The  facile quote comes from Stephanos Bibas, a University of California law professor:

In his article in The California Law Review, Professor Bibas wrote that plea bargaining is a market that requires supervision. “It is astonishing,” he wrote, “that a $100 credit card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment.”

That’s certainly true, but provides absolutely no guidance for the court in fashioning a rule or remedy, and therein lies the big issue in Lafler v. Cooper, to be argued before the Supreme Court.  Cooper and its companion case, Missouri v. Frye, involve bad plea bargain advice that prevented the defendants from copping out, to their detriment.

As Adam Liptak puts it:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

You know how juries are always rational and predictable, so no problem going to trial.  Except Cooper was convicted and sentenced to 15 to 30, instead of the 4 to 7 he could have had.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

The cases involves two issues, one that doesn’t seem much of a stretch and another that presents a very significant problem.  The first is whether bad plea bargain advice falls within Strickland at all, since the guarantee is effective assistance at trial, not at plea.  The argument is that the second prong, prejudice, can’t be met since no defendant is guaranteed a plea offer anyway.

Last year, 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

The courts below had no problem holding that competence applies to all critical stages, and the Padilla v. Kentucky certainly provided strong support for the proposition. 

A brief from New York University’s Center on the Administration of Criminal Law urged the justices to consider what it called “the inherently coercive and asymmetric confrontation between prosecutor and defendant,” one in which the assistance of a competent defense lawyer is vital. More than half of federal offenders sentenced in 2009 had not completed high school, the brief said; only 5 percent had completed college.

Without the lawyer doing his job of advising a defendant properly as to the efficacy of a plea bargain, most defendants will be screwed.  It’s no stretch to argue that prejudice is suffered when a four year deal is lost to 15 years because the lawyer blew it.  But the much harder issue is what to do about it.

The defense argues that the remedy is to return the defendants to the status quo ante, allowing them the opportunity to accept the plea bargain they were denied by their lawyers ineffective assistance.  On its face, a very reasonable outcome.

The prosecution, however, raises the perpetual specter of lawyer and criminal colluding to get a free ride at trial.

A federal judge in Mr. Cooper’s case tried to roll back the clock, requiring officials to offer him the initial deal or release him.

That allowed Mr. Cooper, convicted of shooting a woman, “to play with house money,” Bill Schuette, the Michigan attorney general, told the justices in a brief in Lafler v. Cooper. Mr. Cooper could take his chances at trial and, if he lost, insist on the rejected plea deal, he said.

The fear is that after a full jury trial, and conviction, the lawyer says, “Oops, I forgot to let the defendant know about the plea offer of 17 minutes incarceration. My bad, judge.”  Since there no official set of ears listening in on the communication between lawyer and client, there’s no one to dispute neglected or horribly wrong advice.  Or, in the case of a lawyer and client deciding to beat the system, collusion to give defendant a trial without risk. 

At SCOTUSBlog, the problem is summed up:

The states and their amici suggest that adoption of the lower courts’ approach will discourage pleas, encourage collusion between defendants and their counsel, and open the floodgates to post-conviction or post-guilty plea appeals and habeas petitions.  The defendants and their amici argue that the parade of horribles is unrealistic, that collusion is unlikely given legal ethics rules, and that effective counsel is crucial to the integrity of the plea process, particularly given that prosecutors possess significantly more information than defendants during plea negotiations. (Emphasis added.)

Will “ethical rules” eliminate the collusion problem?  It’s certainly done wonders for deceptive internet marketing.  My take is that while the problem raised by the prosecution with what would otherwise clearly be the appropriate remedy, the court cannot systemically rule that criminal defense lawyers, as opposed to prosecutors or any other discrete group of lawyers, are so inclined to violate their ethical obligations that a rule is fashioned that presumes unethical conduct.  Unless they court is prepared to do the same for prosecutors when it comes to Brady.

Many of the problems can be cured by formalizing the plea bargaining process, such as putting offers in writing or on the record in the defendant’s presence. Of course, this wouldn’t stop the hypothetical offers (Prosecutor: if I were to offer your client 1 to 3, would he take it?) or affect the negotiation process, at least it would prevent what happened to Frye, where the defendant never knew an offer was made,

As for bad advice by the criminal defense lawyer, if the court comes up with a solution to that, we can all rejoice.  With the bar as low as it is, and the general concern being far more about whether Mr. Green will show up than whether a client is competently advised, the problem goes far beyond the horribles of plea bargains. 

And lest anyone note that it’s not just defense lawyers, it’s most assuredly not.  But since the Supreme Court is overwhelmingly protective of prosecutors, so that they shouldn’t get so nervous when they violate defendant’s constitutional rights that they forget to be brave with heinous murderers, it wouldn’t hurt to give a small fraction of their belief in the integrity of lawyers to the guys and gals at the other table in the well.  It’s not the defendants fault that lawyers aren’t always what they should be.  While it’s a sound argument that they should suffer for their deeds, they shouldn’t suffer their lawyer’s incompetence.

Update: It seems like oral argument  didn’t go too well for the defendants.

Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart “is simply unworkable,” said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues.

And it gets worse.

Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it’s easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.

But the negotiations are going on before trial, and by “not accepting it he has a chance of going scot-free” if a jury finds him not guilty, Chief Justice John Roberts said.

After conviction and sentencing, Roberts said, “presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not” on appeal?

Of course, if it’s in writing, or in open court, well then we wouldn’t have to guess. But then, I wasn’t arguing the case, now was I?