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The U.S. Supreme Court has potentially changed the way defense attorneys handle plea bargains. In a pair of cases out of Missouri and Michigan, the Court has ruled that the Sixth Amendment right to effective counsel in criminal proceedings applies to plea offers that lapse or are rejected.
Justice Kennedy, writing for the majority, also wrote that plea bargain counsel has a duty to communicate all formal and favorable prosecution offers to the accused. If he or she does not, the defendant may be able to appeal any subsequent punishment.
The two cases -- Missouri v. Frye and Lafler v. Cooper -- deal with slightly different yet connected issues. In Frye, counsel failed to communicate a highly beneficial offer to the defendant. He was then convicted and sentenced to three years behind bars. The defendant appealed his conviction, arguing that he had ineffective plea bargain counsel.
Five of the nine justices agreed that such a claim is possible. But in order to be successful, the defendant must show that there is a reasonable probability that he would have accepted the deal had he known about it, and that the plea would have been presented to and accepted by the court.
Cooper differs in that the defendant rejected a plea offer on the advice of counsel. This, too, can lead to a successful ineffective assistance of counsel claim. However, successful claims require a showing that prosecutors would have presented the deal to the court; that the court would have accepted the terms of the deal; and that the offer's terms would have been less severe than the sentence imposed.
These rulings have the potential to turn the criminal justice system on its head. Approximately 95% of all criminal cases end in plea bargains, according to Reuters. Imagine how difficult it would be if everyone started claiming ineffective assistance of plea bargain counsel.