The New York Times has an  editorial today about the Cooper and Frye cases,  argued yesterday to the Supreme Court.

Defendants offered plea deals need effective counsel to ensure that their decisions are well founded and voluntary, not coerced. Under the Sixth Amendment, the Supreme Court said last year, a plea is legitimate only if a defendant has had assistance of counsel while considering it.

The state brought the case to the Supreme Court, arguing that Mr. Frye should serve the sentence he was given because he voluntarily pleaded guilty. It contends that since there is no right to a plea bargain, the lawyer’s failure to communicate the offer did not deprive Mr. Frye of any constitutional right. The Supreme Court should reject this bad analysis, which the Justice Department unwisely supports. The lawyer’s inexcusable failure to inform Mr. Frye of the plea offer affected the legal process and deprived him of a critical choice.

While the editorial lays blame on the government, and implores the Supremes to reject “this bad analysis,” it largely overlooks the most important factor in fulfilling the constitutional guarantee of effective assistance of counsel.  The lawyers representing Cooper and Frye sucked.

If the lawyers did their job adequately, there would be no issue to be argued, no debate as to whether courts should regulate the plea bargaining process.  Bear in mind, we’re talking about such minimal competence as to meet the criteria of Strickland v. Washington, a case that says sleeping lawyers are all the Constitution requires. And still, lawyers can’t manage to meet this bar.

In a comment to my analysis of the issues, an important point was made by Thomas Stephenson :

All this is interesting, but how do we regulate low-bid and court-appointed lawyers strong-arming their clients into taking the state’s first offer?

Without getting caught up in denials and details, Thomas’ question hits on a dirty little secret of criminal defense.  Many criminal defense lawyers take on cases with the intention from the outset of disposing of them as quickly as possible.  It’s awfully easy to persuade a defendant, someone who has put their life in a lawyer’s hands, to cop a plea. 

We can scare them. We can rationalize the choice. We can convince them to plead guilty.  And it’s done so that the fee is earned, the case is over and the lawyer can move on to the next fee as the defendant is shuffled into the pens, never to be heard from again.

The Cooper and Frye cases ask the question of what to do after the lawyer blows it.  The hard reality is that the law has never been capable of coming up with a cure for every wrong mankind can commit.  And despite rumors to the contrary, lawyers are included in mankind.  We love to hold ourselves out as saviors, heroes to the cause, champions of justice.  We are lying to ourselves and others when we fail to serve our clients.

How hard is it to inform a client of a plea offer?  There is no excuse, none, ever, to not fully and properly inform our clients of such things.  And then there’s the flip side, the selling out of clients to rid ourselves of work once the fee is in our pocket.  Honest and accurate assessment and advice is our obligation, yet we abuse the trust to get the client off our back.  And they never know about it, as we smile, emote, feel their pain and sell them out.

The point has been made in discussing legal fees, where a lawyer charges a fraction for representation of another lawyer.  Do the math.  How many hours does that fee cover?  Not enough to win the case? Then the lawyer plans to plead you out, and has no intention of fighting.  Many lawyers see a case as a quick plea.  That’s just not what they tell the defendant, because if they did, no one would hire them. The numbers don’t lie.

Regardless of what the Supreme Court rules in Cooper and Frye, or what they fail to rule in the case of a quick plea that sells out a defendant who never knew that he stood no chance, there is no reason for this issue to ever arise.  It exists because we, those of us who undertake to represent defendants in criminal cases, fail. 

The law can’t provide an adequate solution, but we can.  Work harder. Be honest. Put your client first, even if it means you have to take a financial hit because you made a lousy deal.  Put your personal philosophies and your bizarre legal theories aside.  These are all about you, not the client. Put the client first and these problems disappear. 

The law isn’t so difficult that you couldn’t possibly manage to provide competent representation  And if it is, then get the hell out of criminal defense.  You have no right to make a living as a lawyer if you can’t deliver. Sorry you wasted that time and money on law school, but that’s how it goes.  As long as you are a lawyer, fulfill the obligation you undertook to your client and don’t expect a judge to make up for it afterward.  The obligation to the defendant is yours.  The law is just a blunt stopgap, and it will never be sufficient to overcome your failings.

Make the effort.  Just do better.