Ineffective at Plea? Then What?

Via Doug Berman, the Williams v. Jones habeas decision out of the 10th Circuit raises a bunch of interesting issues about ineffective assistance of counsel, as well as the cure for the disease.  The set up is that Michael Joe Williams, charged in Oklahoma with first degree murder, is offered a 10 year sentence on a plea to second degree murder before trial. 

Williams wants to cut his losses, but his lawyer, believing Williams to be innocent, refuses to be party to the deal.  The lawyer tells Williams that he will withdraw from the case if Williams wants to pursue the plea.  Williams goes to trial, loses and is sentenced to life without parole.

There was no question as far as either side was concerned that Williams’ lawyer was ineffective, which may come as a surprise for those of you SCOTUS wonks who are thinking to themselves, but what about the Arave v. Hoffman case, with cert granted in 2007??  I know!  Me too!  For those of you who are more wank than wonk, that case was about the defendant being ill-advised by counsel to reject a plea based upon a mistaken interpretation of precedent, who then went to trial and lost.  Unfortunately, the defendant withdrew his IAC claim and it won’t be coming to the Supreme Court.  Bummer.

Here, there was no discussion of the integrity of the attorney’s position, or the potential that the defendant may in fact have been innocent of murder.  The court goes to great length to note that the only question before it is remedy for a conceded IAC claim, even though the IAC claim itself raises some fascinating ethical challenges. 

I’ve addressed these issues in a variety of cases in the past, with the lawyer put to the test of standing idly by while an innocent person lies under oath to admit commission of a crime just to get the deal, and they remain as vexing as ever.  Ultimately, the decision to accept a plea offer belongs exclusively to the defendant, regardless of what the lawyer thinks.  While we are duty-bound to advice the client, as fully and honestly as humanly possible, and without resort to manipulating the client to reach the conclusion we believe to be correct, the decision must always rest with the client, painful as that may be. 

Others, of course, have disagreed with me, and believe that they, as counsel, should exercise a level of control to save the client from themselves.  While conceding that the decision is the defendants by law and ethical proscription, they feel that there is a moral duty to steer the client toward the decision they believe best.  As it’s the defendant, not the lawyer, who lives with the consequences of this crucial decision, I cannot agree that anything beyond the fullest and fairest explanation of the consequences is an appropriate exercise of our persuasive powers.  It’s not our life, and not our choice.

The 9th Circuit, however, limited its decision to the question of whether the remedy provided for the ineffective assistance, reducing the sentence from life without parole to the lowest possible sentence available for the crime for which the defendant stood convicted, life with parole, was proper.  It said no.


In fashioning the appropriate remedy for ineffective assistance of counsel, the remedy “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” We think it axiomatic that the remedy for a properly presented constitutional violation should not be frustrated by the sentencing options available under state law, but rather should be consistent with federal law.

The deficient performance was counsel’s advice concerning the plea agreement—advising Mr. Williams he would be committing perjury by accepting the plea offer and insisting that Mr. Williams proceed to trial or find new counsel if he wanted to accept it. As the OCCA no doubt recognized, the prejudice Mr. Williams identified was that, had he been adequately counseled, there is a reasonable probability that he would have accepted the plea offer and limited his exposure to ten years.

The court held that a constitutional violation mandated a constitutional remedy, in this case returning the defendant to the status he would have enjoyed had the violation not occurred. 

In dissent, Judge Neil Gorsuch took the position that the defendant, having received a fair trial, is screwed (and deservedly so).


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.  The majority says that counsel’s deficient performance in the plea bargain process denied Mr. Williams a lesser second degree murder conviction, and that this justifies voiding the result of Mr. Williams’s fair trial.  But the due process clauses of the Constitution’s Fifth and Fourteenth Amendments do not encompass a right to receive or accept plea offers.  As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain.
This position, echoing that of  Kent Scheidegger  at Crime & Consequences, relegates the right to effective assistance of counsel subservient to the jury verdict.  After a fair trial, there’s no going back, no matter what.  Given how we pretend that this is all a search for justice, as opposed to a system designed to move people into prison as efficiently as possible, there’s a certain sense to this position.

But Judge Gorsuch, and obviously Kent Scheidegger, are misguided.  Our criminal justice system makes sausage, not objects of art.  The right to effective assistance of counsel is one of the few constants in the system, that the defendant be provided competent counsel throughout so that he both knows and appreciates the sausage-making process, and doesn’t find himself unnecessarily in the grinder.  To the extent this is viewed as a windfall, an easy and undeserved way out of his dilemma by the backdoor, it’s time to grow up.  There’s no magic in a fair jury trial, anymore than a plea bargain is a gift.  If it makes one feel better, consider the trial penalty, given that the offer of ten years to Williams obviously was deemed sufficient by someone in the prosecutor’s office who knew the allegations against him.

Without a doubt, the majority (even though it;’s a per curiam opinion) got it right.  It’s too bad, however, that the court took for granted whether the attorney’s position, that he would not allow his client to perjure himself by admitting guilt to a murder he didn’t commit, was ineffective.  But at least they got the remedy right.

Discover more from Simple Justice

Subscribe to get the latest posts sent to your email.

5 thoughts on “Ineffective at Plea? Then What?”

  1. Tyson Stanek

    I’m a little confused by this case, because an ethical solution did exist for this problem: the Alford plea. Basically, it’s a statement by the defendant that he is pleading guilty because it is in his best interest to do so, but it is in fact a denial of the allegations. It requires the judge to find a factual basis sufficient for a finding of guilt (similar to a nolo), and it’s frowned upon by judges and prosecutors, but sometimes it’s the best way to handle a difficult situation. I wonder why the attorney didn’t use that in this case…

  2. SHG

    Many jurisdictions and prosecutors don’t permit Alford pleas, a condition of a plea offer being acceptance of responsibility and admission of guilt.   Some don’t permit them at all, while others will agree only under unique circumstances.  Defendants do not have a right to cop to an Alford plea, and the circumstances of this case suggest that it wasn’t available to the defendant.

    And thanks for your explanation of an Alford plea, for the one or two readers who might not be familiar with it.

  3. Barry

    The reason there was no Alford plea is because the state prosecutor’s offer expressly precluded it. According to the record (whch included testimony from the evidentiary hearing ordered by the OCCA) he would not agree to an Alford plea.

  5. John R.

    This one hits home, cause I had a client who wanted to plead guilty and I said she’d have to get another lawyer to do that. She did, and took the plea.

    And it WAS an Alford plea.

    It was the right decision under the circumstances, I think, but it was still important to me not to be a party to it.

    There was a lot of other stuff going on – fabricated evidence, perjury, police conspiracy. Couldn’t live with knuckling under to that kind of thing, even on an Alford plea.

    It’s still going on, with all the post-conviction procedures. Gotta do it.

Comments are closed.