to make the focal point of Sixth Amendment analysis.
To follow this along, and to see if you really think a fair trial fixes all, do you think a legislature could properly preclude a defendant from getting advice from a lawyer during plea negotiations? (Perhaps the legislature thinks a trial would be and could be more "fair" if a defense lawyer spends his limited time focused on preparing for trial rather than trying to cut deals.). If all that matters is a fair trial, there would seem to be no problems with precluding lawyer involvement in all plea activity. Would your view of the Sixth Amendment all precluding defense lawyers from any involvement in plea discussions?
Of course, prosecutors can refuse to engage in plea bargaining. But if the state is going to be making plea discussions part of "criminal prosecutions" the text of the Sixth Amendment indicates the right to counsel attaches to this stage.
That someone this deluded has a vote on who sits on the Supreme Court is quite depressing.
Bingo. There are a lot of grandstanding windbags involved in this process, and the last 2 months has been their Super Bowl. Ridiculous.
"In our evaluation of that conclusion, we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial."
That's from Cronic. So, Doug, your comments should really have to deal with that quote and your extended discussion about "fairness" (untethered as it is to any context) has the same problem as the Kagan approach. Things can be unfair, in a cosmic sense, but not problematic in a system of well-defined rights.
I cannot help but note that your hypo about banning defense counsel involvement in plea deals is surpassing silly. First, how would the prosecutor even do it, given bar rules? Second, you should go review when the Sixth Amendment right attaches.
And your comment about the word fair not appearing in the Sixth Amendment is just rich. You're trying to expand the Sixth Amendment to include rejection of a plea deal (the apotheosis of the "it's not fair, therefore a violation of the Constitution school of jurisprudence) and you're quibbling about that? Seriously?
"Fairness" has a meaning informed by centuries of practice.
"By saying 6th A is only about ensuring a fair trial, are you meaning to suggest that a defendant does not/should not have a constitutional right to counsel (let alone effective counsel) at a sentencing proceeding after a fair trial?"
Of course I am not suggesting any such thing. You are giving "trial" a narrower and more technical meaning than I was using it in order to twist what I was saying.
The question is whether a defendant has been "prejudiced" within the meaning of Strickland if he receives a fair trial notwithstanding any deficiencies in pretrial representation.
federalist: I am not trying to "expand" 6th A, just trying to faithfully apply its text. And it's text does not reference fairness; the text seems directed toward delineating procedural rights for an accused individual subject to criminal government prosecution rather than just toward ensuring a particular result in the form of a "fair trial." That is the main point I am trying to make in this thread.
I agree it would be silly (and unfair as we now understand that term) for a state to be eager to bar lawyer involvement in plea discussion (or sentencing or appeals). But an approach to the 6th A driven primarily by a focus on a "fair trial" would seem to permit restricting lawyer involvement in all sorts of parts of a prosecution that are not directly connected to the trial.
Kent: sorry if you thought I was trying to twist what you were saying. I am just talking through here my concerns with a "fair trial" focus for the right to counsel. I now better understand that you meant this in context of the prejudice prong of Strickland. (For the record, I have always been troubled by that prong of Strickland.)
I am troubled by that prong of Strickland also. Given how routinely ineffective assistance is claimed, it is clearly not screening out enough claims. In the capital arena, particularly, it is a rare case where ineffective assistance is not claimed. It should be the other way around. Very few attorneys really do such a dismal job as to warrant being accused of ineffective assistance, as that term is properly understood.
Perhaps we should replace the prejudice prong with a requirement to show a substantial claim of miscarriage of justice as defined in Sawyer and Schlup. (Not as high a standard of proof as in those cases, just the same definition of what is a "miscarriage of justice.")
Well, Doug, Cronic says what it says, and it's surpassing silly to argue that the text of the Sixth Amendment requires the result in Lafler.
I am not making a full-throated argument, federalist, that the text of the Sixth Amendment REQUIRES the result in Lafler. I am just making the claim that the text of the Sixth Amendment does not, in my view, support interpreting the right to counsel is nothing more than a means to help ensure a defendant has a "fair trial." Both at the founding and especially today, "criminal prosecutions" involve so much more than just a trial.
You are right that in Cronic, the Justices articulated the right in such terms, but I continue to think of that framing as deeply misguided. Candidly, as a sometimes defense lawyer who have never actually been a part of a formal trial, perhaps I am showing a kind of real-world lawyering bias that comes from knowing that 98%+ of all criminal prosecutions now are concluded with a "trial." That reality leads me to fear that any approach to the Sixth A that is (atextually) focused only or principally on a "fair trial" will be functionally myopic with respect to 49 out of every 50 "criminal prosecutions."
What has always bothered me about the IAC/plea bargaining cases is more logic-based than legal.
An underpinning of the law is that a person who claims to have been wronged may be entitled to a legal remedy, but that remedy should bear some direct relationship to the wrong that was suffered. In the plea bargaining context, if the trial was fair despite whatever occurred beforehand, then the remedy is . . . what?
Is it a new trial? That's nonsensical. Is it forcing the prosecution to re-offer a pretrial plea bargain, post-trial and post-appeal? That's a serious separation of powers violation and a gigantic waste of public resources. These extensions of Strickland are highly problematic.
The Court's more recent cases interpreting the text of the 6A's Counsel Clause ["accused" and "all criminal prosecutions"], completely undermine any suggestion that that clause was only intended to afford a defendant a "fair trial." (See Rothgery v. Gillespie County, 554 U.S. 191, 194, 213 (2008).)
Clearly, a defendant becomes an "accused" before trial and a "criminal prosecution" begins before trial.
I do, however, believe that the 6A's Confrontation Clause is designed to ensure a "fair trial" by requiring that testimonial evidence against a defendant be subjected to confrontation. And the 6A's Compulsory Process Clause also has a "fair trial" as its purpose.
The remedy problem is indeed a thorny one.
How can you order specific performance of a contract when the consideration that one party bargained for no longer exists?
You offer to buy my car for $X, and I decline based on the advice of my cousin, whom I mistakenly think knows a lot about the value of cars. Later, I realize he doesn't and I want the deal back, but, by the way, I have wrecked the car in the meantime.
Wrapping up the case, now, without a trial is the consideration the prosecution bargains for. Once the defendant, on the advice of his lawyer, goes through with the trial there is no getting that back.