A pair of U.S. Supreme Court decisions last year, which hold defense attorneys responsible for botched plea bargains, are affecting the way lawyers handle such deals.
For the first time, the court said the Constitution's Sixth Amendment guarantee of effective counsel applies not only during a trial, but also during the negotiation of a possible plea. Poor lawyering during plea negotiations could be even more important than during a trial, Justice Anthony Kennedy wrote in one of the decisions, Lafler v. Cooper.
"Criminal justice today is, for the most part, a system of pleas, not a system of trials," he wrote. "Ninety-seven percent of federal convictions and 94 percent of state convictions are the result of guilty pleas."
The two decisions reversed cases in which defendants were convicted after trial. In one of them, the defendant went to trial after his attorney didn't tell him about a plea offer prosecutors had made that would have resulted in a lighter sentence. In the other, Frye v. Missouri, the defendant rejected a plea offer based on faulty advice by his attorney and got a harsher sentence after trial.
Forced to talk
Some lawyers say the decisions already are changing the way they communicate with their clients.
"It's forced us to talk to our clients a lot more than we ever would before," said Steve Politi of Central Islip. "If you're following the case law properly, it creates more work and more communication."
Lawyers said the decisions also mean that the plea bargain process, which has often been casual and haphazard, could become more formalized.
"The plea process will be dissected [by appellate courts] for fairness, just like trials have been," said William Easton of Rochester.
Yet unlike a trial, the record of a negotiation is often murky, he said. "It's never linear," he said. "It's never logical. It's infused with personality."
It's appropriate that courts take these negotiations seriously, he said. "There's a realization that plea bargaining is not an adjunct to the process," Easton said. "It is the process."
Suffolk District Attorney Thomas Spota said negotiations haven't changed much with defense attorneys, but he now requires his prosecutors to put all plea offers on the record in the courtroom, so defendants can't claim later they were uninformed.
"We don't know what the communications are between a defendant and his counsel," Spota said, adding he would prefer that judges inform defendants of any plea offers. But if that doesn't happen, he said, his prosecutors know they have to do it.
Quality of communication
Just as important is the quality of communication between attorney and client. Kennedy noted that in one case, a defendant got a much worse sentence after rejecting a plea deal because of bad advice.
"Far from curing the error, the trial caused the injury from the error," he wrote.
"A big part of what we do is not just relaying the [plea] offer, but to give advice," said defense attorney Michael Brown of Central Islip. "That's what they're looking at."
"We're not just supposed to be messenger pigeons," said Timothy Murphy, an appellate lawyer from Buffalo. "This is making attorneys take a step back and really flesh things out."
In the moment, however, it can be difficult to know whether advice is bad, some lawyers said.
"Where's the difference between bad advice and strategy?" asked David Besso of Bay Shore. "You evaluate it [after the fact] by results."
And Spota said there's nothing prosecutors can do to prevent a lawyer from giving a client lousy advice.
"We can't guard against an attorney telling his client, 'Don't take a plea, I'll beat it,' " he said.
Another complication is that plea deals often are negotiated before prosecutors have turned over evidence in the case to defense attorneys.
"You can't give advice that's meaningful without that," Murphy said.
And some prosecutors are slow to give up that material, Besso said. "You've got to squeeze the information out of them," he said.
Easton said prosecutors need to learn that effective plea bargaining can't take place if they withhold evidence. "I just don't think it's fully sorted yet."
In the interest of justice, lawyers say it makes sense for defendants to know how their fates are being negotiated.
"I think it's good for the whole system to have defendants be informed," Murphy said.