{"id":3588,"date":"2011-10-03T20:05:11","date_gmt":"2011-10-04T00:05:11","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3588"},"modified":"2016-11-16T20:36:59","modified_gmt":"2016-11-17T01:36:59","slug":"pleadeal-breaker-supreme-court-to-decide-whether-right-to-effective-counsel-extends-to-plea-bargains","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/pleadeal-breaker-supreme-court-to-decide-whether-right-to-effective-counsel-extends-to-plea-bargains\/","title":{"rendered":"(Plea)Deal Breaker: Supreme Court to Decide Whether Right to Effective Counsel Extends to Plea Bargains"},"content":{"rendered":"

Anthony Cooper is far from the most sympathetic litigant before the Supreme Court this term<\/a>.\u00a0 In 2003, Cooper shot a woman four times as she ran away from him, hitting her twice in the buttocks, once in the hip, and once in the right side of her abdomen. \u00a0His victim survived, but required a three-week-long hospital stay.\u00a0 Cooper was charged with assault with intent to murder, among other offenses.\u00a0 He was convicted of all charges and sentenced to at least 15 years in prison.<\/p>\n

Though Cooper\u2019s behavior was by all accounts egregious, his attorney\u2019s conduct was pretty bad as well.\u00a0 Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.\u00a0 Cooper\u2019s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.\u00a0 If that argument seems silly, it\u2019s because it is.\u00a0 The advice Cooper received was patently false, and as an appellate court later declared, \u201cobjectively unreasonable.\u201d\u00a0 Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.\u00a0 Cooper appealed, alleging ineffective assistance of counsel.\u00a0 The Sixth Circuit overturned Cooper\u2019s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.<\/p>\n

Cooper\u2019s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney\u2019s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?<\/p>\n

Perhaps not<\/a>.\u00a0 To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a \u201csubstantial or procedural right to which the law entitles him.\u201d Lockhart v. Fretwell<\/a><\/em>, 506 U.S. 364, 372 (1993).\u00a0 It is not clear what right Cooper was deprived of. \u00a0Cooper had no constitutional right to a plea bargain.\u00a0 Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.\u00a0 In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.\u00a0 It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.<\/p>\n

The approach described above, however, may be overly formalistic.\u00a0 Cooper points out<\/a> that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky<\/a><\/em>, 130 S. Ct. 1473 (2010).\u00a0 Why then shouldn\u2019t ineffective counsel negate a not-guilty plea?\u00a0 The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.\u00a0 By pleading not guilty, however, a defendant gives up nothing.\u00a0 Rather, by pleading not guilty, a defendant is asserting<\/em> his constitutional right to a trial.\u00a0 But is that distinction satisfying?\u00a0 Both Padilla and Cooper received bad advice.\u00a0 Both Padilla and Cooper would have altered their decision had they been provided with competent advice.\u00a0 Yet only Padilla gets a do-over?\u00a0 The result may follow from existing precedent, but a tinge of unfairness remains.\u00a0 The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.\u00a0 Many are hoping that they do.<\/p>\n","protected":false},"excerpt":{"rendered":"

Anthony Cooper is far from the most sympathetic litigant before the Supreme Court this term. In 2003, Cooper shot a woman four times as she ran away from him. Though Cooper\u2019s behavior was by all accounts egregious, his attorney\u2019s conduct was pretty bad as well. When a criminal defendant turns down a plea deal based on his attorney\u2019s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?<\/p>\n","protected":false},"author":35,"featured_media":3589,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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