(Blogger’s note: Back to help us untangle our often complex legal system is Stan Glisson, a local Bremerton defense attorney. You might remember his last column explaining whether a driver flashing his headlights is a first amendment right. Here’s Glisson’s take on two supreme court decisions this week that will give criminal defendants far greater abilities to challenge decisions in the prcoess known as ‘plea bargaining.’)
In two brand new decisions, the US Supreme Court has dramatically extended legal protection to criminal defendants in the plea negotiation process. Historically, courts have protected defendants against incompetent defense with the ‘ineffective assistance of counsel’ standard. Basically, the accused person can be granted a new trial when the lawyer’s level of skill at trial appears so poor, or a strategic decision so difficult to justify, that that the jury did not hear a reasonable defense.
Now, the Supreme Court has extended this protection to apparently incompetent representation even on cases that don’t go to trial. In Missouri v. Frye, the defendant was offered a misdemeanor plea and 90 days in jail for what could have been a felony driving offense. The lawyer did not tell the client the plea offer, and it was eventually withdrawn. Later, the accused plead guilty to the felony and received a sentence of three years in prison. The high court decided that failure to advise the client of the favorable plea offer was ineffective assistance, and has now vacated the three year sentence.
For the Court, this is a huge departure and a bold change in the law. The decision requires of the states an enormous undertaking; find a practical way to monitor plea negotiations, previously regarded as semi-confidential, for effective advocacy. The Court recognizes that nationwide about 95% of criminal cases are negotiated short of trial. The decision explains that to a large extent “[plea negotiation] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” As such, the criminal defendant is absolutely entitled to have competent, diligent counsel at the negotiation stage, just like they are at the trial stage. Defense counsel has a duty to communicate potentially favorable plea offers to the defendant, and the court now will have some obligation to monitor that interaction.
Interesting that the Supreme Court made note of one common, and deeply disturbing, phenomenon that occurs with plea negotiation. “[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 books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” The Court does not suggest, as personally troubling as this is, that the court should be involved in changing that outcome. The key issue is whether the defendant was aware of his or her plea options, and made a knowing and informed decision to go forward to trial, understanding the risks that follow. The reality that a less culpable defendant often receives the far harsher sentence is a symptom of the plea negotiation process and prosecutorial discretion, and will be upheld absent ineffective representation.
In Washington, this idea is not new. In a 2005 case, a local lawyer was suspended from practicing law after it was documented that he failed to communicate a written 57 month plea offer to a defendant. The case went to trial, the defendant was convicted, and faced at least 221 months in prison. When the facts about the plea negotiation process were revealed, the Superior Court withdrew the convictions and the defendant was ultimately allowed to accept the original 57 month offer.
So our courts have been willing to listen to the occasional extreme case of ineffective plea negotiation representation. But the US Supreme Court now appears to be requiring that courts be prepared to examine that process in every criminal case. The inquiry, the Court explains, becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is inherently difficult, as “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.”
So how are the courts going to administer this extra responsibility to ensure competence in negotiations? The Supreme Court suggests plea negotiations in writing, perhaps filed in court to show the history of the negotiation process. This is a major practical challenge, but would protect prosecutors and courts from frivolous motions based on unfavorable post-trial sentencings. For example in 2010 nearly 10,000 misdemeanor cases were filed in Kitsap County courts. In one local court, two public defenders last year were assigned nearly 900 criminal cases to handle. Despite growing obligations and legal expectations placed on public defense attorneys, funding for those positions is routinely insufficient. Frankly, it is not a popular place for elected officials to suggest taxpayer money be spent, when prosecution and law enforcement also need funding. In some respects, the court systems, prosecutor’s offices, and public defenders are already working at maximum capacity. But somehow, we will have to find a way for courts to observe not only that defendants’ rights are protected in court and at trial, but also in their lawyer’s offices, on the phone or email, when plea discussions are going on.
The added protection for defendants is undoubtedly the right thing to do, and now it is the law. The accused person must have a competent lawyer who communicates with them throughout the process. A person accused of a crime is entitled to that at a bare minimum. How we are going to monitor that will be the question our courts wrestle with in the years to come.
Stan Glisson is an attorney in Bremerton with the firm Glisson, Witt and Altman. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense and civil cases. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.