The latest case to go to the Supreme Court is Lafler v. Cooper, an assault case where the prosecution offered 51 months if Mr. Cooper plead guilty. His lawyer, looked at the facts and told his client a better deal may come and he had a good case. The better deal never came and it went to trial The verdict was…guilty. and Mr. Cooper was sentenced to 185-360 months in prison. Oops.
The argument is that the lawyer should have advised his client to take the 51 months and not got to trial. But is this ineffective assistance of counsel? I believe not and I bet the U.S. Supreme Court will agree with me. The reason is that the whole concept of a plea bargain is that a person can take the plea and a reduced sentence or punishment. The government gets a conviction and gets to mete out punishment and the defendant gets the certainty of the deal.
One of the basic tenants in our system is that you want a good lawyer. That is why some criminal defense lawyers charge $7,500 for a DWI and others charge $500. Most people want the best lawyer, they understand not all lawyers are created equal and if they can afford it, they will pay for it.
As a criminal defense lawyer we see this a lot. Too much in fact, where a client refuses to either consider the deal or wants to fight on principle. There is a saying in the Defense Bar that sometimes even the offer is so good even a guilty man has to take it. Mr. Cooper chose to gamble, and he lost. If Mr. Cooper had won I don’t think the state would have cried foul, they would have accepted the fact that Cooper gambled and won.
If the Supreme Court accepts Cooper’s argument it will have a significant effect on how criminal defense lawyers practice. The reason is that just as no Judge wants to be overturned on appeal, no criminal defense attorney wants to be called ineffective. It stings the ego and most lawyers generally feel bad if they do something that hurt a client. So instead, what will happen is that on every single case that a plea is offered, which is probably well over 99% (usually only the horrific cases don’t get a plea offer) the defense lawyer will say “take it”. This will be followed by a letter that says “take it”, probably a waiver that shows the lawyer said “take it” and a whole plethora of documents that the criminal defense lawyer will give to the client so that they can never be said they advised to go to trial.
This will have a chilling effect on the Justice system. Instead of lawyers giving good, honest advice I see a system where the defense lawyers will be worried about being sued and spend more time worrying about if they are “ineffective” than about helping their client.