Recently we reported in our blog that a DWI conviction was vacated on grounds of ineffective assistance of counsel where the lawyer simply had his client plead guilty to Driving While Intoxicated without conducting an investigation into the evidence in the case. Now, just last week, the United States Supreme Court reversed a conviction where a defense attorney neglected to tell the defendant about a plea offer and the defendant was later sentenced to a much more lengthy prison sentence than he would have gotten if he accepted the plea deal.

In the case of Missouri v. Frye the United States Supreme Court for the first time recognized that the 6th Amendment to the United States Constitution ensures that a defendant’s right to effective representation extends to the plea bargain process and that if the lawyer is ineffective during the plea bargain process, the defendant may be entitled to reversal of his conviction.

In the Frye case, Galin Frye was accused of driving with a revoked license. Since he had been convicted of this same offense three times in the past he was facing a felony charge which carries up to 4 years in prison. During the pendency of the case, the prosecutor told Frye’s lawyer that Frye could plead guilty to a misdemeanor and receive a sentence of 90 days. Frye’s lawyer never conveyed that offer to him and he subsequently plead guilty and received three years in prison. On appeal Galin Frye argued that that we was denied his right to counsel because of ineffective of assistance of counsel. His conviction was reversed.

In the second decision, issued the same day last week, the United States Supreme Court agreed with two lower Federal Courts that reversed the convictions of a defendant who rejected a plea deal because of his lawyers erroneous advice.

In Lafler v. Cooper, Anthony Cooper shot the victim and was charged with Assault with Intent to Murder under Michigan Law. The prosecutor offered a plea deal that carried a sentence of 51-85 months in prison. Anthony Cooper on the advice of his attorney refused the plea deal and was subsequently convicted after trial and sentenced to a term of imprisonment of 185-360 months, more than three times the plea offer. Cooper’s lawyer had erroneously advised him to reject the plea deal because in the opinion of the lawyer the prosecutor could not prove intent to murder since all of the gun shots landed below the waist. This advice was wrong.

In the Cooper case, as in the Frye case, the Supreme Court recognized that the right to effective representation includes the right to effective representation during plea bargaining. According to a recent New York Times article 94% of cases in State Court and 97% of cases in Federal Court are resolved by plea bargains. In a system where the overwhelming majority of cases result in plea bargains, it seems that these two cases offer defendants critical constitutional protections that are at least as important as trial rights.

As these cases make clear, a criminal defense lawyer must not only communicate with his or her client, particularly about plea offers but must also offer competent advice about whether or not to accept those offers.

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