Plea bargaining and the right to counsel at bail hearings.

• Author: Gerstein, Charlie

A couple million indigent defendants in this country face bail hearings each year, and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held on bail will plead guilty when faced with any deal that promises he will serve less time than he expects to wait in jail. Because a bad outcome at a bail hearing can prejudice the defendant in subsequent plea bargaining, bail is now a critical stage.

TABLE OF CONTENTS INTRODUCTION I. THE LINK BETWEEN PREJUDICE ANALYSIS AND CRITICAL STAGES A. Critical Stages: A General Prejudice Inquiry B. Strickland: A Specific Prejudice Inquiry C. Critical-Stage Analysis and Strickland Prejudice II. EXPANDING STRICKLAND'S PREJUDICE PRONG TO INCLUDE PLEA BARGAINS III. EXPANDING CRITICAL STAGES TO INCLUDE BAIL BECAUSE BAIL CAN PREJUDICE PLEA BARGAINS A. Bail Hearings' Prejudicial Effect on Plea Bargains 1. Attachment at a Bail Hearing 2. Bail Hearings' Potential to Prejudice Plea Bargains B. Critical-Stage Analysis After Cooper and Frye C. A Bail Hearing Is Now a Critical Stage IV. A NARROW BUT VALUABLE RIGHT A. Direct and Indirect Prejudice: Bail Is Unique B. The Broken Bail System CONCLUSION INTRODUCTION

Imagine a prosecution in Texas for, say, disorderly conduct. The facts of the case are simple: the defendant was arrested while waiting for a friend in the lobby of a housing project. The only issue in the case is legal: Did the defendant's conduct "tend[] to incite an immediate breach of the peace"? (1) The defendant is brought before a magistrate and, without counsel, held on bail that he cannot pay. A few days later, the prosecutor calls with a plea deal to time served. The defendant is constitutionally entitled to counsel in accepting or rejecting that plea deal, (2) but the prosecutor reminds him that appointing counsel can take quite a long time--and, don't forget, if he takes the deal, he gets out today. The defendant takes the deal without counsel, (3) although his conduct could not possibly have tended to incite a breach of the peace: there was no one else around.

When the defendant was brought before the magistrate and held on bail, was he denied the assistance of counsel at a critical stage of his proceedings?

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (4) But the defendant only actually gets a lawyer when two criteria are met. First, the right to counsel must have "attached." "Attachment" occurs at the first formal, adversarial proceeding against the defendant, even if that procedure does not involve a prosecutor. (5) Second, the proceeding at which the defendant seeks assistance of counsel must be a "critical stage" of the prosecution. (6) Critical stages are pretrial procedures so dangerous to the defendant, or so similar to a trial itself, that they require the presence of counsel to protect the defendant's trial rights. (7)

The Sixth Amendment right to counsel requires the effective assistance of counsel, as well as her mere presence, at all critical stages. For an attorney's performance to qualify as ineffective, it must be both constitutionally deficient and prejudicial. (8) The prejudice prong of the inquiry requires that the result in the case absent the attorney's errors and omissions would have been better for the defendant. (9) In two recent companion cases, Lafler v. Cooper (10) and Missouri v. Frye, (11) the Supreme Court held that a plea bargain is a "result" that can be the basis for an ineffective assistance of counsel claim: if your lawyer's deficient representation causes you to reject a plea bargain that you would have otherwise taken, and the actual result at trial is worse than what was offered during the plea bargain, your Sixth Amendment right to the effective assistance of counsel has been violated.

Among other adverse consequences, (12) a bad outcome at a bail hearing can force an indigent defendant to plead guilty. Many indigent defendants cannot post even minimal bail. (13) Defendants who are required to post bail that they cannot afford may end up pleading guilty to avoid waiting in jail. (14) If the sentence offered by the prosecutor in a plea deal is shorter than the expected wait for trial or bail review, (15) all but the most stubborn of defendants would plead guilty. For a defendant charged with a relatively minor offense, the bail hearing can be the main event; a bad outcome can seal his fate. Because the bail determination is likely unrelated to the defendant's culpability, its effect on his plea decision is prejudicial. (16) It does not cause him to plead guilty because he is guilty; it causes him to plead guilty because he has been held on bail.

