The United States Supreme Court is scheduled to hear arguments on October 31 2011 in the case of Lafler v. Cooper and Missouri v. Frye, that raises the issue of whether an a criminal defense attorney in Massachusetts, or any other state, can provide ineffective assistance of counsel during a plea negotiation when a defendant later receives a fair trial.

In the case of Cooper, he received ineffective assistance of counsel because his attorney told him that he could not be convicted of assault with the intent to murder, because the shots he fired were below the victim’s waist. Based on this advice, Cooper claims that he went to trial and received a sentence eight years greater than the sentence he would have received had he accepted the original plea offer and was given proper advice as to the elements of the offense. To read the brief of Defendant Cooper you can click here.

In the Frye case, the defendant claimed he received ineffective assistance of counsel because his attorney did not communicate a plea offer to him which expired; the defendant received a harsher sentence when he entered an open plea in court. Under the proposed plea offer, that was not communicated, the prosecutor offered to allow the defendant to plea to a misdemeanor with a ninety day jail sentence recommendation. The defendant ultimately received three years as part of an open plea but claimed prejudice in being deprived the opportunity to plea to the misdemeanor offense as a result of counsel ineffective assistance in not communicating the offer. You can read the filings in the Frye case by clicking here.

The State in both cases, argued that there can be no ineffective assistance under the case of Strickland v. Washington, 466 U.S. 668 (1984) which set forth the standard for determining Sixth Amendment ineffective assistance of counsel claims. The State argued that the prejudice element of the Strickland test cannot be satisfied because the defendant received a fair trial in the Cooper case and could have went to trial in the case of Frye. The State argued that the conviction is not rendered unreliable and the defendant was not deprived of asserting any available defense to constitute prejudice under the Strickland case. Further, the State argued that the Court cannot fashion an appropriate remedy because the State had the right to withdraw or modify the offer. Accordingly, the State argued that creating a remedy would violate separation of powers by conferring on the courts the executive function of crafting plea offers.

The defendant’s argued that consistent with the United States Supreme Court’s Padilla v. Kentucky, 130 S.Ct. 1473 (2010) decision, courts are capable of fashioning a remedy for ineffective assistance in not communicating a plea. As a Massachusetts criminal lawyer, I would expect the Supreme Court to rule that courts can entertain ineffectiveness claims for plea agreements. The State is taking the narrow view of the Sixth Amendment as guaranteeing a defendant the right to effective assistance of counsel only during the trial stage; however the United States Supreme Court has made clear that the Sixth Amendment right to counsel applies at every stage during the process of a criminal case. Further, the Court recently held in Padilla that counsel is ineffective in not communicating the immigration consequences of a plea offer; accordingly, these cases are a natural extension of that doctrine that the duty to provided effective assistance of counsel encompasses the process of negotiating a plea agreement and properly communicating the implication of the plea to the defendant. I would expect a close vote in the case but I would not anticipate the court taking a bright line position but would allow the issue to be resolved by trial judges.