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Ineffective Assistance of Counsel at Plea Bargaining

As reported here, yesterday, the Supreme Court granted cert in Arave v. Hoffman, involving an Idaho death row inmate who turned down a plea bargain that would have spared his life, after his lawyer, William Wellman assured him that Idaho's death penalty sentencing procedures would be invalidated by a recent Ninth Circuit ruling.  But apparently, precedent on the issue was split and Wellman failed to consider or advise the client that the favorable Ninth Circuit decision might be overturned by the Supreme Court, which it was.  As a result of conviction at trial, Hoffman received a death sentence.

On review, the Supreme Court will consider whether ineffective assistance of counsel at the plea bargain stage violates the Sixth Amendment.   And there's lots of commentary and anticipation in the blogosphere:

From Professor Doug Berman, "this grant continues the Supreme Court's wonderful recent tendency to focus on important real-world criminal justice issues that have often previously escaped its attention."

A Public Defender comments that many have opined that ineffective assistance at the plea stage should not matter where the defendant has a fair trial.  But he disagrees, arguing that the Supreme Court holds that the Sixth Amendment entitles defendants to effective counsel at any critical phase of trial -- and the plea bargain stage is critical.

Scott Greenfield of Simple Justice agrees with this approach.  Moreover, he argues that the only reasonable remedy is to turn back the clock to the point where the error -- the ineffective assistance  -- occurred and let the defendant have a second bite at the plea offer.

Crime and Consequences disagrees.  He addresses whether ineffective assistance of counsel at the plea stage is sufficiently prejudicial to warrant vacating the sentence imposed.  C&C says no:

The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

As for me, this Hoffman case is setting up as one where bad facts make bad law.  In principle, I agree that the plea stage is a critical stage where effective assistance of counsel is paramount.  Indeed, when we think about "ineffective assistance," what typically comes to mind is the harried court-appointed lawyer who presses a client to accept a plea because the lawyer is too overworked to try the case.  In my mind, there's nothing more ineffective than that type of advice.  But that's not the nature of the advice that Wellman provided.  He researched the applicable law and made what many of us in any other context would characterize as a "judgment call."  He was familiar with the Ninth Circuit decision and didn't anticipate that it would be overturned.  Perhaps this is risky, but was Wellman's research (on precedent splits) so poor that it wouldn't pass muster under the "ordinary care" standards that apply in malpractice cases? 

I realize that this is a capital case and the stakes are high.  I would love to come down on the side of the case that spares Hoffman's life and that reaffirms that the right to effective counsel applies in all stages of the case.  But to reach that result, I'd also have to be willing to open up all of my legal advice and my judgment calls to scrutiny by a court.  That's an outcome that makes me nervous -- and I've got to believe that it's one that will make some of the Supreme Court justices (who may not have practiced law, but certainly know or are related to practicing lawyers) nervous as well.

Posted by Carolyn Elefant on November 6, 2007 at 05:02 PM | Permalink | Comments (5)


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