John H. Blume, "Plea Bargaining and the Right to the Effective Assistance of Counsel: Where the Rubber Hits the Road in Capital Cases"

Article. Abstract:

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that given the prevalence of plea bargaining in the modern American criminal justice system, the plea negotiation phase of a criminal trial is a “critical stage” of the proceedings. Thus, since a defendant has a Sixth Amendment right to counsel at all critical stages, and thus during plea bargaining, he also has the corollary right to the effective assistance of counsel during plea bargaining. Going forward, courts will be required to address claims that counsel’s failure to persuade a client to accept an offer that was clearly in the client’s best interests was ineffective assistance. This issue will be especially salient in capital cases given that approximately half of current death row inmates rejected a plea bargain that would have spared their lives. In most of the cases in which capital defendants refused to plead guilty in exchange for a life sentece, the prosecution’s offer represented not only the most likely trial outcome, but – in many cases – the best possible trial outcome. This article discusses the reasons defendants facing the death penalty reject life-sparing offers and trial counsel’s responsibilities in encouraging a client to accept a plea bargain in cases literally involving life and death.

Comments

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What is in the best interests of the client though?

Hypothetical:
A client who has a negligible chance of acquittal. Also "factually innocent".

You know that. The DA knows that, and so is offering a very lenient plea-bargain, despite the all but certain chance of conviction.

But it will mean the client perjuring themselves, saying they did something they did not, and providing an alibi to the actual perp, possibly allowing them to kill again, and again. Moreover, a guilty plea may preclude later, even post-mortem vindication.

The client is utterly terrified, out of their wits, and is being medicated for that. But the client adamantly refuses to foreswear themselves, even at the cost of their own life. You know though that in their unbalanced and medicated state, you may be able to persuade them to plead - even though they'd never do it in their right mind.

What is the ethical thing to do?

[John Steele]

Thanks for posting that. I've barely practiced criminal law and cannot offer a practical solution. Perhaps one of our readers can. Earlier in the year we did link to an article about counseling an innocent client to plead guilty.

http://www.legalethicsforum.com/blog/2012/05/counseling-an-innocent-client-to-plead-guilty.html

[Monroe Freedman]

You say that the client has a negligible chance of acquittal. That means the client is facing almost certain death or life in prison without parole. Yet you say that the client, in his or her right mind, would never accept the offer of a very lenient plea bargain. I have to wonder how you can know that, and to doubt that your assumption is accurate.

More facts would be useful, but it appears to me that your obligation is to persuade the client to plead guilty.

[www.facebook.com/profile.php?id=1036085884]

Monroe Freedman - there exist people who would literally rather die than break their word, or perjure themselves. I contend that it's not uncommon in people with ridiculously high security clearances, but you'll have to trust me on that.

It was part of the stipulated conditions that this was not a mere assumption, but something known beyond reasonable doubt. It's only the combination of stark terror, having fully informed knowledge of what's inevitably going to happen, and medication with psychotropic drugs that render the suspect "suggestible", not in their right mind.

An Alford plea would seem to be a solution, but for various reasons - insufficient evidence of guilt, or in a jurisdiction not recognising such a plea - it's untenable. A Nolo Contendere plea might be acceptable.

[Monroe Freedman]

Thank you for the additional facts. I hadn't understood that it was "not a mere assumption, but something known beyond reasonable doubt."

Abbe Smith and I discuss this issue in Understanding Lawyers' Ethics 59-61, and n. 80 (4th ed., 2010). I take the position that I would honor a client's decision to choose the death penalty in preference to a plea deal in appropriate circumstances.