By Genny Ngai, J.D. Candidate

One of the more interesting issues the Supreme Court will address this term arises in Lafler v. Cooper. There, the question is what happens when an attorney advises his criminal client to reject a favorable plea based on an incorrect understanding of the law and his client is then sentenced to a harsher sentence after a fair trial? The Sixth Amendment test for ineffective counsel is obviously of critical importance here, but what caught my eye was the second question that the Supreme Court directed the parties to brief after granting certiorari. The Court specifically asked the parties to determine what remedy, if any, should be provided for the counsel’s performance during the plea bargaining stage if the defendant was later convicted based on constitutionally adequate procedures.[1]  

Among other charges, the respondent, Anthony Cooper, was charged with Assault with Intent to Murder for shooting Kali Mundy and inflicting life-threatening injuries.[2] Although Cooper had aimed the gun at Mundy’s head, the bullets ended up hitting her in the buttocks and thighs.[3] After the preliminary hearings, the prosecutor communicated an initial plea offer to Cooper’s attorney that allowed Cooper to plead guilty to assault with intent to murder and face a minimum sentence of 51 to 85 years imprisonment.[4] Cooper testified that he wanted to plead guilty but that his attorney advised him not to take the deal.[5] Cooper’s attorney informed him that because the victim was shot below the waist, the government could not prove an assault with intent to commit murder charge.[6] The prosecutor later offered a second plea deal of a minimum sentence of 126 to 210 months but Cooper again rejected the plea based on his attorney’s advice.[7] The case went to trial and the jury found Cooper guilty on all crimes charged.[8] He was sentenced to 185 to 360 months of imprisonment.[9]

In Lafler, the Sixth Circuit relied on the Sixth Amendment ineffective counsel analysis adopted in Strickland v. Washington to find that Cooper’s counsel was “obviously” deficient and prejudicial to the proceedings by telling his client that it was impossible for the government to prove the charge based on the location of the victim’s wounds.[10] The Sixth Circuit noted that because the Strickland analysis applied equally at the plea bargaining stage as well as during trial, Cooper was essentially deprived of his constitutional rights.[11] More notably, the Court affirmed the lower court’s determination of remedies, finding that the state is either required to offer Cooper his original plea sentence of 51 to 85 months or release him from custody.[12] A new trial would not be appropriate because it does not “restore him to the position in which he would have been had the deprivation not occurred; namely, serving a sentence for 15 to 25 years."[13]

The Sixth Circuit’s decision makes sense. Plea bargaining is an essential part of our judicial system and the Sixth Amendment guarantee of effective counsel should apply when negotiations during that stage are so outcome determinative. As Professor Jenny Roberts notes, trials are not the norm and clients need to have the correct information during all parts of a plea negotiation.[14]   The Supreme Court also recently handed down Padilla v. Kentucky, finding that the Sixth Amendment requires criminal defense attorneys to advise their immigrant clients of the possible deportation consequences of a guilty plea before accepting.[15] Whereas an attorney has “the duty to give correct advice [about relevant immigration statutes] is equally clear,” Cooper’s attorney here has the same obligation to give correct legal advice to his client.[16]

The more difficult question and the one that will drive the Supreme Court’s decision is the remedy, if there is even any. Both the state and the United States, filing as amicus, argue that because Cooper has no constitutional right to a plea bargain, it would be illogical to provide a remedy when he had no legal entitlement to a plea.[17]The state also raises a very interesting corollary argument. It contends that reducing Cooper’s sentence to the terms of his original plea of 51 to 85 months of imprisonment would actually put Cooper in a better state than he was before prior to his counsel’s ineffective performance.[18] Because judges can reject a plea bargain or impose an entirely different sentence based on the facts before them, there is no way of knowing whether the initial plea bargain, even if accepted by both parties, would have been actually implemented.[19]  As the state persuasively writes, “courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial, and the attempts to do so raise their own serious constitutional problems.”[20] The Supreme Court will be hearing oral arguments on October 31, 2011. I, for one, will be interested to hear the Court’s analysis of the remedy issue and its reaction to the parties’ arguments.