SCOTUS Takes New Cases on Right to Effective Assistance in Plea Bargaining

Yesterday, the Supreme Court granted review in two new cases on the right to the effective assistance of counsel in the plea-bargaining setting.  I’ll comment briefly today on Missouri v. Frye (No. 10-444), and leave Lafler v. Cooper (No. 10-209) for tomorrow.

Although Frye presents an unusual set of facts, the petitioner’s argument raises quite fundamental and broadly important questions about the nature of the right to effective assistance.  In brief, the state charged Frye with a felony, but offered to dismiss the felony charge if Frye would plead guilty to a misdemeanor.  Frye’s lawyer never communicated this option to Frye, and the offer eventually expired.  Frye then pled guilty to the felony charge without the benefit of a deal and was sentenced to three years in prison — presumably a much longer sentence than would have been possible if he had taken the misdemeanor deal.

Sounds to me like this rather egregious mistake by counsel easily satisfies the familiar performance and prejudice prongs of the Strickland test, and an appellate court in Missouri so held.

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Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct

In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction.  Ineffective assistance law should reflect this reality.  Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction.  Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer.  Continue reading “Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct”

Upcoming SCOTUS Oral Arguments

With the new term Supreme Court term kicking off next week, I’ve been previewing the upcoming oral arguments.  Here are the cases I am especially interested in following:

United States v. Abbott (09-479) & Gould v. United States (09-7073): is a defendant eligible for the mandatory minimum of 18 U.S.C. § 924(c) when he is also subject to a greater mandatory minimum for a different count of conviction charging a different offense?

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Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel

Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel.  Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction.  Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.

Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice.  In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.

In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.   Continue reading “Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel”