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A defendant denied a remedy would be likely to allege an abuse of the judge’s discretion on appeal. In a legal system too miserly to implement the defendant’s right to trial, does devoting significant resources to delineating the boundaries of a judge’s discretion not to remedy a constitutional violation make sense? Are the many issues posed by the LaflerFrye ruling on remedies worth resolving? Recall that a court will consider these issues only after a defendant has shown that his lawyer was inadequate, that he would have accepted the prosecutor’s offer, and that a court would have approved the agreement. See generally Jenia Iontcheva Turner, Effective Remedies for Ineffective Assistance, 48 WAKE FOREST L.

REV. (forthcoming 2013) (manuscript on file with author).

In Burt v. Titlow, 2013 WL 656043 (Feb. 25, 2013) (order granting certiorari), the Supreme Court will consider what remedy, if any, to provide when a lawyer’s ineffective assistance led a defendant to withdraw from an agreement that would have required her to testify against an alleged accomplice. Following the lawyer’s ineffective assistance, the purported accomplice was tried and acquitted without the defendant’s testimony, and the File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

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Those are the things I find remarkable about Lafler and Frye, but I am a pessimist who sees the glass as nine-tenths empty.

More cheery people observe that the glass is one-tenth full. Indeed, in a heartwarming demonstration of the will to believe, some claim that Lafler and Frye will be remembered as landmarks.

Wesley Oliver, for example, told the New York Times, “The Supreme Court’s decisions in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v.

Wainwright provided indigents the right to counsel.”19 Stephanos Bibas wrote, “After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right.... Finally, the Court has brought law to the shadowy plea-bargaining bazaar.”20 Ronald Wright told the Times, “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next three years.” Wright observed that, although plea bargaining has been the rule rather than the exception for generations, “the Supreme Court has, until the last two or three years, found a way to ignore that.” The Court is like “Rip Van Winkle waking up. He looks around and says, ‘Wow, when I went to sleep the world was full of trials.’”21 Others have used words like “bold,” “huge,”22 and “game-changing.”23 They have declared, “With the defendant herself was tried, convicted, and sentenced to a term of twenty-to-forty years (rather than the seven-to-fifteen years she would have received under the abandoned agreement). The government argues that, because it cannot be restored to the position it would have occupied had the agreement been fulfilled, the defendant should not be restored to the position she would have occupied either. See Titlow v. Burt, 680 F.3d 577 (6th Cir.


Whenever ineffective legal assistance leads to an unnecessary post-trial penalty (as in Lafler and Frye themselves), the defendant cannot give the government what it bargained for. He can no longer save the government the cost of a trial. The fact that the defendant, through no fault of his own, cannot fulfill his part of the bargain provides no reason to deny him a remedy. The Constitution promised him effective legal assistance, and when his attorney failed to provide it, it was the government that defaulted on a core promise. Like the defendant, the prosecutor’s office might have been blameless. It is nevertheless appropriate for the government rather than the defendant to bear the consequences of a governmental default by restoring the defendant to the position he would have occupied had the constitutional promise been fulfilled.

19. Adam Liptak, Justices Expand Rights of Accused in Plea Bargains, N.Y. TIMES, Mar. 22, 2012, at A1; see Gideon v. Wainwright, 372 U.S. 335 (1963).

20. Bibas, supra note 7, at 35.

21. Erika Goode, Stronger Hand for Judges in the “Bazaar” of Plea Deals, N.Y. TIMES, Mar. 23, 2012, at A12.

22. Id.

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Summer 2013 Two Band-Aids 679

... decisions in Missouri v. Frye and Lafler v. Cooper, a new era in the jurisprudence of the Sixth Amendment has begun.”24 These remarks bring to mind some notable words of Justice Holmes: “Oh bring in a basin.”25 One reason the gush is unwarranted is that Lafler and Frye did not change the law. For more than forty years, the Supreme Court has called plea bargaining an “essential part of the [criminal] process”26 and has recognized that defendants have a right to the assistance of counsel in evaluating offers and deciding whether to plead guilty.27 Indeed, this right is just about the only right defendants who plead guilty still have.

