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Josh Bowers notes, “The government may be the unsung winner of Lafler v. Cooper and Missouri v. Frye.” Josh Bowers, Lafler, Frye, and the Subtle Art of Winning by Losing, 25 FED. SENT’G. REP. 126, 126 (2012). In his view, these decisions “merely have helped guarantee that a defendant has a lawyer good enough to convince him that the prosecutor holds the cards and that he is sunk.” Id.

36. See Frye, 132 S. Ct. at 1410-11 (“The Court of Appeals erred... in articulating the precise standard for prejudice in this context. As noted, a defendant in Frye’s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecutor would have adhered to the agreement and that it would have been accepted by the trial court.”); Lafler, 132 S. Ct. at 1391 (holding that the district court and the Court of Appeals erred by ordering specific performance of the agreement the petitioner would have entered if he had received adequate advice).

37. Lafler, 132 S. Ct. at 1391 (Scalia, J., dissenting).

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682 Duquesne Law Review Vol. 51

than any other legal system in the world.” Second, this system “subjects defense attorneys to serious temptations to disregard their clients’ interests.” And third, this system “makes it impossible to determine whether defendants have received the effective assistance of counsel.”38 Decisions like Lafler and Frye can neither guarantee effective legal representation in the plea negotiation process nor do much to make it more likely.

Defenses of plea negotiation offer sweet pictures of wellinformed defendants making rational assessments of surrender and gain.39 They depend on the assumption that defendants will be well represented. For private attorneys, however, a guilty plea is a quick buck. Defense attorneys have good reasons for collecting their fees in advance, and once they have pocketed their fees, their personal interests lie in disposing of their cases as rapidly as possible. This conflict of interest influences even well-paid, conscientious lawyers, and the bar includes some lawyers who are neither well paid nor conscientious. They handle a high volume of cases for small fees and almost never take a case to trial.40 Plea negotiation also minimizes work and reduces conflict within what organizational theorists call the “courtroom workgroup.”41 Bargaining promotes cordial and comfortable relationships with prosecutors and judges. These interests may influence public defenders even more than they do private lawyers.42 Advising a client to enter a plea agreement can never be proven wrong. Taking a case to trial and losing may appear to have been a bad choice, especially when this decision has produced a sentence two or twenty times more severe than the one the prosecutor offered before trial. A bad outcome at trial may cause both the client’s regard for his lawyer and the lawyer’s self-esteem to sufAlbert W. Alschuler, Personal Failure, Institutional Failure, and the Sixth Amendment, 14 N.Y.U. REV. L. & SOC. CHANGE 149, 156 (1986).

39. See, e.g., Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Thomas W. Church, In Defense of “Bargain Justice”, 13 LAW & SOC’Y REV.

509 (1979); Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909 (1992); Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J.

1969 (1992).

40. See Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 YALE L.J. 1179, 1181-1206 (1975).






JUSTICE, 1950-1990 at 87 (1993).

42. See Alschuler, supra note 40, at 1206-55.

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Summer 2013 Two Band-Aids 683

fer. It also may increase the likelihood of a claim of professional ineffectiveness. When one has entered a plea agreement, however, he can always imagine that the outcome of a trial would have been worse. Advising a client to plead guilty is nearly always the safe, secure, comfortable, and profitable course. Everything in our criminal justice system pushes in that direction.

A lawyer’s conferences with his client are not public, and neither are his bargaining sessions with the prosecutor. The effectiveness of Lafler and Frye depend on the willingness of lawyers to acknowledge failings so serious that their conduct falls below what the Supreme Court calls “the wide range of reasonable professional assistance.”43 The lawyers whose performances were judged ineffective in Lafler and Frye were appropriately forthcoming,44 but when a defendant says, “my lawyer never told me about the offer,” and the lawyer says, “oh yes I did,” the defendant is almost

43. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”).

44. In Frye, [t]rial counsel testified at the post-conviction hearing that trial counsel could not recall whether he had communicated the Offer to Frye. Trial counsel testified that there was no correspondence in his file to indicate any effort was made by his office to mail the Offer to Frye. Trial counsel could not recall speaking with, seeing, or ever attempting to contact Frye during the Offer window of November 15, 2007, to December 28, 2007.

Frye v. State, 311 S.W.3d 350, 352 (Mo. Ct. App. 2010), vacated and remanded, 132 S. Ct.

1399 (2012).

In Lafler, counsel testified that he advised his client to reject the prosecutor’s offer because the charge of which the client later was convicted “could not be supported by the evidence.” Counsel earlier had prompted the prosecutor to withdraw his offer by saying on the record of a pretrial conference that there was “insufficient evidence” and that the “Prosecution does not have the evidence to try to [sic] this case.” See Cooper v. Lafler, 376 Fed.

Appx. 563, 566, 2010 U.S. App. LEXIS 95899 (6th Cir. 2010), vacated and remanded, 132 S.

Ct. 1376 (2012). The Supreme Court said in Lafler that it was unclear whether respondent’s counsel believed respondent could not be convicted for assault with intent to murder as a matter of law because the shots hit Mundy below the waist, or whether he simply thought this would be a persuasive argument to make to the jury to show lack of specific intent. And... an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance. Here, however, the fact of deficient performance has been conceded by all the parties.... [T]here is no need to address that question.

