The United States Supreme Court has granted cert in a Ninth Circuit case, Arave v. Hoffman, also found  here and  here and here, on the remedy for ineffective assistance of counsel (IAC) during plea negotiations preceding a trial, where the defendant lost.  The salient facts are that defense counsel ill-advised the defendant to reject a plea offer and go to trial.  He did.  He lost.  What to do about it?

Before getting the heart of the issue, it should be noted that the error made by the lawyer was substantive.  He advised the defendant that he could rely on Ninth Circuit precedent which would result in the sentence after conviction being held unconstitutional.  Counsel had neglected to consider a split of decision on the issue, and his reliance on favorable precedent in advising the defendant to the exclusion of unfavorable precedent created the IAC problem.  I point this out to note that the IAC claim is real and substantive, not some made-up story that existed only in the defendant’s mind.

While the facts of the Arave case are complicated, they really aren’t important in addressing the big issue here.  The positions lay out fairly clearly.  On the one side, you have the position taken by Crime and Consequences :

A plea bargain that gets a criminal off with less than he deserves is a windfall. The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

On the other side, you have the position taken by Gideon :

Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.

So should IAC at the plea stage, followed by a fair trial where the defendant lost, give the defendant a second bite at the plea offer, now looking particularly palatable in hindsight?

Gideon definitely wins the point.  To denigrate a critical stage of the prosecution, the plea-bargaining phase, by calling it a “windfall” demonstrates the fallacy of the position.  First, if the plea offer reflected a result that the prosecution believed to be sufficiently satisfactory to address the offense, then it cannot be described as a windfall, but rather a mutually beneficial outcome.  The same hindsight issue exists for the prosecution as well as the defense, since neither side knows what will happen at trial.  It reflects a calculated decision by the prosecution, covering not only the risk of acquittal but the minimum level of punishment necessary to satisfy its duty to the people. 

As Gideon correctly notes, a defendant is entitled to effective assistance of counsel at all critical stages of a criminal proceedings.  Because the subsequent step is completed, and the outcome already known, doesn’t alleviate the problem.  If the defendant is entitled to effective assistance, then there must be a remedy when his assistance is ineffective.  Not only must there be a remedy, but the remedy must be meaningful or the right is rendered a farce.  That’s how “rights” work.

Moreover, C&C distinguishes the outcome in terms of “injustice”.  Injustice is subjective, and they obviously have no problem with a defendant receiving as severe a sentence as possible.  But politics doesn’t dictate what constitutes justice or injustice.  Indeed, one may well question why the sentence offered in the plea bargain was deemed sufficient at that point, but then, because a defendant exercised his constitutional right to trial, he should be punished far more severely.  Is it justice to pay a price for the exercise of the right to trial as provided our Constitution? 

If we looked at the scenario from the opposite direction of Crime & Consequences, where the defendant is given a reduced but sufficient sentence after trial, would that constitute an injustice?   The underlying assumption by Crime & Consequences is that justice is only served by the meting out of increasingly severe sentences.  They never met a death penalty they didn’t like.  This isn’t justice.  This is just plain old politics.  Anything short of death is a gift, according to C&C, and the defendant doesn’t deserve any gifts.

On a final note, the element of the C&C analysis relating to the defendant’s having received a “fair trial” subsequent to the IAC certainly gives one the impression that the defendant has gotten all the “fairness” he deserves. 

Despite the surface appeal of this point, the issue stops dead in its tracks at the point where the foul occurred.  Like a timeout called a split second before the field goal is made, the kicking team doesn’t get to keep the 3 points.  While certainly not a game, there must be rules to assure that a system of justice fulfills its requirements at each and every stage.  If the defendant was not provided effective assistance at the plea stage, then that’s where the play stops and the penalty is assessed at the point of the foul.  The points come off the board.  That’s justice.