Anthony Cooper shot a woman in Detroit in 2003 and then received a really bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder. Based on that advice, Cooper rejected the plea bargain that was for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

Cases like this are becoming more and more common these days. Another instance of bad pleading went even further. In the case of Missouri v. Frye, Galin E. Frye’slawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When he finally accepted his plea bargain, it was already too late and he was sentenced to 3 years in prison.

On Monday the Supreme Court will decide based on these two cases, how principle regarding bad legal advice apply to plea bargaining. The question is of paramount importance as most of the criminal cases in the US are settled in the plea bargaining stage.

Last year about 97 % of the criminal cases in the Federal Courts were decided at this stage. In the context of trials, it has long been known that defendants who can show that incompetent work by their lawyers probably affected the outcome are entitled to new trials. But lawyers and legal academicians have a different view. Plea bargaining is a free market resembling a Turkish bazaar says Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania. Chris Koster, Missouri’s attorney general conforms this view. According to him the prosecution or the defense attorney make meet and talk about several offers without ever pausing to allow defense counsel to discuss the various offers with the accused. Last year, in Padilla v. Kentucky, the Supreme Court took a big step toward regulating plea bargaining. The majority decided that the bad advice that persuaded a defendant to plead guilty without understanding that his incarceration would be followed by deportation amounted to ineffective assistance of counsel. The criminal hailed this development as a big step forward. According to them the negotiation of a plea bargain is a critical stage of the litigation for purposes of the Sixth Amendment right to effective assistance of counsel and the Padilla case was really a defining moment in bringing a constitutional framework to bear on plea bargaining.

In the Padilla case bad advice had cause the accused to plead guilty. The solution is simple: the defendant can withdraw his plea and take his chances at the trial. But what happens in those cases where due to the incompetence of their lawyer the client rejects a favourable plea bargaining offer.

Lawyer the main objective of the Sixth Amendment of the US constitution is to ensure a fair trial so that the guilty get punished. It does not mean that everyone is entitled to plea bargaining. Prosecutors may not offer them, they even take them back after the defense has accepted them or the judges might reject the altogether.

However the prosecutors conceded that the defense lawyers’ performances in the two cases fell short of the minimum requirements of professional and ethical conduct. But they say there is no way to fix those shortcomings. Courts cannot turn back time, they say.

In Frye’s case, concerning driving without a license, a state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal. His lawyers have asked the Supreme Court to order that he be allowed to take the original offer. Lawyers say there is nothing wrong with holding prosecutors to offers they had once put forward, even years later.

Prosecutors agree in order to make lawyer more effective, constitutional regulation has to be applied to the area of plea bargaining.

Us Supreme Court to look into Bad Pleading

News report by Adhir Roy Chowdury