The Court wrote in McMann v. Richardson in 1970, “In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea....”28 It declared in Tollett v. Henderson in 1973 that a defendant who pleads guilty “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standard set forth in McMann.”29 In 1985, the Court indicated that an attorney’s mistaken advice concerning a defendant’s eligibility for parole could invalidate a guilty plea, but only if the defendant could show that suitable advice would have led him to stand trial.30 In 2010, the Court held an attorney’s performance deficient because he failed to advise a client that a guilty plea could lead to his deportation, but the Court did not consider whether the client had shown prejudice.31 To be sure, until Lafler and Frye, the Court had not considered a claim that a lawyer’s deficient performance had produced, not an ill-advised guilty plea, but an avoidable post-trial penalty. Eleven of the twelve federal courts of appeals, however, had considered

23. Cynthia Alkon, Plea Bargaining, Just as it Ever Was?, THE MAYHEW-HITE REPORT DISPUTE RESOLUTION COURTS, (May 2012), ON AND THE http://moritzlaw.osu.edu/epub/mayhew-hite/2012/05/plea-bargaining-just-as-it-ever-was/.

24. Justin F. Marceau, Embracing a New Era of Ineffective Assistance of Counsel, 14 U.

PA. J. CONST. L. 1161, 1161 (2012).


469 n.11 (1989) (quoting a letter from Holmes to J. H. Wigmore, Nov. 1915).

26. Santobello v. New York, 404 U.S. 257, 261 (1971). The observation that, although television dramas portray trials, the real world is dominated by plea bargains was commonplace forty years ago. Neither the Supreme Court nor any other observer of the American criminal justice system awoke to this truth only yesterday.

27. See the rulings described in the following paragraph.

28. 397 U.S. 759, 770 (1970).

29. 411 U.S. 258, 267 (1973). I discuss McMann and Tollett in Albert W. Alschuler, The Supreme Court, the Defense Attorney, and the Guilty Plea, 47 U. COLO. L. REV. 1 (1975).

30. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

31. Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).

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680 Duquesne Law Review Vol. 51

claims of this sort, and all of them had recognized that a defendant was entitled to relief when his lawyer’s defective representation caused him to lose a beneficial plea agreement.32 Most state courts had agreed,33 although a very few had held that a diamondstudded, gold-plated trial could make it immaterial whether a lawyer’s faulty performance during plea negotiation produced extra years of imprisonment for his client.34

32. See, e.g., United States v. Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991) (“A defendant has a right to be informed of a plea offer. Ordinarily, counsel’s failure to do so constitutes ineffective assistance of counsel.”); Boria v. Keene, 99 F.3d 492, 496-99 (2d Cir. 1996) (reducing a prisoner’s sentence to time served because a lawyer who had advised him of a prosecutor’s offer failed to offer his personal assessment of the wisdom of accepting it);

United States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (“Failure by defense counsel to communicate a plea offer to defendant deprives defendant of the opportunity to present a plea bargain for the consideration of the state judge.... A subsequent fair trial does not remedy this deprivation.”); United States v. Brannon, 48 Fed. Appx. 51, 53, 2002 U.S. App.

LEXIS 20969 (4th Cir. 2002) (“Erroneous advice during the plea negotiation process or the failure of a defense attorney to timely inform his client of a plea offer constitutes unreasonable professional assistance.”); United States v. Herrera, 412 F.3d 577, 581 (5th Cir. 2005) (“a 27-month increase in a sentence constitutes prejudice”); Cooper v. Lafler, 376 Fed. App’x 563, 573, 2010 U.S. App. LEXIS 95899 (6th Cir. 2010) (“Petitioner lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him because he was deprived of his constitutional right to effective assistance of counsel. Thus, he has established prejudice.”), vacated and remanded, 132 S. Ct. 1376 (2012); Julian v. Bartley, 495 F.3d 487, 499 (7th Cir. 2007) (“but for the ill-advice, Julian would have taken the plea”);

Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003) (defendant made out a prima facie case of ineffective assistance by alleging that if he had “been informed accurately, he would expressly have taken the bargain”); Williams v. Jones, 571 F.3d 1086, 1091 (10th Cir. 2009) (“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”); Oliver v. United States, 292 Fed. App’x 886, 887, 2008 U.S. App. LEXIS 19743 (11th Cir. 2008) (holding that failing to inform the defendant of the government’s “eve-of-trial plea offer... constitutes deficient performance”); United States v. Mouling, 557 F.3d 658, 669 (D.C. Cir. 2009) (“An evidentiary hearing is necessary to determine whether Mouling knew the details of the plea offer and whether there was a reasonable probability he would have accepted the offer had counsel properly informed him of it.”).

33. See e.g., Davie v. State, 675 S.E.2d 416 (S. Car. 2009); Charmichael v. People, 206 P.3d 800 (Colo. 2009); Leake v. State, 737 N.W.2d 531 (Minn. 2007); Dew v. State, 843 N.E.2d 556 (Ind. App. 2006); Jiminez v. State, 144 P.3d 903, 907 (Okla. Crim. App. 2006);

Commonwealth v. Mahar, 809 N.E. 2d 989, 993 (Mass. 2004); People v. Gandiaga, 70 P.3d 523, 527 (Colo. App. 2002); State v. Donald, 10 P.3d 1193 (Ariz. App. 2000); State v.

Tacetta, 797 A.2d 884 (N.J. Super 2002): State v. Garrison, 40 S.W.3d 426, 430-31 (Tenn.

2000); Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000); In re McCreedy, 996 P.2d 658 (Wash. App. 2000); Becton v. Hun, 516 S.E.2d 762 (W. Va. 1999); People v. Curry, 687 N.E.2d 877 (Ill. 1997); State v. Lentowski, 569 N.W.2d 758 (Wis. 1997); Williams v. State, 605 A.2d 103 (Md. App. 1992); State v. Kraus, 397 N.W.2d 671 (Iowa 1986).

34. See Bryan v. State, 134 S.W.3d 795, 802-03 (Mo. Ct. App. 2004); State v. Greuber, 165 P.3d 1185, 1189 (Utah 2007). In Winward v. State, 293 P.3d 259 (Utah 2012), the Utah Supreme Court acknowledged that Lafler and Frye had repudiated its decision in Greuber.

The court observed, however, “Greuber may remain good law to the extent that it guides lower courts in fashioning a remedy.” Id. at 269 n.12.

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Summer 2013 Two Band-Aids 681

The consensus of the courts prior to Lafler and Frye may not have rested entirely on their concern for defendants’ rights. Ensuring that prosecutors’ offers reach defendants is in the interest of plea-hungry prosecutors and courts as well as defendants themselves. Ensuring that lawyers convey accurately the coercive power of these offers helps to keep the river of guilty pleas flowing.

Deficient lawyering in Lafler and Frye may not only have cost two defendants years of their lives but also required the state to pay the cost of an unnecessary trial.35 If the dissenters’ views had prevailed, Lafler and Frye would have been revolutionary, but the majority opinions were not. In fact, both majority opinions concluded that the courts below had been too generous in affording relief to the petitioners.36 Because Lafler and Frye gave defendants nothing they did not already have, Justice Scalia protested too much when he became the first to award these decisions landmark status: “[T]he Court today

opens a whole new field of constitutionalized criminal procedure:

plea-bargaining law.”37 It was the author of those words who must have been dozing like Rip Van Winkle.



Even if Lafler and Frye had not fudged the question of remedy and even if these decisions had burst on the scene bold, new, and shiny, they would not warrant the hype bestowed upon them by professors and the press. Three observations about the American legal system I made twenty-seven years ago seem relevant.

First, our plea-dominated system makes the kind of justice a “defendant receives more dependent on the quality of his counsel

35. Only one unnecessary trial. After the prosecutor’s offer lapsed in Frye, the defendant pleaded guilty without a bargain.

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