Privacy between an attorney and client is a sacred privilege in the criminal justice system, but that secrecy can backfire when the lawyer has nothing but bad advice.
The U.S. Supreme Court recently ruled in two cases that not only do criminal defendants have a right to effective counsel when discussing a plea bargain, but if they reject a prosecutor’s offer due to attorney incompetence, the defendants have the right to argue for a do-over.
More attorney accountability is exactly what the system needs, confirms Oneida County District Attorney Scott D. McNamara.
"The philosophy has been that anybody can have any kind of lawyer they want," McNamara said. But, "we’ve had some attorneys that clearly shouldn’t be practicing law."
McNamara agrees with the Supreme Court’s decisions, and is already considering how the local system might have to change to make defense attorney’s more accountable when it comes to plea bargains. As the county’s top prosecutor, it’s McNamara’s office that offers reduced sentences in exchange for guilty pleas. But in the majority of cases, the offer is made to the defense attorney, who then has to pass it along to the defendant.
"We have no idea what the lawyer says to the client," McNamara explained. "How do we find out what was told to the person, because of the attorney/client privilege?"
About 95 percent of all criminal cases "are resolved without a trial," McNamara said, with the vast majority of those involving some kind of deal.
A plea bargain "has a negative connotation to it, and people think that’s what’s wrong with our system," McNamara said.
"But a trial is what happens when you can’t solve a case by having the two parties come together. A trial is a last resort."
McNamara said there are many reasons why prosecutors offer plea bargains, with the two main deciding factors being the strength of the case and whether or not his office would be satisfied that the offer is an appropriate punishment. Prosecutors will offer plea bargains if the evidence is too weak to get a conviction at trial, he said, or perhaps to spare the victim from the trauama of a trial, or sometimes the victim might not be cooperating.
Bargains are also reached to get a defendant to testify against an accomplice, and McNamara said his office might give someone a break on a traffic ticket and lower it to a lesser charge because they "feel that it’s the right and just thing to do."
¿ In Missouri v. Frye, defendant Galin E. Frye was in lockup for driving without a license in 2007, and prosecutors were willing to let him plead guilty in exchange for 90 days in jail, according to the Supreme Court decision. Frye’s attorney, however, never told Frye about the offer, and he was later sentenced to three years in state prison.
¿ In Lafler v. Cooper, defendant Anthony Cooper shot a woman in the leg in Detroit in 2003, and his attorney told him that he could not be convicted of assault with intent to murder because the bullets had struck the victim below the waist. Based on that advice, Cooper rejected an offer of four to seven years, only to be later convicted and sentenced to 15 to 30 years in prison.
"Lawyers promise outcomes," McNamara stated. "I’ve always shuddered at that."
Both decisions were 5-4 rulings by the Supreme Court on March 21. The right to a fair trial is guaranteed by the sixth Amendment of the U.S. Constitution.
"There are a lot of questions that need to be answered. They way we do business now needs to be looked at," McNamara said. "We’re really going to have to take a look at how we do things."
In about 90 percent of felony plea bargains, McNamara said the offer is made to the defense attorney in a judge’s chambers, with the judge as part of the discussion. The other 10 percent, as well as lesser misdemeanor plea offers, are often done in a much more casual manner, sometimes face-to-face, sometimes over the telephone and sometimes by mail, he stated.
These new decisions may lead to a stricter control of how plea bargains are made, McNamara said. The offers might need to be made to the client on the record, or the courts might need to find a better way to make sure the defendant fully understands what they are rejecting.
McNamara suggested that local bar associations might help mentor new attorneys fresh out of law school about the inner workings of the criminal justice system. Or attorneys might need to work on a certain number of lesser misdemeanor cases before they can argue in a felony criminal case.
McNamara oversees a staff with 34 funded positions, including investigators, and a 2012 budget of $4,155,450.
Oneida County Bar Association President Elizabeth Snyder Fortino declinedd to comment on the Supreme Court’s rulings. There are 425 members of the Bar Association, and roughly 535 total lawyers in Oneida County, not all of them criminal attorneys.
"If anything, it legitimizes completely the aspect of plea bargaining," said Rome City Court Judge Daniel C. Wilson. "Plea bargaining is not a dirty word. It’s basically just having the defendant know what’s going to happen to him."
Wilson, one of Rome’s two municipal judges, said he oversees about 3,000 criminal complaints a year, either violations or misdemeanors, and only about a dozen or so lead to an actual jury trial in City Court. All other cases usually involve some sort of discussion between the attorneys, though not all cases necessarily end with a plea deal.
Wilson said the rulings might put more responsibility on judges to make sure defendants fully understand the deals they are rejecting.
"It would seem the judge probably would have to cover it by asking the attorney if they have discussed all possible ramifications" with the client, Wilson stated, though the ramifications will likely be different for each client.
Wilson said he will follow the decisions of the Supreme Court — "the law is the law" — but he was concerned that these new rulings could mean that old cases might be reopened to discuss plea bargains that were never placed on the record.
Oneida County’s Chief Public Defender, Frank J. Nebush, said he was taken aback at the details of Missouri v. Frye and Lafler v. Cooper, shocked that any defense attorney could be so incompetent.
"Isn’t an attorney responsible for the advice he gives a client, whether good or bad?" Nebush said. "There’s an obligation for an attorney that he’s effective."
Nebush said he also agrees with the Supreme Court’s decisions, and that his office has always documented every plea offer. Not all defense attorneys are members of the Public Defender’s Office, which has 22 funded positions, including Nebush. The Public Defenders Office is for indigent clients who cannot afford their own attorney. The criminal division of the Public Defenders Office has a 2012 budget of $2,156,542.
"Giving information to your client, that’s always, to us anyway in this office, that’s just something you always do," Nebush said. Even when public defenders might not like the offer, and might not recommend it, Nebush said his attorneys will still tell the client.
Rejecting an offer "is the client’s decision to make," Nebush stated.