Surprisingly, there is no federal right to appointed counsel for indigent defendants at bail hearings, (17) and most states do not appoint counsel at all in such hearings. (18) So most indigent defendants (who represent the overwhelming majority of criminal defendants in this country) (19) face bail hearings without counsel. But, according to a study in Baltimore, defendants with counsel are more than twice as likely to be released on their own recognizance. (20) And, when represented defendants are granted bail, it is on average around six hundred dollars less than what is set for unrepresented defendants. (21) Appointing counsel at bail hearings, then, will substantially reduce the amount of time a substantial number of indigent defendants spend in jail awaiting their trials. And that will cut down on the number of plea deals those defendants have to take just to get out of jail--regardless of their guilt or innocence.

The right to the presence of counsel and the right to her effective assistance are coterminous--if you get one, you get the other. The Constitution requires the presence of counsel at all stages that can prejudice the "outcome" of a criminal proceeding, and the Supreme Court recently held that plea bargains are protected "outcomes" for ineffective assistance of counsel purposes. So, if the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings with the potential to substantially prejudice those bargains.

This Note argues that a bail hearing is a critical stage because it can prejudice the outcome of a plea negotiation. Part I summarizes critical-stage jurisprudence and concludes that, because it is concerned with a stage's potential to affect the outcome of the criminal prosecution, critical-stage analysis is conceptually linked to the prejudice inquiry for an ineffective assistance of counsel claim. Part II explains that the Court has recently expanded ineffective assistance of counsel claims to include the loss of a favorable plea bargain. Part III argues that the Court should make bail hearings a critical stage because bail has the potential to irrevocably prejudice the outcome of a plea negotiation. This Part also argues that a bail hearing triggers the attachment of the right to counsel. Part IV addresses some possible concerns with labeling bail a critical stage and concludes that they are misplaced.

1. THE LINK BETWEEN PREJUDICE ANALYSIS AND CRITICAL STAGES

   Although the right to appointed counsel and the right to the effective assistance of that counsel are separate doctrinal areas of law, the two rights are conceptually linked and most likely coterminous. (22) This Part argues that critical-stage analysis (by which the right to counsel is determined) and the prejudice prong of Strickland v. Washington (23) (by which the right to effective assistance is enforced) should be analyzed similarly because they each ask the same essential question: Does the denial of a given right have the potential to work an unfair outcome for the defendant? Because of this link, a bail hearing's ability to prejudice a plea bargain makes it a critical stage. Section I.A asserts that all judicial inquiries into critical stages have been concerned with the potential of a stage to prejudice the trial. Section I.B argues that Strickland asks the same question; the only relevant difference is that Strickland asks the question in the context of a defendant's specific trial. Section I.C concludes that, since these questions are conceptually linked, courts should analyze them similarly.

   1. Critical Stages: A General Prejudice Inquiry

      Critical-stage analysis (24)--in all its incarnations--asks whether denying counsel at a given stage has the potential to work an unfair outcome at the ultimate criminal trial. It asks, hypothetically, considering the possible outcomes of the stage, whether that stage is sufficiently likely to produce results that derogate from trial rights. This question can be framed in two ways: whether counsel is necessary at the stage to secure the defendant's trial rights--as exemplified by United States v. Wade (25)--or whether counsel is necessary because the stage is sufficiently trial-like and tricky--as exemplified by United States v. Ash. (26) Both methods, however, are concerned with derogating from the ultimate right: a fair trial.

      The Wade method obviously considers the effects at the ultimate trial: it simply asks if the "stage of the prosecution, [whether] formal or informal, in court or out, [is one] where counsel's absence might derogate from the accused's right to a fair trial." (27) The critical inquiry under Wade is whether the stage is one that may "settle the accused's fate" and render...