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Albert W. Alschuler



June 2013

This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series:

http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection.

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM Lafler and Frye: Two Small Band-Aids for a Festering Wound Albert W. Alschuler*











A. Finding a Baseline

B. An Unconvincing Study

C. The Expected Difference Between Sentences Imposed Following Trials and Those Imposed Following Guilty Pleas............ 691 D. A Hard Look at the Post-Trial Baseline.......... 696 V. CONCLUSION

Imagine that you are on death row, and imagine that the incompetence of your lawyer has put you there. A witness at your trial testified that you waited at the wheel of a getaway car while two accomplices robbed a liquor store and one of them shot and killed the clerk. Shortly after your arrest, the prosecutor offered to permit you and your co-defendants to plead guilty to voluntary manslaughter and armed robbery. This offer would have limited your sentence to 25 years.1 Your co-defendants, including the alleged triggerman, accepted the offer. You would have accepted the offer too if your lawyer had told you about it, but he never did.

* Julius Kreeger Professor of Criminal Law and Criminology, Emeritus, the University of Chicago.

1. Sandra Lockett turned down an offerlike this one before being convicted and sentenced to death. See Lockett v. Ohio, 438 U.S. 586, 591 (1978).

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–  –  –

Two things astonish me about the decisions in Lafler v. Cooper2 and Missouri v. Frye.3 The first is that four justices of the United States Supreme Court would allow your lawyer’s incompetence to kill you. These justices appear incredulous that anyone might think you were treated unfairly.

One of these dissenting justices, Justice Scalia, proclaims that you “received the exorbitant gold standard of American justice—a full-dress criminal trial.”4 He argues that the people who object to your execution “embrace[] the sporting-chance theory of criminal law, in which the State functions as a conscientious casinooperator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves.”5 In Justice Scalia’s view, you’ll get what you deserve while your co-defendants just got lucky. Never mind that the prosecutor initially acknowledged that public justice did not require your execution; never mind that, through no fault of your own, you did not get the sentence the American legal system considers normal for offenders like you; and never mind that, despite the Constitution’s promise of the assistance of counsel, it was your lawyer who did you in. In the American legal system, you got the gold.

When defense lawyers have slept through their trials, courts have noted that a sleeping lawyer is the equivalent of no lawyer at all.6 Your lawyer, however, was worse than no lawyer at all.

Without him, the prosecutor would have made his offer directly to you, and you would not be on death row. The state licenses lawyers so that people like you can rely on them, but if Justice Kennedy, the second most powerful man in America, had voted the other way, the Court would allow your execution.

2. 132 S. Ct. 1376 (2012).

3. 132 S. Ct. 1399 (2012).

4. Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting).

5. Id. Justice Thomas joined the portion of Justice Scalia’s dissenting opinion that includes this rhetoric. Chief Justice Roberts joined an earlier portion that made the same point less flamboyantly: “The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any ‘remedy’ provided for this will do nothing but undo the just results of a fair adversarial process.” Id. at 1397. In a separate dissenting opinion, Justice Alito declared, “Respondent received a trial that was free of any identified constitutional error, and, as a result, there is no basis for concluding that respondent suffered prejudice....” Id. at 1398 (Alito, J., dissenting).

6. See Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc); Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984).

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Summer 2013 Two Band-Aids 675

Stephanos Bibas describes the division between the majority and dissenting opinions as “a jurisprudential one rooted in biography and outlook.”7 Justice Scalia, he says, “approaches matters as an originalist..., regulating the eighteenth-century world of the Framers.”8 In fact, nothing at all seems “originalist” about Justice Scalia’s position. Substituting a regime of plea bargaining for the regime of jury trials ostensibly safeguarded by the Constitution would have appalled the authors of that document.9 The courts of their era strongly discouraged guilty pleas and held confessions induced by promises of leniency involuntary.10 Even if one can imagine that the Framers would have countenanced a regime of plea bargaining, it is difficult to believe they would have withheld a right to the assistance of counsel in the process that superseded the one they knew.11 Like all the other justices of the Supreme Court, Justice Scalia genuflects before the perceived necessity of plea bargaining.12 There are no originalists there.13 The second thing that astonishes me about Lafler and Frye is that the remaining five justices of the Supreme Court might also leave you on death row. While acknowledging that your constitutional rights were violated, they would allow the judge who tried and sentenced you to do nothing about it. The majority declares that the “correct” remedy in cases like yours

7. Stephanos Bibas, Taming Negotiated Justice, 122 YALE L.J. ONLINE 35, 38 (2012).

8. Id.

9. The Constitution declares that “[t]he Trial of all Crimes... shall be by Jury...,” U.S. CONST. art. III, § 2, and that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. CONST. amend. VI. As John Langbein notes, Americans now can replace the word “all” in these provisions with the words “virtually none.” See John H. Langbein, On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial, 15 HARV. J.L. & PUB. POL. 119, 119-20 (1992).

