Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining

• Author: Peter A. Joy & Rodney J. Uphoff
• Position: Henry Hitchcock Professor of Law, Washington University School of Law/Elwood Thomas Missouri Endowed Professor of Law, University of Missouri School of Law
• Pages: 2103-2130

Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining Peter A. Joy  & Rodney J. Uphoff  INTRODUCTION .................................................................................... 2104 I. COMPETENT REPRESENTATION DURING PLEA BARGAINING ................ 2107 II. THE LIMITED ASSISTANCE OF COUNSEL............................................... 2112 III. WAIVERS OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ............... 2117 A. C ASE L AW ON W AIVERS OF I NEFFECTIVE A SSISTANCE OF C OUNSEL C LAIMS .......................................................................................... 2117 B. T HE E THICS OF W AIVERS OF I NEFFECTIVE A SSISTANCE OF C OUNSEL C LAIMS .......................................................................................... 2124 CONCLUSION ....................................................................................... 2128  Henry Hitchcock Professor of Law, Washington University School of Law.  Elwood Thomas Missouri Endowed Professor of Law, University of Missouri School of Law. We thank James Tomkovicz for inviting us to participate in the Iowa Law School Symposium, for which this Essay was written, and the Iowa Law Review editors and staff for organizing and hosting the Symposium. We also thank Kevin McMunigal, with whom Peter has explored some of these issues for an ethics column in ABA Criminal Justice , and the participants at the University of Denver Sturm College of Law Faculty Workshop for their helpful comments on an earlier draft of this essay. 2104 IOWA LAW REVIEW [Vol. 99:2103 INTRODUCTION In a trio of recent cases, Padilla v. Kentucky , 1 Missouri v. Frye , 2 and Lafler v. Cooper , 3 the U.S. Supreme Court focused its attention on defense counsel’s pivotal role during the plea bargaining process. The Court recognized long ago that a criminal defendant was entitled to effective assistance of counsel at the plea stage. 4 Prior to Cooper , however, the Court had not found that defense counsel’s advice to turn down a plea bargain could constitute ineffective assistance. 5 Likewise, prior to Padilla , the Court had not overturned a guilty plea because defense counsel failed to alert a defendant to a significant consequence—deportation—that followed from that plea. 6 Before Frye , it had never declared that “defense counsel did not render the effective assistance the Constitution requires” because defense counsel had neglected to communicate an earlier favorable plea offer. 7 To Justice Scalia, the decision in Cooper “elevates plea bargaining from a necessary evil to a constitutional entitlement,” “upends decades of our cases,” “and opens a whole new boutique of constitutional jurisprudence.” 8 Cooper , Frye , and Padilla , however, do not portend major changes in the nation’s criminal justice systems. Rather, these cases largely represent a rejection of Scalia’s unduly narrow view of defense counsel’s role and his belief that a voluntary guilty plea or a decision to reject a plea offer should be immune from an ineffective assistance claim, even when the defendant’s decision was based on counsel’s professionally deficient advice. Given that “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant,” 9 the Court’s willingness under certain circumstances to find that a defense counsel’s professionally unsound plea bargaining performance constitutes ineffective assistance of counsel is hardly remarkable. Indeed, few commentators see these decisions as signaling a major shift in the Court’s general reluctance to find that a criminal defense lawyer’s representation was both professionally unreasonable and prejudicial. 10 This 1. Padilla v. Kentucky, 559 U.S. 356 (2010). 2. Missouri v. Frye, 132 S. Ct. 1399 (2012). 3. Lafler v. Cooper, 132 S. Ct. 1376 (2012). 4. McMann v. Richardson, 397 U.S. 759, 772 (1970) (holding that a guilty plea is not “subject to collateral attack . . . unless the defendant was incompetently advised by his attorney”); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (holding that the same test for determining ineffective assistance of counsel at trial “seems to us applicable to ineffective-assistance claims arising out of the plea process”). 5 . Cooper , 132 S. Ct. at 1384–91. 6 . Padilla , 559 U.S. at 365–66. 7 . Frye , 132 S. Ct. at 1408. 8. Cooper , 132 S. Ct. at 1397–98 (Scalia, J., dissenting). 9. Frye , 132 S. Ct. at 1407. 10. See, e.g. , Bruce A. Green, The Right to Plea Bargain with Competent Counsel After Cooper and Frye : Is the Supreme Court Making the Ordinary Criminal Process “Too Long, Too Expensive, and 2014] EFFECTIVE ASSISTANCE OF COUNSEL IN PLEA BARGAINING 2105 is largely because of the deferential nature of the ineffective assistance of counsel test set forth in Strickland v. Washington . 