Putting plea bargaining on the record.

• Author: Mallord, Joel

INTRODUCTION I. THE LEGAL BACKGROUND OF PLEA BARGAINING AND INEFFECTIVE ASSISTANCE OF COUNSEL A. Ineffective Assistance of Counsel B. Ineffective Assistance in Plea Bargaining II. LAFLER, FRYE, AND THE AFTERMATH A. The Lafler and Frye Decisions B. The Landscape After Lafler and Frye 1. The He-said/she-said Phenomenon 2. Deference to the Strategic Conduct of the Defense Lawyer 3. Evidentiary Difficulties in the Prejudice Prong of the Strickland Test C. Is This a Real Problem? III. THE DUTIES OF DEFENSE COUNSEL IN PLEA BARGAINING A. Investigation B. Negotiation C. Client Communication IV. JUSTIFYING A NEW RECORD A. The Duty to Preserve Issues for Appeal B. The Duty of Zealous Advocacy C. Justifying the Burden on Defense Lawyers D. Documentation as Mistake-Proofing V. ALTERNATIVE SOLUTIONS A. Procedural Change 1. Likelihood of Relief on Valid Claims 2. Likelihood of Relief on Invalid Claims 3. Effect on Justice System Resources B. Shifting the Burden 1. Likelihood of Relief on Valid Claims 2. Likelihood of Relief on Invalid Claims 3. Effect on Justice System Resources 4. Likelihood of Implementation VI. THE RECORD A. The Contents of the Record B. The Courts' Use of the Record C. What Happens When the Record Is Inaccurate? CONCLUSION INTRODUCTION

More than a decade ago, Rolando Stockton rejected a plea bargain that came with a ten-year prison sentence, opting instead to take his chances at trial. (1) The trial went badly. After being found guilty on several drug and firearm charges, Stockton received a forty-year prison sentence. (2) From an objective point of view, Stockton should have taken the deal; rejecting it cost him thirty years of freedom. In postconviction proceedings, Stockton proffered a reason for his poor judgment: his lawyer failed to disclose to him the maximum sentence he faced at trial and the advantages of the ten-year deal. (3) In spite of his admittedly hazy memory of the events, the lawyer disagreed, claiming he told Stockton that the plea deal was a "good offer." (4) Without clear evidence, the reviewing court sided with Stockton's lawyer. (5) On that finding, Stockton lost his claim, and he is still serving his initial sentence today. (6)

Under the recent Supreme Court decisions in Lafler v. Cooper (7) and Missouri v. Frye (8), defense counsel has a duty to inform and reasonably advise clients about plea offers from the prosecution, so that defendants do not forego favorable plea bargains due to the ineffective assistance of their counsel. Yet the story above demonstrates a fundamental problem with these new duties: the lack of a record of the plea bargaining process makes them unenforceable. Without such a record, the defendants, who bear the burden of proof in Sixth Amendment ineffective assistance of counsel claims, (9) have no evidence to support claims of defective advice. Their hopes thus rest on the cooperation of the very lawyers they accuse of being ineffective. When combined with the other difficulties inherent in establishing an ineffective assistance of counsel claim, this problem renders the new right toothless.

In this Comment, I propose that the criminal defense bar adopt a practice of recording the plea bargaining process in order to better protect defendants' Sixth Amendment rights. I begin in Part I with a brief background of Sixth Amendment right-to-counsel jurisprudence, the plea bargaining process, and the evolution of the Supreme Court's views on these topics. More specifically, Part I illustrates how the Court has gradually expanded the right to counsel, acknowledged the normative role of plea bargaining in criminal justice, and moved away from the notion that the criminal justice system's only guarantee is the right to a fair trial.

In Part II, I review Lafler, Frye, and the application of these cases in the lower courts. That review illustrates the evidentiary problems confronting defendants who claim ineffective assistance of counsel in the plea bargaining process. More pointedly, the review shows how defendants asserting such claims are often at the mercy of their defense attorneys, whose accounts of disputed events typically determine how the cases are decided.

In Part III, I summarize the basic functions of defense counsel during the plea bargaining process, by consulting the standards set forth by the American Bar Association (ABA) (10) and the National Legal Aid & Defender Association. (11) Ultimately, I suggest that these standards should be the baseline against which courts measure the adequacy of counsel's assistance in Sixth Amendment claims.

