The Baader-Meinhof Phenomenon

For those of you who don’t know, the Baader-Meinhof Phenomenon is that weird occurrence where you hear about something for the first time and then encounter it again shortly afterwards. (Don’t worry, I didn’t know that term either until I searched for it on Google. And if there is any truth to this phenomenon you will come across this term again soon.) As a newly minted lawyer, many legal concepts that are second nature to seasoned attorneys are in the forefront of my mind, and my latest fixation is on ineffective assistance of counsel, with a twist.

About a week ago, I benched a moot court competition with a problem involving IAC at the plea bargaining stage. Unfortunately, it wasn’t a cut-and-dried Strickland and Hill issue, since the case involved a defendant who declined a favorable plea offer based on erroneous legal advice and proceeded to trial. In this fictional case, the defendant’s attorney advised him that evidence of shooting someone in the arm and leg would be legally insufficient to prove assault with intent to murder. The defendant was advised to reject a five-year plea offer and proceed to trial. He was later convicted (much to his surprise) and sentenced to a term three times longer than the plea offer.

This scenario doesn’t just occur in the closed universe of moot court briefs, however. In fact, one of the reasons I even agreed to bench the competition was because the problem closely mirrored one of my current cases. While I had thoroughly researched this issue at the state level, I was curious to see the arguments from both sides based on nationwide case law. After watching two hours of interesting debates, I left the competition wondering why the real Supreme Court has not yet decided this issue.

Last night, my question was answered when I ran across a news article discussing two cases involving ineffective assistance of counsel at the plea bargaining stage: Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209. While this may not seem strange to any of you, this particular article appeared on the sidebar of my South Georgia hometown newspaper’s website—hardly the proper venue for any academic legal commentary. (Sure, this may have been a coincidence, but I like to think that it’s the Phenomenon at work.) The Supreme Court of the United States heard oral arguments in both cases this morning.

In Lafler, the Sixth Circuit held that Cooper’s attorney was ineffective for convincing Cooper to reject a favorable plea bargain based on an erroneous understanding of the law. The court also ordered “specific performance” of the plea bargain, even though Cooper was later convicted at a fair trial. Here, Cooper was charged with assault with intent to murder and possession of a firearm by a felon after shooting a woman several times below the waist. Cooper was offered a plea of 51 to 85 months, but he rejected the plea offer after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted at trial and sentenced to 185 to 360 months in prison.

In Missouri, respondent Frye was arrested for his fourth violation of driving with a revoked license—a class D felony with a four-year maximum sentence. The prosecutor conveyed two offers to Frye’s counsel. The first choice was that Frye could plead guilty and the state would recommend three years, agree with the court if it gave probation, but would ask that ten days be served in “shock” incarceration if probation was granted. The second option would change the charge to a misdemeanor with a maximum one-year sentence, and the State would recommend a 90-day prison sentence. Rather than informing his client about the plea offers, Frye’s attorney entered an “open” guilty plea. Frye was sentenced to three years in prison.

Both cases are important to defendants and criminal defense lawyers alike because they actually address the real-world implications of the plea bargaining process. It is easy to rely on a plain reading of the Sixth Amendment and argue that because there is no constitutional right to a plea bargain, an attorney’s ineffective assistance at the plea bargaining stage does not deprive a defendant of any constitutional rights. But this argument would ignore what really happens in criminal cases. The majority of criminal charges are disposed of by plea bargains, not by trials. For many criminal defendants, a plea bargain is not only a crucial part of the process; it is the only part of the process that involves real deliberation.

After the Court’s decision in Padilla v. Kentucky last year, I have hope that the Court will continue to recognize the real dangers of ineffective assistance of counsel at the plea bargaining stage. The second-prong of Strickland is not only met when a defendant would have insisted on going to trial had he been properly advised at the plea bargaining stage; a defendant is also prejudiced when he would have accepted a plea if he had been properly advised. If SCOTUS agrees, the opinions in Lafler and Missouri will not only change the way lawyers think about their representation during the plea bargaining process, but their whole approach to IAC claims as well.

A few months from now, my fascination with IAC at the plea bargaining stage will subside as my caseload inevitably grows and new issues occupy my mind. The issues presented in Lafler and Missouri will fade away as I am faced with unique questions and research new problems for my clients. Then, one day, I will browse my hometown newspaper’s website and see “SCOTUS Decides Bad Plea Advice Cases” on the sidebar. And the Phenomenon will begin again.