11 As Justice Stevens noted in Padilla , “[s]urmounting Strickland ’s high bar is never an easy task.” 12 Unquestionably, when judging the performance of defense counsel in negotiating a plea, the Court will apply a strong presumption that counsel’s performance was reasonable, give substantial deference to counsel’s judgment, and avoid second guessing counsel’s nuanced strategic calls. 13 As Justice Stevens confidently proclaimed in Padilla , “[w]e should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty.” 14 Given the woefully inadequate advice provided to many defendants by indigent defenders who lack the time or resources to adequately investigate, analyze, or prepare the defendant’s case, such a sweeping presumption is unwarranted. 15 If the Court truly intends the right to effective counsel at the plea bargaining stage to be meaningful, it cannot continue to ignore the systemic features that render this right largely meaningless for many defendants. It must be willing to provide relief to those defendants who suffer prejudice because of counsel’s deficient plea bargaining performance. As the Court reiterated in Padilla , criminal defendants ought not be “left to the ‘mercies of incompetent counsel.’” 16 The troubling practice of some prosecutors who demand that defendants waive ineffective assistance of counsel claims as a condition of a negotiated plea, however, does just that. In essence, such a practice nullifies the right to effective assistance of counsel at the plea stage by leaving the accused represented by incompetent counsel without any recourse once the defendant enters a plea. 17 Unpredictable . . . in Pursuit of Perfect Justice”? , 51 DUQ. L. REV. 735, 766 (2013) (“ Cooper and Frye did little more than preserve and reinforce the status quo.”). 11. Strickland v. Washington, 466 U.S. 668, 687–89 (1984). 12 . Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (referring to the two-part ineffective assistance of counsel standard set forth in Strickland , 466 U.S. at 689). That bar is especially difficult to overcome given the “doubly deferential” standard of review of ineffective assistance of counsel claims to be afforded state court decisions by federal judges. Burt v. Titlow, 134 S. Ct. 10, 13 (2013). 13. See Premo v. Moore, 131 S. Ct. 733, 739–42 (2011). 14 . Padilla , 559 U.S. at 372. 15. For two of a host of articles decrying the extent to which Strickland ’s ineffective assistance of counsel standard operates to deny many indigent defendants the competent representation promised by Gideon , see Erwin Chemerinsky, Lessons from Gideon, 122 YALE L.J. 2676 (2013) and David Cole, Gideon v. Wainwright and Strickland v. Washington : Broken Promises , in CRIMINAL PROCEDURE STORIES 101 (Carol S. Steiker ed., 2006). For an extended look at the well-documented deficient representation that many indigent defendants and the working poor receive, and the pressure that inadequate lawyering brings to bear on clients, especially the innocent, considering a plea, see Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem? , 2006 WIS. L. REV. 739, 748–64, 779–82, 796–802. 16. Padilla , 559 U.S. at 374 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). 17. In this Essay we primarily focus on express waivers of ineffective assistance of counsel claims. Some prosecutors require broadly worded waivers that purport to waive any and all 2106 IOWA LAW REVIEW [Vol. 99:2103 By its very nature, a plea of guilty involves the defendant waiving certain constitutional rights such as the right to a trial before a judge or jury, to confront and cross-examine witnesses, to call witnesses to testify on one’s behalf, to remain silent or to testify, and to require the government to prove guilt beyond a reasonable doubt. In addition to waiving these trial rights, prosecutors have long required additional waiver of the right to file a direct appeal of the conviction and sentence. As long as waivers of these important rights are voluntary, knowing and intelligent, courts have consistently upheld such waivers, 18 because the waiver of trial and appeal rights promotes finality and conserves prosecutorial and judicial resources. Increasingly, though, prosecutors have enlarged the scope of such waivers to include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye . Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved. Waivers of ineffective assistance of counsel claims pose both legal and ethical issues. Legally, the waivers serve to undermine a defendant’s due process rights—recognized by the Gideon 19 Court—by requiring the defendant not only to waive what is unknown to them at the time of waiver, but to do so even...