I argue in Part IV that requiring criminal defense lawyers to document plea bargain offers and their related advice is the best solution to this evidentiary problem. Support for my proposal is found in defense lawyers' basic duties to preserve issues for appeal and to advocate zealously for their clients. Such a record would not only facilitate appellate court review of ineffective assistance of counsel claims, but would also reduce the likelihood of defense lawyers committing errors in the first place and, as a result, would reduce the number of ineffective assistance of counsel claims litigated. Although the proposed record would add to the criminal defense counsel's workload, it would be worthwhile when properly tailored to high-risk cases. In Part V, I analyze two other possible solutions and conclude that the proposed record is superior to both. Finally, in Part VI, I provide a brief proposal of the record's contents and discuss how courts may use it in practice.

1. THE LEGAL BACKGROUND OF PLEA BARGAINING AND INEFFECTIVE ASSISTANCE OF COUNSEL

   1. Ineffective Assistance of Counsel

      For much of the country's history, the Sixth Amendment right to counsel only protected criminal defendants' right to hire attorneys if they so desired. (12) These rights were expanded in the landmark case Gideon v. Wainwright, in which the Court held that the Sixth Amendment guaranteed government-provided counsel to indigent felony defendants. (13) But the early right to counsel came with no guarantees as to the quality of representation.

      In the Gideon era, the Court granted relief only where counsel was so deficient as to make the trial a "farce and mockery of justice." (14) Successful litigation of these claims was predictably rare. Like much of the expansion of defendants' rights, the relaxation of this standard started in the lower courts. (15) By the early 1980s, many circuits had already adopted a reasonableness test for the assistance of counsel. The Supreme Court followed suit with its decision in Strickland v. Washington. (16)

      Strickland set out the modern two-pronged test for ineffective assistance of counsel claims. First, "the defendant must show that counsel's performance was deficient." (17) The Court made it clear that this prong would be difficult to establish, noting that "[j]udicial scrutiny of counsel's performance must be highly deferential." (18) The Court held that a defendant could only satisfy this prong by showing that "counsel's representation fell below an objective standard of reasonableness," measured by prevailing professional norms and professional standards put forth by the ABA and other organizations. (19) Any conduct that may be justified as strategic in nature would almost certainly fail to satisfy this demanding standard. (20)

      Second, "the defendant must show that the deficient performance prejudiced the defense." (21) This standard requires a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (22)

      Since the Strickland decision, claims of ineffective assistance of counsel have become the most common ground for relief sought in habeas petitions. One 2007 study found in a random sample that eighty-one percent of habeas petitions in capital cases and fifty percent in noncapital cases included at least one claim of ineffective assistance of counsel. (23) By extrapolation, the study indicated that over ten thousand habeas petitions raise ineffective assistance of counsel claims each year. (24) Yet only 0.3 % of the noncapital petitions resulted in an evidentiary hearing. (25) Even more alarming, only one of the 2384 noncapital cases in the sample group obtained relief on an ineffective assistance of counsel claim. (26) These numbers reflect that an ineffective assistance of counsel claim is, at best, only a tiny glimmer of hope for the convicted.

   2. Ineffective Assistance in Plea Bargaining

      Plea bargains account for approximately ninety-five percent of criminal convictions. (27) Typically, plea bargains are agreements between prosecutors and defendants through which defendants receive reductions in punishment and prosecutors save the time and resources required to try cases. Prosecutors enjoy a great deal of discretion over the charges they bring and the sentences they recommend. Specifically, as part of the plea bargaining process, the prosecutor may offer to: (a) not bring additional charges, or move to dismiss charges already filed; (b) recommend, or agree not to oppose, the defendant's request that a particular sentence or sentencing range is appropriate, or that a particular Sentencing Guidelines provision, policy statement, or sentencing factor does or does not apply; or (c) agree that a particular sentence or sentencing range is appropriate, or that a particular Sentencing Guidelines provision, policy statement, or sentencing factor does or does not apply. (28) Defendants have fewer bargaining chips, but they may, for instance, agree to cooperate against other criminal suspects in exchange for a more favorable deal. (29) The parties may strike a plea agreement at nearly any stage during the course of criminal proceedings, from before the filing of charges through jury deliberations. (30)

      Traditionally, courts and academics paid little attention to the plea bargaining process, instead trusting that the "shadow of...