Frye and Lafler: New Rights or Old Responsibilities

Publication year2014
Frye and Lafler: New Rights or Old Responsibilities

Vol. 75 No. 3 Pg. 183

The Alabama Lawyer

MAY, 2014
By John J. Davis and Barr D. Younker, Jr.

Both the legal profession and the public have greatly anticipated several recent decisions of the United States Supreme Court. This year's term saw great interest in issues regarding gay marriage and the Voting Rights Act of 1965, but two decisions from the Court's 2011-12 term, Missouri v. Frye and Lafler v. Cooper1 , marked what some have called a dramatic shift in the Court's attention to the performance of criminal defense attorneys outside the courtroom. In both cases, the Supreme Court addressed the issue of ineffective assistance of counsel during the plea bargaining process. While many have proclaimed this to be a dramatic change in the Court's focus on the performance of counsel, the Rules of Professional Responsibility and the ABA standards that address the representation of criminal defendants already require professional and effective assistance of counsel.

The Strickland v. Washington Standard for Reviewing Ineffective Assistance of Counsel Claims

On September 20, 1976, David Leroy Washington launched a week-long crime spree in the state of Florida. Washington's crime spree left three people dead, several maimed and one victim in a permanent comatose, vegetative state. Remarkably, Washington, who was caught soon after his final crime, was brought to trial within two months of his surrender to the police. Washington pleaded guilty to three charges of capital murder as well as several other crimes. On December 6, 1976, Washington was sentenced to die for his crimes.

What began with this simple murder conviction later led to the most important U.S. Supreme Court case regarding the standard to be applied in cases involving claims of ineffective assistance of counsel-Strickland v. Washington2 (1984). The standard created in Strickland stood immutable for 26 years. However, in 2010, the Supreme Court rendered a series of decisions that modified the Strickland standard to include matters "collateral" to the adjudication of guilt in criminal cases. Some legal observers believe that we now have entered a "slippery slope" where the potential scope of ineffective assistance of counsel claims has grown into something that would be unrecognizable to the framers of the U.S. Constitution.

Background: The Sixth Amendment Right to Counsel

The Sixth Amendment to the U.S. Constitution states:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." (emphasis added)

The words in bold are generally referred to as the "Assistance of Counsel Clause" of the Sixth Amendment. In United States v. Van Duzee (1891)3 , the Supreme Court articulated that the original understanding of the "Assistance of Counsel Clause" was that the defendant had a right to employ counsel or to obtain the voluntary services of counsel. The Court, in Gideon v. Wainright (1963),4 extended the original interpretation of the Sixth Amendment to include the provision of legal services to indigent defendants. In McMann v. Richardson (1970)5 , the Supreme Court extended the reach of the clause further and articulated that the Sixth Amendment "right to counsel is the right to the effective assistance of counsel." As such, "ineffective assistance of counsel" occurs when the performance of the defendant's attorney was so poor that it deprived the client of the right guaranteed under the clause. The Supreme Court cautioned, however, that with respect to advice, the issue of whether the defense counsel provided adequate representation depends not on whether a court would consider the advice right or wrong, but on whether that advice was "within the range of competence demanded of attorneys in criminal cases."6

The Supreme Court, in an opinion written by Justice O'Connor, found that counsel's conduct in Washington at and before the defendant's sentencing hearing was not unreasonable and, even assuming it was unreasonable, respondent suffered insufficient prejudice to warrant a setting aside of the death sentence.7 The Court thus established, for the first time, a two-pronged test8 for finding the right to effective assistance of counsel has been denied:

1. Counsel's performance must be deficient, requiring a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed defendant by the Sixed Amendment. That is, did counsel's representation fall "below an objective standard of reasonableness."9

2. The deficient performance prejudiced the defense, requiring a showing that, but for counsel's errors, there is a "reasonable probability" that the result of the proceeding would have differed.10

Further, the Court stated, "The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."11 It is within the paradigm of the "proper functioning of the adversarial process" where the Strickland standard lies.

The Court has historically limited the Sixth Amendment to effectiveness directly related to defense against prosecution of the charged offense. With regard to the competence of legal advice, the Court has limited the inquiry to advice at trial, post-indictment interrogations and lineups12 , and in general advice at all phases of the prosecution.13

The Court, prior to 2010, did not extend the constitutionality regarding advice beyond those matters germane to the criminal prosecution at hand, meaning "the sentence that the plea will produce, the higher sentence that conviction after trial might entail and the chances of such a conviction."14 "Defense" was further interpreted to mean "defense at trial, not defense in relation to other objectives that may be important to the accused."15

Padilla: A New Fork in the Road

The Supreme Court followed up Strickland with its decision in Hill v. Lockhart (1985).16 In Lockhart, the defendant pleaded guilty in an Arkansas court to charges of first-degree murder and theft of property. Later, the defendant filed a habeas corpus petition alleging that his guilty plea was involuntary because his counsel had misinformed him that, if he pleaded guilty, he would become eligible for parole after serving a third of his sentence, when, in fact, parole eligibility would not accrue until the defendant, as a "second offender," had served one-half of his sentence. The Supreme Court found that it was unnecessary to determine whether erroneous advice by counsel as to parole eligibility is constitutionally ineffective assistance of counsel, finding that the defendant, as to the second prong (prejudice) under Strickland, failed to allege that had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial.17

There was nothing inconsistent with the Court's ruling in Lockhart in light of Strickland. Simply put, the second prong of the test was not pleaded sufficiently by the defendant and, as such, ineffective assistance of counsel was not found. However, the Court's implication that the "erroneous advice by counsel as to parole eligibility" might amount to ineffective assistance of counsel (had prejudice been alleged) foreshadowed a willingness by the Court to consider in future cases the competency of advice in matters "collateral" to the "proper functioning of the adversarial process."

In 2010, the U.S. Supreme Court expanded the reach of ineffective assistance of counsel claims with a decision in Padilla v. Kentucky.18 Padilla involved a lawful permanent resident who plead guilty to drug distribution charges in Kentucky. While counsel's performance with regard to the adjudication of guilt phase of the case or with regard to advice to his client regarding the direct consequence of a guilty plea were not faulted, the Supreme Court found that counsel's failure to properly inform the defendant of the "collateral" consequences of a conviction, in that case, the risk of deportation, qualified as ineffective assistance of counsel.

Frye and Lafler: The Court Shifts Its Focus outside of The Courtroom

On March 21, 2012, the Supreme Court issued a pair of decisions that further expanded the right to effective assistance of counsel and, as one observer put it, "[l]ike Rip Van Winkle, has at last awoken from its long slumber and sees the vast field it has left all but...

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