on November 25, 2011
by Brandon R. Cogswell

Effective Assistance of Counsel as Good Customer Service

On October 31, 2011, the U.S. Supreme Court heard oral arguments on two cases, Lafler v. Cooper and Missouri v. Frye.  I thought it fitting to talk about these two cases as I think they present the most interesting constitutional criminal law issue I’ve heard in a while and they present a fitting reminder for lawyers and clients.

We’ve all heard it on Law and Order and every other cop show, “You have a right to an attorney, if you cannot afford an attorney, one will be appointed for you. . .”  Typically right after this statement the aggressive police officer gets a full confession closing up all plot lines of the show in a very neat 40 minute format.  In real life if you are charged with a crime, or placed under arrest as a suspect in a crime, you have a constitutional right to an attorney.  Even better, you have a constitutional right to an effective attorney.  Strickland v. Washington, 466 US 668, set forth the test used to determine if an attorney was ineffective at the trial stage or the sentencing stage.  The defendant must show that his/her attorney was so bad that the representation deprived defendant of a fair trial or proceeding.  This application was extended to plea bargains in Hill v. Lockhart, 474 US 52, in which a defendant would have to show that, but for an ineffective lawyer, the defendant would have gone to trial instead of pleading guilty.  The two new cases attempt to take the constitutional right to an effective lawyer and broaden it even more.

Cooper and Frye ask the question, “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargaining negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?”

In Lafler v. Cooper, Cooper faced assault with intent to murder charges in Michigan.  His attorney, based on a misunderstanding of the law, advised him to reject a plea offer and proceed to trial.  Cooper was convicted at trial, receiving a more severe sentence than he would have received if he took a plea.  In his appeal, Cooper says that he was provided with ineffective assistance of counsel because if he was advised correctly he would have taken the plea offer.

In Missouri v. Frye, Frye was charged with felony driving under suspension.  Frye’s attorney failed to notify him of a favorable plea offer.  As a result, Frye entered a guilty plea to the original charge.  The Court sentenced Frye to three years in prison.  Three years is a really long time to go to prison for driving without a license but that’s for another blog post.  Frye appealed the conviction arguing that he would have accepted the plea offer if he knew about it.

Challenging a conviction based on grounds of ineffective assistance of counsel could go up in smoke when the U.S. Supreme Court hands down the opinions on these two cases.  Cooper and Frye were both denied a constitutional right to an effective attorney, but they were given constitutional protections everywhere else. Cooper was provided a fair trial.  Frye was sentenced according to Missouri sentencing law.  Can they now take another bite at the apple? If so, what are the lower courts going to do different?  What is the prosecutor going to do different now that he knows he has the evidence to convict at trial?

I think there is a moral to each of these cases that all attorneys probably know and agree with but it never hurts to say it again.  Be a good lawyer, know the law you are practicing and provide your clients with information that allows them to make informed decisions.  Clients, make sure your lawyer has these qualities.


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