When Legal Advice is Really Bad…

Roughly 95 percent of all criminal cases in the United States are resolved by plea in which the defendant agrees to plead guilty, usually in exchange for some benefit – a reduction in charges, a reduced sentence, etc. – given by the state.

[The reason so many cases are resolved by plea in the U.S. is complex, but essentially is required in order for our adversarial legal system to continue functioning. In Wake County, there are some 15,000 felony cases pending. Only a fraction – maybe 5 or 6 – can be resolved by trial each week. If every case were to go to trial, it would take hundreds of years just to get through the current backlog of cases, let alone deal with new criminal charges.]

In spite of the very large number of cases that are resolved by guilty plea, the United States Supreme Court has been relatively silent about the kind of protections that are required when a plea is offered. For instance, in many European countries, the government may not offer a plea deal that is too lenient. This is to keep the government from overcharging the defendant, and then offering a comparatively light, although still harsh, plea deal in the expectation that the defendant will take it given what he could get at trial.

In the United States, the plea offer is almost entirely within the prosecutor’s discretion. A judge may occasionally balk at accepting the deal. Or certain terms may be invalid as a matter of constitutional law – for instance a prosecutor may not require the defendant to attend church as that would interfere with the defendant’s First Amendment rights.

In order for a plea to be accepted, a judge must find that the Defendant has not been coerced (i.e., in person has not be promised something other than what’s in the plea agreement or threatened in any way to take the plea), that the Defendant is competent to stand trial and not under the influence of any impairing substances, that the person knowingly waives his rights to a jury trial, and that the person is satisfied with his lawyer’s legal advice.

The Supreme Court has also acknowledged other rights as part of a plea agreement. For instance, a plea agreement is like a contract, and a prosecutor may be bound to follow-through on his agreement. In addition, the Supreme Court in Padilla v. Kentucky ruled that when a defendant was not advised of the immigration consequences of a plea deal, the defendant’s rights to competent legal advice were violated.

But aside from these minimal protections, the Supreme Court has steered clear of reviewing the terms under which a plea offer is made or accepted.

But what happens when a lawyer’s legal advice is so bad that the client rejects a plea offer and ends up with a much worse sentence?

On Monday the Supreme Court heard arguments in two cases involving plea deals that were rejected on what was indisputably bad advice.

Prosecutors in the cases, supported by the federal government and many states, say the Sixth Amendment right to counsel is meant only to ensure a fair trial. No one, they say, is entitled to a plea bargain. Prosecutors may not be forced to offer them and may withdraw them even after they are accepted. Even when the two sides agree, judges may refuse to allow them.

In one case, the defendant was told by his attorney that he should reject the plea because he would never be convicted at trial. The lawyer told the defendant that, because all four bullets struck the victim below the waist, the state could not prove an intent to kill. Based on that advice, the defendant rejected a plea deal that would’ve had him in custody for 4 to 7 years, and was sentenced after he was convicted at trial to 15 to 30 years.

In a second case, the defendant’s lawyer was informed of a plea offer, but that offer was never conveyed to the defendant. As a result, the plea offer expired and the defendant was sentenced to 3 years in jail, instead of 3 months.

Prosecutors, while admitting that these instances reveal ineffective assistance of counsel, say that to compel them to offer the initial plea even after the defendant goes to trial and loses makes the whole notion of plea deals absurd since everyone would gamble and go to trial and, if convicted, demand the original plea deal.

Defense attorneys argue that some minimal protections must be in place, especially in a system where plea deals are so prevalent, to protect individuals against bad advice and life-long consequences.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.