132 S. Ct. at 1390-91.

The lawyers whose performances were judged ineffective in Lafler and Frye probably were not among those whose performance should prompt the most serious concern. Not only were these lawyers forthright about their errors; at least one of them was willing to try his cases. (The defendant in Frye ultimately pleaded guilty without a bargain.) If the defendant’s lawyer in Lafler had taken the easy course and advised his client to plead guilty, his conduct would not have been judged ineffective.

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684 Duquesne Law Review Vol. 51

certain to lose. When a defendant claims that his lawyer misinformed him, many lawyers are likely to respond that the defendant misunderstood.

Moreover, the confessions of lawyers must be of a particular kind. Failing to convey critical information (say, about the existence of an offer) may entitle a client to relief, and negligent misstatements of law or fact may too.45 So may ignoring or failing to investigate important evidence, trading the interests of one client for the interests of another, and refusing to bargain at all in a case offering little or no chance of success at trial.46 Self-interested advice to plead guilty, inept negotiating, and erroneous predictions, however, almost certainly will not suffice. In our lawyersupportive legal system, no one need recognize the ineffectiveness of the weakest members of the bar, not even the weak lawyers themselves. One can always conjure up plausible reasons for a default.47 A prosecutor in Ventura County, California recalled the telephone calls he received from a lawyer who invariably persuaded his clients to plead guilty. “Phil,” this lawyer would say, “will you let my guy go with a misdemeanor? Of course we’ll plead anyway, but I just wondered if you could let him go with a misdemeanor.” The prosecutor always answered that he could not reduce the charge “in view of the circumstances of the case.”48 Although the lawyer described by this prosecutor pocketed his clients’ cash without helping them, Lafler and Frye will not touch him. Judicial decisions cannot significantly ameliorate the problem of defective, self-interested lawyering in the plea-negotiation process.

45. Some lawyers go to the point of lying to their clients in order to persuade them to plead guilty. A few even extract additional payments by claiming falsely that “the fix is in.” See Alschuler, supra note 40, at 1194-97. A lawyer willing to lie to his clients, however, probably is willing to lie about lying.

46. See Rishi Batra, Lafler and Frye: A New Constitutional Standard for Negotiation, 14 CARDOZO J. CONFLICT RES. 309, 325-31 (2013).

47. Cf. Frye, 132 S. Ct. at 1408 (“Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process.”).

48. Conversation with Phillip E. Johnson sometime.

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–  –  –

American defendants plead guilty in overwhelming numbers49 because the sentences imposed pursuant to plea agreements are substantially less severe than those imposed following convictions at trial.50 Defenders of plea negotiation typically treat post-trial sentences as the baseline from which plea agreements are to be judged. They (and many critics) view plea-bargained sentences as departures from an ethical norm.51 Justice Scalia’s dissent in Lafler describes plea negotiation as a way to “beat the house, that is, to serve less time than the law says [an offender] deserves.”52 Justice Kennedy’s majority opinion in Lafler rejects the assumption that post-trial sentences are an appropriate ethical baseline.

He quotes Professor Bibas: “‘The expected post-trial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view full price as the norm and anything less a bargain.’”53 Justice Kennedy reiterates the point in Frye, this time quoting Professor Barkow: “‘[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the

49. See Frye, 132 S. Ct. at 1407 (noting that “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas”) (citing DEPT. OF


ONLINE, Table 5.22.2009, http://www.albany.edu/sourcebook/pdf/t5222009.pdf and DEPT. OF


FELONY SENTENCES IN STATE COURTS, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov.

2010), http://bjs.ojp.usdoj.gov/content/publ/pdf/fssc06st.pdf).

50. See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CALIF. L.

REV. 652, 653-57 (1981).

51. For example, Thomas W. Church’s defense of plea bargaining recognizes that “bargaining, particularly when the judge or prosecutor manipulates post trial sentencing philosophy sentences to ‘punish’ those who refuse to plead guilty, can operate to coerce or unfairly encourage guilty pleas.” Church, supra note 39, at 519. In a “defensible plea bargaining system,” Church says, those cases that go to trial must be decided on the merits, without penalizing the defendant for not pleading guilty. In other words, trial sentences must be objectively deserved according to whatever is embodied in the penal code. Plea bargaining should therefore result in sentences less than this theoretically correct sentence.

Id. at 520.

52. Lafler v. Cooper, 132 S. Ct. 1376, 1398 (2012) (Scalia, J., dissenting).

53. Id. at 1387 (quoting Stephanos Bibas, Regulating the Plea-Bargaining Market:

From Caveat Emptor to Consumer Protection, 99 CAL. L. REV. 1117, 1138 (2011)).

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686 Duquesne Law Review Vol. 51

books largely for bargaining purposes.’”54 If accurate, the observations of Professors Bibas and Barkow rout the central claim of the dissenters—that “a full dress criminal trial” is the “exorbitant gold standard of American justice”55—and the dissenters offer no reply.

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