Supreme Court of the United States
Missouri v. Frye
No. 10-444 : 3/32/12 (5-4)
Does the constitutional right to counsel extend to the negotiation and consideration of plea offers that lapse or are rejected? If so, what prejudice must the defendant demonstrate to obtain relief?
Holding (Kennedy, J.):
Yes, generally “counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Counsel renders ineffective assistance if he permits an offer to expire without communicating it to the defendant. The prosecution and trial court can protect against improper claims by documenting offers, exchanging them in writing, and making a record about them before future proceedings. To demonstrate prejudice, defendants must show a reasonable probability that the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it.
Dissent (Scalia, Thomas, Alito, J.J., & Roberts C.J.):
The fairness of the defendant’s conviction is established by his admission of guilt. Counsel’s mistake did not deprive the defendant of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. “In this case and [Lafler; see below], the Court’s sledge may require the reversal of perfectly valid, eminently just convictions. A legislature could solve the problems presented by these cases in a much more precise and efficient manner.”
This ruling is no surprise to Texas. In 1987, the Court of Criminal Appeals decided the issue in the same manner in Ex parte Wilson, 772 SW2d 72. Subsequent Texas cases have repeatedly re-affirmed that opinion. In The Perfect Plea, published by TDCAA for over a decade and distributed for free to all new prosecutors, the author has long indicated that defense counsel has a duty of providing effective assistance during the plea bargaining process. At a minimum, defense lawyer must convey an offer to his client, convey any acceptance, rejection or counter-offer and do so within any deadlines set by the State. Such best practices, if they also include a written record of the bargaining and a pretrial announcement on the record of any rejection of a plea offer, should protect the State from the inevitable complaints of ineffective assistance. Justice Scalia writes a rousing dissent, but, given the overwhelming resolution of cases through plea negotiations, the interests of justice weigh in favor of applying the Sixth Amendment to plea bargaining.
Lafler v. Cooper
No. 10-209 : 3/21/12 (5-4)
Where counsel provides ineffective assistance by recommending rejection of a plea bargain and where the prejudice alleged is that of having to stand trial, what must the defendant show to obtain relief?
Holding (Kennedy, J.):
Under the prejudice prong of the ineffective assistance of counsel test, the defendant will have to show that there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction, sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Possible remedies include the trial court conducting a hearing to determine 1) whether the defendant would have accepted the plea and, if so, deciding what the appropriate sentence should be (that was assessed, was pled to, or something in between), or 2) where lesser offenses were offered, deciding whether to vacate and accept the plea or let the conviction stand. Here, because the sentence assessed was 3½ times that offered, the State should reoffer the plea agreement.
Dissent (Scalia, Thomas J.J., & Roberts, C.J.):
There is no constitutional right to a plea bargain, and counsel’s mistakes in this case did not deprive the defendant of a substantive or procedural right to which the law entitles him. The majority’s remedy, unheard of elsewhere, is incoherent. Finally, “[t]he Court today embraces the sporting chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory.”
Dissent (Alito, J.):
“In my view, requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer is rejected, and, second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources.”
Now, this decision is very bad news. A defendant’s subjective, hindsight re-evaluation of a plea offer, suddenly made attractive by a lengthy prison sentence coming after a fair jury trial should not be grounds for an appellate court to apply multi-pronged tests in deciding whether the earlier advice to go to trial was reasonable. The acceptance or rejection of a plea offer is a VERY subjective issue that will always be capable of second-guessing and back-seat-driver opinionating. Add to your pretrial hearing: motion for defendant to declare he wants a jury trial regardless of any pretrial offer or advice from defense counsel. Moral of the story to defense counsel: never give advice on whether to accept or reject the plea bargain.
Martinez v. Ryan
No. 10-1001 : 3/20/12 (7-2)
Do rules of federal procedural default bar a claim of ineffective assistance raised for the first time in a federal writ where the State bars claims on direct review and requires them to be raised on collateral attack but no such claim was raised in state court?
