Avoiding Plea-bargaining Problems: the Medical Model of Client Communications
| Publication year | 2013 |
| Pages | 63 |
| Citation | Vol. 42 No. 12 Pg. 63 |
Articles
Criminal Law
Avoiding Plea-Bargaining Problems: The Medical Model of Client Communications
By Greg Greer
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Greg Greer represents people accused of crimes. Before opening his law firm, he was a Colorado State Public Defender for twenty-five years. He has been in solo practice at Greer Law Firm, PC in Glenwood Springs since 2007—(970) 945-9269, greg@greggreerlaw. com.
In 2012, the U.S. Supreme Court decided two cases recognizing that the process of plea bargaining is covered by the constitutional right to effective assistance of counsel. This article explores a medical approach to client communication as a method promoting effective assistance of counsel.
Recent decisions from the U.S. Supreme Court have recognized that criminal defendants have a right under the Sixth Amendment to have effective counsel representing them during plea bargaining. This renewed theoretical focus on plea bargaining—which has always been a very important aspect of the criminal justice system—reminds us of the centrality of the defense lawyer's relationship with the client during this crucial time when pleas are being negotiated. One way for criminal defense lawyers to remain attentive to their own challenges and those of their clients during the plea-negotiation process is to regard the lawyer-client relationship similar to that of a doctor-patient relationship.
Introduction to Plea-Bargaining Law
In 2012, in a dissent in Lafler v. Cooper, Justice Antonin Scalia sounded the alarm that "the Court today opens up a whole new field of criminal procedure: plea-bargaining law."[1] In a companion case, Missouri v. Frye, Justice Anthony Kennedy noted that more than 90% of cases in criminal court are resolved without trial and that "criminal justice today is for the most part a system of pleas, not a system of trials."[2] Lawyers practicing in criminal court understand that almost all cases are resolved by plea bargaining rather than trial. What the Supreme Court did in Lafler and Frye was finally recognize a field of criminal procedure that has dominated the process in criminal courts for decades. If the right to effective assistance of counsel is to be meaningful, it makes sense that it would have to apply to 90% of what a lawyer does to assist a client.[3]
In Frye, defendant's attorney failed to advise him of plea offers in a felony case and allowed the offers to expire. One of t hose offers would have allowed Frye to enter a plea of guilty to misdemeanor. Frye eventually entered a plea of guilty to a felony and later testified in a post conviction proceeding that he would have accepted the misdemeanor offer if he had known about it.[4] Thus, Frye presented the issue of the obligation of counsel to communicate plea offers to their clients.
In Lafler, defendant was informed of the favorable plea offer by defense counsel but, based on the erroneous advice of counsel, rejected the plea. Lafler then went to trial and was convicted after "a full and fair trial before a jury."[5]He was charged with assault with intent to kill under Michigan law. The flawed advice Lafler got from his counsel was that the prosecution would be unable to establish his intent to kill because the victim had been shot below the waist.[6]Lafler presented the issue of the quality of counsel's advice to a client in communicating a plea offer.
The Court found that the communication failures of counsel in Lafler and Frye amounted to ineffective assistance of counsel and a constitutional violation of the right to counsel. Further:
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.[7]
The Lafler and Frye opinions recognize that the guarantee of effective counsel contained in the Sixth Amendment will r ing hollow if it does not include the right to have effective counsel in plea negotiations. Stephanos Bibas, one of the leading commentators on the subject of plea bargaining, [8] noted that "[a]fter four decades of neglecting laissez-faire plea bargaining ... the Court has brought law to the shadowy plea-bargaining bazaar."[9]
These two cases open important new areas of post-conviction practice. One commentator has suggested that five categories of cases may be affected by claims of ineffective assistance of counsel during plea bargaining:
1)bad advice on the law concerning sentencing;
2) bad advice on the law regarding trial;
3) failure to communicate plea negotiations;
4) bad advice arising from incompetent investigation; and
5) bad advice from prosecutors and judges.[10]
Other avenues of attack will be limited only by the imagination of creative postconviction counsel. Indeed, the majority opinion in Frye observed that plea bargaining is, by its nature, defined to a substantial degree by personal style, and declined to further define the duties of defense counsel with respect to negotiation style.[11]
Several state appellate courts were ahead of the curve, recognizing a state constitutional right to effective assistance of counsel during plea bargaining. In 1986, Iowa was the first, [12] followed a year later by Washington.[13] Many other states applied the right of effective assistance of counsel to plea bargaining long before the decisions in Lafler and Frye.[14]
Colorado joined the parade in 2009. In Carmichael v. People}[15]the Colorado Supreme Court held that the constitutional right to effective assistance of counsel extends to the entire plea-bargaining process. The Court noted that "[A] defendant's decision whether to plead guilty or proceed to trial 'is ordinarily the most important single decision in any criminal case.'"[16] Courts therefore have already spent several years exploring the boundaries of effectiveness in a plea-bargaining context.[17]
Lafler and Frye have not, therefore, had much impact on how Colorado criminal practitioners litigate post-conviction motions. However, by emphasizing the communications between defense lawyers and their clients, these two cases have put the criminal lawyer-client relationship into renewed focus.
The Fuzzy Boundaries of Effectiveness in Plea Bargaining
As the majority opinion in Frye recognizes, plea bargaining is defined to a substantial degree by the personal style of counsel, and the individual abilities and character of particular clients. That is why the majority went out of its way to explain that, although defense counsel have a constitutional obligation to be effective during plea negotiations, it could not further define the duties of defense counsel with respect to negotiation style.[18]
The ambiguous boundary of effective plea bargaining was the subject of the dissent in both Frye and Lafler. Even the precedent that there is no constitutional right to a plea bargain[19] may now be questioned. The dissent in Lafler notes that the plea-bargaining opinions "deal with only two aspects of counsel's plea-bargaining inadequacy, and leave other aspects (who knows what they may be?) to be worked out in further constitutional litigation. . . ."[20] The dissent asks the question: "[I]s it constitutional, for example, ... to make no plea offer at all, even though its case is weak—thereby excluding the defendant from 'the criminal justice system?'"[21]
However these questions are answered in the future, there are things that can be done to avoid being involved in a test case. The duty to communicate plea offers to one's client is simple and absolute.[22] Beyond that, the manner and content of communicating plea offers to a client, as well as the preparation necessary to evaluate the possibilities of a negotiated plea, are skills that must be developed with good training and experience.
Sharpening the Boundaries: The Medical Model
The medical model of client communications is based on the recognition that people seeking medical help for a disease or injury have many similarities to people seeking legal advice after being accused of a crime.[23] Patients and clients are both seeking advice from a professional because of a negative experience in their life. A patient's negative life experience might be an injury or disease, and a client's is the experience of being accused of criminal conduct. The professional—be it...
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