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U.S. Supreme Court On Plea Bargaining

In the popular culture, the role of a criminal defense attorney is thought to be defense counsel’s role as champion for the accused during a high-stakes trial.

Of course, one of the responsibilities of defense counsel is to present a strong defense at trial. Indeed, criminal defense attorneys find nothing more gratifying than hearing the words “Not Guilty” at the end of a hard-fought trial.

But the role of defense counsel goes much farther than winning cases at trial. A recent editorial in the New York Times declares: “Plea bargaining defines the criminal justice system: 97 percent of federal convictions and 94 percent of state convictions come through guilty pleas negotiated between prosecutors and offenders.” In order for defense counsel to get the best possible outcome for the client, the possibility of accomplishing a negotiated outcome can never be overlooked.

One of the fundamental ethical responsibilities of defense counsel is to make sure that the client is able to make informed and intelligent decisions during the course of a criminal prosecution. The accused has the absolute right to take his or her case to trial, or give up the right to trial and plead guilty. Ethical defense attorneys always realize that it is the client’s decision to take a case to trial, or not. It is unethical for an attorney to reject a pretrial offer without giving the client the opportunity to make a thoughtful decision as to the correct course of action to pursue.

Astonishingly, there have been cases in which defense attorneys have not conveyed pretrial offers to the client, or have not counseled the client sufficiently as to whether to accept the offer, thus preventing the client from being able to make an intelligent and knowing decision as to whether to plead guilty or go to trial.

This past week, the United States Supreme Court issued two powerful decisions rebuking the conduct of defense attorneys who failed to convey pretrial plea offers to their clients. In Missouri v. Frye, the prosecutor sent a letter to defense counsel, in a case involving a charge of diving with a revoked license, offering the defendant the opportunity to plead guilty and receive a sentence of 90 days in jail. Defense counsel did not inform the defendant about the offer, and the matter proceeded to trial, resulting in a 3-year prison sentence. In Lafler v. Cooper, the prosecutor offered the defendant a sentence of 51 to 85 months in prison in exchange for pleading guilty to a charge of assault with intent to murder. Defense counsel advised the defendant incorrectly that the defendant could not be convicted on that charge because the victim was shot below the waist. The defendant went to trial and was convicted, and received a mandatory prison sentence of 185 to 360 months. If defense counsel had correctly advised the defendant about the risks of trial, the defendant would have received far less punishment.

The US Supreme Court concluded that both of these defendants had been given ineffective assistance of counsel, greatly to their detriment. In strong language, the Court declared that defense counsel has the duty to convey pretrial offers to the accused, and to advise the accused concerning the risks of going to trial. Ultimately, it is the client who must make the difficult decision whether to take a case to trial, or not. But in order to make a knowing and intelligent decision, the accused must receive effective assistance of counsel.

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Mark C. Cogan, P.C., of Portland, Oregon, represents individuals charged with crimes throughout Oregon, including central Oregon, northern Oregon, Pacific Coast communities and the Willamette River valley, including Clackamas County, Washington County, Multnomah County, Columbia County, Marion County, Tillamook County, Clatsop County, Lincoln County, Lane County, Linn County and Benton County and the cities of Salem, Lake Oswego, Gresham, Oregon City, Tigard, Beaverton, Hillsboro, Tualatin, Milwaukie, West Linn, The Dalles and Clackamas.

© Mark C. Cogan, P.C., 2016 - 2017.