Holding (Kennedy, J.,):
No, not automatically. As a “limited exception” to Coleman v. Thompson, 501 U.S. 722 (1991), inadequate assistance of counsel at initial-review collateral proceedings may establish cause to excuse procedural default. This is not a constitutional analysis but an “equitable ruling.”
Dissent (Scalia & Thomas J.J.,):
The majority’s decision is a “repudiation of longstanding principles governing procedural default”; is really of constitutional dimension; and will, as a practical matter, require states to appoint counsel in initial-review collateral proceedings and open the door to ineffective assistance claims on federal habeas review for claims that appointed counsel fails to raise.
This was quite a week for Scalia dissents, and he may have peaked with his dissent in this case: “I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on, causing (because of today’s holding) execution of the sentence to be deferred until either that claim, or the claim that appointed counsel was ineffective in failing to make that claim, has worked its way through the federal system.”
Indeed, within 24 hours, a Texas death row inmate sought delay through such a claim and was promptly refused relief (See CCA order here). Look for him to immediately proceed to federal court yet again, revealing the latest loophole to finality created by SCOTUS. And watch for anti-death penalty advocates to call for Texas law to be amended to add this loophole into the Code of Criminal Procedure. Drum roll.
Fifth Circuit Court of Appeals
United States v. Cooke
No. 10-20422 : 3/13/12
Did officers conducting a “knock and talk” unlawfully enter the curtilage of a residence located inside business buildings by passing through open exterior barn doors to knock on the interior barn doors of the residence?
No. Although the officers lacked a warrant or consent, the area between the two sets of doors was not of a kind that “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life” so did not constitute the curtilage.
Did the absent defendant’s prior express refusal of his consent to enter the residence overcome his mother’s onsite consent?
No, the defendant was in the jail 20 miles from his residence when he objected to a search, and, in line with two other circuit courts of appeal, the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under Georgia v. Randolph, 547 U.S. 103 (2006).
The court of appeals engages in a very smart and logical application of the rules regarding co-tenant consent. Here, the complaining tenant was in jail when his 78-year old mom gave consent for officers to come in the home, so her consent trumps his earlier denial of consent. Moral of the story: choose your roommate carefully or never leave home.
Court of Criminal Appeals
Johnson v. State
NO. PD-0068-11 : 03/21/12
Did the variance between the allegations in the charging instrument (hitting victim with hand) and the proof at trial (throwing victim into wall) render the evidence insufficient to support a conviction for aggravated assault?
No. The variance involved the causation of the bodily injury, not the type of bodily injury inflicted on the victim. Aggravated assault is a result-oriented offense and the precise act or nature of conduct is inconsequential. Variances involving immaterial non-statutory allegations do not render the evidence legally insufficient.
Although the result of this case might at first seem shocking, the Presiding Judge’s opinion merely applies long-standing case law regarding how you examine sufficiency of the evidence. But don’t think you can just ignore how you plead manner and means in the indictment. As a footnote indicates in the majority opinion, the CCA wasn’t asked to decide whether the defendant was deprived of proper pretrial notice of an accusation. You still need to talk carefully to your victim before indictment and plead manner and means with sufficient clarity that it alerts the defense to what the evidence will show.
Wirth v. State
PD-1054-11 : 03/21/12
Did the court of appeals incorrectly hold that the evidence was legally insufficient to support the defendant’s conviction of theft?
Yes. The court of appeals did not defer to the jury and did not view the evidence in the light most favorable to the verdict. Although the evidence presented was almost entirely circumstantial, the jury’s determination that the defendant authorized the issuance of drafts knowing that he would never satisfy them is not so outrageous that no rational trier of fact could agree.
This case is an emphatic period on the obituary for Clewis v. State (factual insufficiency review) and a welcome return to the pre-Clewis standard of reviewing legal sufficiency without indulging in one’s own opinion about the evidence from a cold reading of a trial record. The CCA has come full circle and again announces proper respect for the fact-finding role of a Texas jury.