10. See Albert W. Alschuler, Plea Bargaining and Its History, 79 COLUM. L. REV. 1, 7The defendants in Lafler and Frye had the assistance of counsel at trial, but the lack of effective legal assistance kept them from obtaining the benefits of America’s “real” legal system. I doubt that the Framers would have cheered.

12. See Lafler v. Cooper, 132 S. Ct. 1376, 1397 (Scalia, J., dissenting) (“In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil.”).

13. Cf. Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 OHIO ST. J. CRIM. L. 463, 501-11 (2009) (noting that justices who criticize the Fourth Amendment exclusionary rule because it was unknown to the Framers have restricted the remedies that were known to the Framers in ways they never would have approved).

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676 Duquesne Law Review Vol. 51

is to order the State to reoffer the plea agreement. Presuming the respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the conviction[] and resentence respondent pursuant to the plea agreement... or to leave the conviction[] and sentence from trial undisturbed.14 Notice that the issue is not whether the court would have accepted your guilty plea and sentenced you in accordance with the agreement if your lawyer had been competent. It is whether sentencing you in accordance with the agreement feels like a good idea today.

The usual goal of legal remedies is to place the victim of a wrong in the position he would have occupied had the wrong not occurred, and doubts about what position he would have occupied usually are resolved against the wrongdoer. For example, before a constitutional trial error can be treated as harmless, the state usually must demonstrate “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”15 When the Supreme Court wishes to disregard this principle, however, it reshapes the constitutional right. You may believe, for example, that you have a right to the effective assistance of counsel, but the Supreme Court says you don’t. You have only a right to counsel whose ineffectiveness does not undermine confidence in the outcome of your trial. To establish a violation of this right, you must show not only that your “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment” but also that your counsel’s “deficient performance prejudiced the defense” by depriving you of “a fair trial, a trial whose result is reliable.”16 With the Sixth Amendment right reconfigured in this way, the state need not show that your lawyer’s inadequate performance was harmless. You must show that it wasn’t.

This standard has been in place for nearly thirty years. Frye says that it requires you to demonstrate not only your lawyer’s defective performance but also a “reasonable probability” of two additional things—first, that you would have accepted the prosecutor’s offer if your lawyer had told you about it and, second, that

14. Lafler, 132 S. Ct. at 1391.

15. Chapman v. California, 386 U.S. 18, 24 (1967).

16. Strickland v. Washington, 466 U.S. 668, 686 (1984).

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–  –  –

the court would have approved the deal.17 Those requirements come as no surprise, but satisfying them may not get you off death row. Satisfying these requirements will merely establish a violation of your right to counsel. Lafler then leaves the question of remedy to the trial judge’s discretion. He may restore you to the position you would have occupied if your lawyer had been competent, or he may not.18

17. 132 S. Ct. at 1409.

18. The Supreme Court apparently declined to order implementation of the sentence a capable lawyer would have obtained for you because the evidence presented at your trial might have shown that this sentence was too lenient. For example, an accomplice might have testified that you proposed robbing the liquor store, supplied the firearms, and instructed your confederates to leave no witness alive. The prosecutor might have been unaware of your accomplice’s allegations when he made his offer, and the judge might have been convinced by the accomplice’s testimony.

When a legal system is so indifferent to the truth that it bribes defendants not to contest the prosecutor’s evidence or present any evidence of their own, it seems odd to insist that sentencing judges must be able to consider every circumstance that has emerged as a result of violating a defendant’s rights. In many cases each day, courts impose sentences pursuant to plea agreements that they might have considered too lenient had they examined the evidence, and if the truth later emerges, the defendants’ sentences remain final.

Should your case be different simply because you had an inadequate lawyer?

The Supreme Court majority apparently answers this question yes, and perhaps you would have received a clearly undeserved break had your lawyer done his job. Even so, the Court might have hesitated before substituting a regime of judicial discretion for the customary (if sometimes too generous) remedial principle.

When the sentence a judge has imposed after a trial differs from the sentence the prosecutor offered before trial, the judge is likely to consider the sentence he imposed more appropriate. Is the judge’s conclusion that the pretrial offer would constitute inadequate punishment a sufficient reason for him to deny a remedy? Could he deny a remedy for this reason in every case, thereby nullifying the rulings in Lafler and Frye? Or must the judge conclude that the sentence offered by the prosecutor was grossly inappropriate or flagrantly unjust? Must the judge find that the prosecutor was unaware of a relevant circumstance at the time he made his offer? (It probably would not be difficult for a judge who has conducted a trial and examined a presentence investigation report to make such a finding.) What if the judge exercised his discretion on a different basis—concluding, for example, that he should give the defendant only the benefit of whatever portion of the prosecutor’s offer was “driven by fairness concerns”? See Wesley M. Oliver, The Indirect Potential of Lafler and Frye, 51 DUQ. L. REV. 640-41, 645 (2013).

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