Counsel's Role in Bargaining for Trials

• Author: Gregory M. Gilchrist
• Position: Associate Professor of Law, University of Toledo
• Pages: 1979-1998

1979

Counsel’s Role in Bargaining for Trials

Gregory M. Gilchrist

ABSTRACT: This Essay examines how counsel might use plea bargaining

to mitigate the harm of plea bargaining: rather than bargaining only for

pleas, counsel should bargain for trials.

I

NTRODUCTION .................................................................................... 1980

I. TRIAL BARGAINING .............................................................................. 1983

A. THE GUILTY PLEA .......................................................................... 1983

B. PLEA BARGAINING .......................................................................... 1985

C. TRIAL BARGAINING ........................................................................ 1987

II. TRIAL BARGAINS DEFENSE COUNSEL MIGHT PROPOSE ....................... 1988

A. TIME-LIMITED OR WITNESS-LIMITED TRIALS ................................... 1988

B. REDUCED JURY SIZE ........................................................................ 1989

C. THE DEFENDANT’S TESTIMONY ....................................................... 1991

D. THE VALUE OF SHORTER, SIMPLER, LESS UNCERTAIN TRIALS ........... 1992

III. PRACTICAL CONCERNS WITH TRIAL BARGAINING ................................ 1996

A. COUNSEL CANNOT BE EXPECTED TO DEVELOP TRIAL BARGAINS ....... 1996

B. PROSECUTORS WILL NOT BARGAIN FOR TRIALS ............................... 1997

CONCLUSION ....................................................................................... 1998

 Associate Professor of Law, University of Tol edo. A.B. Stanford University; J.D. Columbia

Law School. I would like to thank the organizers and participants associated with the 2013 Fifty

Years of Gideon Symposium at the University of Iowa College of Law. Many people have helped me

on this project, and I am particularly grateful for comments and guidance from Kara Bruce, Brad

Colbert, Jelani Exum, Brian Gallini, Todd Haugh, Brooks H olland, Bryan Lammon, Kate Levine,

Chris Lund, Nancy Marder, Susan Martyn, Geoff Rapp, and Rebecca Zietlow.

1980 IOWA LAW REVIEW [Vol. 99:1979

INTRODUCTION

Plea bargaining defines our criminal-justice system and counsel’s role in

most criminal cases. Forty-nine years after Gideon,1 the Supreme Court ruled

that a defendant’s right to “effective counsel during plea negotiations,” can

be violated where counsel’s deficient performance costs the defendant a

favorable plea deal.2 In reaching this conclusion, the Court quoted

Professors Scott and Stuntz approvingly: “[Plea bargaining] is not some

adjunct to the criminal justice system; it is the criminal justice system.”3 The

Frye and Lafler decisions implicitly reaffirm two principles: first, effective

counsel during bargaining is necessary for a fair process; second, plea

bargaining is a significant part of the actual process.4

Guilty pleas resolve almost all criminal cases. In 2012, in federal court,

ninety-seven percent of all criminal convictions resulted from guilty pleas.5

The numbers are comparable in state courts.6 In almost all cases, those

guilty pleas are secured through bargaining.

The fiftieth anniversary of Gideon, this Symposium, and the Frye and

Lafler decisions offer an auspicious moment to consider the role of counsel

in plea bargaining, and how counsel might work to limit plea bargaining.

Professor Stuntz identified “Gideon’s requirement that indigent

defendants receive counsel” as one of a very few doctrines in criminal

procedure that enjoys near universal support.7 The other doctrine he

identified as enjoying near universal support is “that the ratio of guilty

acquittals to innocent convictions should be high.”8 Plea bargaining

undermines the latter of these doctrines because it has a tendency to shift

the balance between wrongful acquittals and wrongful convictions.9 But the

1. Gideon v. Wainwright, 372 U.S. 335 (1963).

2. Missouri v. Frye, 132 S. Ct. 1399, 1407–08 (2012).

3. Id. at 1407 (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract,

101 YALE L.J. 1909, 1912 (1992)). It is worth considerin g the massive shift over five decades

that led to this recognition by the Court. As recently as 1965, the Supreme Court wrote: “Trial

by jury has been established by the Constitution as the ‘normal and . . . preferable mode of

disposing of issues of fact in criminal cases.’” Singer v. United States, 380 U.S. 24, 35 (1965)

(alteration in original) (quoting Patton v. United States, 281 U.S. 276, 312 (1930)).

4. See Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Frye, 132 S. Ct. at 1407; see also

Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 58 (1985).

5. See U.S. DEP’T OF JUSTICE, UNI TED STATES ATTORNEYS’ ANNUAL STATISTICAL REPORT,

FISCAL YEAR 2012, at 8, available at http://www.justice.gov/usao/reading_room/reports/

asr2012/12statrpt.pdf. (“During Fiscal Year 2012, a total of 78,647, or 97 percent, of all

convicted defendants pled guilty prior to or during trial.”).

6. See Lafler, 132 S. Ct. at 1388 (“[N]inety-four percent of state convictions are the result

of guilty pleas.”).

7. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal

Justice, 107 YALE L.J. 1, 13 (1997).

8. Id.

9. See Lafler, 132 S. Ct. at 1397 (Scalia, J., dissenting) (plea bargaining “presents grave

risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid