Readers of this blog know how I yearn
for the chance to be a real lawyer, to plant my four white paws on
counsel table and yowl to the world. And yet, two recent decisions
out of the Supreme Court may have changed all that. The courtroom,
it appears, may not be as important as we'd all like to think it is.
The SCOTUS recently delivered opinions
in two cases, Lafler v. Cooper and Missouri v. Frye
in which the Court held that criminal defendants have a right to
competent legal counsel during plea bargain negotiations.
That
doesn't sound like much, but these decisions may have far-reaching
ramifications on both the criminal law process and in how we think
about it.
The
Sixth Amendment to the Constitution states that:
“In
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense."
Look
at that capitalized part. “Assistance of Counsel.” These days,
most people know from listening to the recitation of Miranda rights
on tv (hopefully that's why you know it, and not because of personal
experience), that they have the “Right to speak to an Attorney. If
you cannot afford an Attorney, one will be appointed for you.”
The
reading of Miranda rights is a fairly recent development. Mirandav. Arizona was only decided
in 1966. Even more importantly, up until 1963, there was no
recognized right to court-appointed counsel in criminal cases for
indigent defendants. What about the 6th
amendment, you ask?
Let
me introduce you to Clarence Earl Gideon, who, in my humble opinion,
is an example of what our legal system can be, at its best.
“Gideon
was a fifty-one-year-old white man who had been in and out of prisons
much of his life. He had served time for four previous felonies, and
he bore the physical marks of a destitute life: a wrinkled,
prematurely aged face, a voice and hands that trembled, a frail body,
white hair. He had never been a professional criminal or a man of
violence; he just could not seem to settle down to work, and so he
had made his way by gambling and occasional thefts. Those who had
known him, even the men who had arrested him and those who were now
his jailers, considered Gideon a perfectly harmless human being,
rather likeable, but one tossed aside by life. Anyone meeting him
for the first time would be likely to regard him as the most wretched
of men.” Gideon's Trumpet, Anthony Lewis, pgs. 5-6.
This
“most wretched of men” did something very admirable and very brave.
In
1962, Gideon was serving a 5 year sentence for allegedly breaking
into a pool room, stealing some money from a cigarette machine
(probably no more than $25.00) and some alcohol. Gideon's Trumpet, pgs. 7, 249. At his trial, he
told the judge he wasn't ready because he did not have an attorney. Gideon's Trumpet, pg. 10. At the time, the sixth amendment was construed to mean that a person
only had the right to a court-appointed lawyer if there would be
“denial of fundamental fairness” without an attorney. Betts
v. Brady, cited in Gideon's
Trumpet, page 8. This meant that unless there were “special
circumstances” such as “illiteracy, ignorance, youth or mental
illness, the complexity of the charge against him or the conduct of
the prosecutor or judge at the trial.” Gideon's Trumpet, page 9. Gideon was on his
own.
Gideon
wrote a petition to the Supreme Court, in pencil, asking them to
overturn his conviction because he didn't have a lawyer at trial. Gideon's Trumpet, page 3. He
knew enough to know what the 6th
amendment said, even if he didn't know about Betts.
And
that's what the Court did. It overturned Betts. Gideon v. Wainwright, 372 U.S. 335, (1963). It decided that the right to counsel is a “fundamental right”
that is guaranteed to defendants in criminal cases. Id. It noted that
“Even
the intelligent and educated layman has small and sometimes no skill
in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence. Left without the
aid of counsel, he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to
establish his innocence." Id. citing Powell v.Alabama.
Which
is exactly what had happened to Gideon. For example, he spent a good
deal of time at his trial encouraging witnesses to assert that he had
not been drunk on the night in question, (probably trying to protect
his character), without realizing that intoxication would have been a
defense. Gideon's Trumpet, pg. 63. Because he had been in jail, he didn't have the opportunity
to research the backgrounds of the witnesses against him (one of
which had previously lied). Gideon's Trumpet, page 250
When
the Supreme Court remanded his case, and he was retried with the help
of defense counsel, Gideon was found not guilty. Gideon's Trumpet, page 249.
Because
of Gideon, we now understand the right to counsel to be one of the
most fundamental rights in our idealized version of the United States
legal system. So, fifty years after Gideon, why do we now have
Lafler
and Frye?
Both of the defendants in those cases had counsel at their trials.
There is no allegation that there was anything wrong with their
trials at all. They were found guilty through a fair process. They
benefitted from Gideon's fight. So what's the problem?
The
criminal justice system has changed dramatically since Gideon's day.
When Gideon was arrested, he was put in jail to await trial. Now,
however, he would have been offered the opportunity to “plea” or,
to agree to admit guilt in exchange for a lesser sentence. "97
percent of federal convictions and 94 percent of state convictions in
2009 were obtained by a guilty plea, according to the Justice Department." Pleas save on scant resources. They save time and money.
Defendants'
fates are decided overwhelmingly outside of the courtroom.
Effectively, there has been no recognized right to counsel in 94% of state convictions.
Here's
how that plays out. Galen Frye was charged with driving with a
revoked license. Missouri v. Frye. The prosecutor offered his attorney a 90 day jail
term if he pled guilty to a misdemeanor or a 10 day sentence if he
pled guilty to a felony. Id. His attorney never told him. Id. He pled
guilty at his trial and received a three year sentence. Id. Anthony
Cooper shot a woman in the buttock, hip and abdomen. Lafler v. Cooper. He was charged
with “assault with intent to murder, possession of a firearm by a
felon, possession of a firearm in the commission of a felony,
misdemeanor possession of marijuana, and for being a habitual
offender” under Michigan law. Id. He was offered two plea bargains,
which would have subjected thim to a 51-85 month sentence if he pled
guilty. Id. Bizzarrely, however, he “rejected the offer on both
occasions, allegedly after his attorney convinced him that the
prosecution would be unable to establish his intent to
murder...because she had been shot below the waist.” Id. (I think I
know a lawyer who should start reading The Purrdict).
Both
Cooper and Frye had, by all accounts, fair trials. What more could
you ask for? Well, according to Justice Kennedy, we can't consider
the trial the be all and end all of the criminal justice system
anymore. Instead, plea bargaing “is the criminal justice system.” Missouri v. Frye.
I
submit to you that the Frye
and Cooper
decisions are controversial because this just isnt' how we want to
think about our justice system. Our courtrooms, shabby and broken as
they may (usually) be, are panneled in wood. They have seals above
the judge's head. They are steeped in formality. Plea bargains take
place behind closed doors with plastic chairs and bad lighting.
There is very little Latin spoken. Tuxedo kittens do not demand
litter-box facilities in the counsel rooms of jails, (although
now...)
And
what are we to do with Mr. Frye and Mr. Cooper? As Justice Scalia
points out in his (unsurprising) dissents, they received fair trials.
Are we to overturn the ressults of two completely appropriate and
fair trials, in which the men were found guilty, to allow them to
receive lesser sentences that they were offered in plea bargains?
What does that say about the trial itself? What does that say about
the jury, that institution that is so highly regarded in our
jurisprudence?
Do
these two decisions say more about the Supreme Court, or about the
state of our legal system? Or, do they say more about our actual
legal system, or how we want to think about our legal system?
And
is this all just a ploy to keep cats out of the courtroom?
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