Amicus briefs update: NDAA in the Supreme Court.

• Author: Locher, Albert
• Position: National District Attorneys Ass'n

NDAA HAS HISTORICALLY taken an active interest in cases before the U.S. Supreme Court that will have an impact on prosecutors, and this year has been no exception. In a number of cases, the association has brought its voice to bear on behalf of all prosecutors by filing or joining in amicus curiae briefs.

Star Wars fans will remember a scene from The Empire Strikes Back, when Han Solo is about to take the Millennium Falcon to light speed, the hyperdrive fails, and Han protests, "It's not my fault!" Looking at some of the issues before the Supreme Court for this term, prosecutors might feel a little like Han--the defendant is seeking reversal for things that are not the prosecutor's Fault.

Two linked cases that highlight this phenomenon are Lafler v. Cooper and Missouri v. Frye. Both involve a problem with plea bargaining, and the Failing was by the defense attorney, not the prosecutor.

In Lafler, the defendant was charged with assault with intent to commit murder. The prosecutor made a plea offer for a Favorable sentence. Defense counsel mistakenly believed the prosecution could not prove its case and advised Lafler to reject the deal. The case went to trial, Lafler was convicted, and received a greater sentence. He complains his attorney was incompetent in evaluating the prosecution case.

Frye also involved a plea bargain offer. Frye was charged with DUI with three priors, a felony. The prosecutor offered a misdemeanor, with a deadline for accepting the deal. The defense attorney failed to communicate the offer to his client, the deadline passed, and the defendant wound up pleading guilty to a felony and receiving a three-year prison sentence.

In both Lafler and Frye, the failing of the defense attorney, not the prosecutor, is the claimed basis for relief. NDAA has joined in an amicus brief prepared by the Criminal Justice Legal Foundation, asserting that neither defendant should have his conviction reversed. The argument has two related components. First, while defense counsel may have fallen short in the plea bargaining process, there is no constitutional right to a plea bargain, so there can be no due process violation. Second, each defendant was found guilty through an admittedly reliable and constitutional process--Lafler through a jury trial and Frye through his guilty plea. A defendant found guilty in a constitutional, reliable manner should not be allowed to set that aside because of some shortcoming in plea bargaining.

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