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Touro Law Review
Volume 29 | Number 3 Article 8
10-21-2013
A Criminal Quartet: The Supreme Court's Resolution of Four Critical Issues in the Criminal Justice System Richard Klein Touro Law Center, [email protected]
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Recommended Citation Klein, Richard (2013) "A Criminal Quartet: The Supreme Court's Resolution of Four Critical Issues in the Criminal Justice System," Touro Law Review: Vol. 29: No. 3, Article 8. Available at: http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8
603
A CRIMINAL QUARTET: THE SUPREME COURT’S
RESOLUTION OF FOUR CRITICAL ISSUES IN THE CRIMINAL
JUSTICE SYSTEM
Richard Klein *
I. Introduction ............................................................................604
II. Constitutional Protection for Rejection of Plea Offers ..........604
A. The Strickland Analysis ..................................................605
B. Strickland Analysis and Acceptance of a Plea Offer ......606
C. Recognizing Constitutional Protections for Rejecting a
Plea Bargain ....................................................................608
1. Missouri v. Frye: Did Counsel Act as a Reasonably
Competent Counsel Regarding Communication of
Plea Offers? ............................................................... 609
2. Lafler v. Cooper: Can a Guilty Verdict After Trial
Constitute Strickland Prejudice? ............................... 613
D. Implications of Frye and Lafler ......................................617
III. Abandonment of Client Severs Principal-Agent
Relationship in the Post Conviction Phase of a Death Penalty
Case ...............................................................................................619
IV. Does the Mandatory Imposition of Life Imprisonment
Without the Possibility of Parole for Juveniles Constitute Cruel
and Unusual Punishment? ................................................................625
V. Conclusion .............................................................................630
* Bruce K. Gould Distinguished Professor of Law, Touro Law Center; J.D., Harvard Law
School 1972. The author wishes to express his gratitude to the outstanding editorial and
writing assistance provided by Keri Mahoney, Associate Editor of the Touro Law Review in
the preparation of this Article.
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I. INTRODUCTION
The most recent Supreme Court term was one in which the
Court tackled several of the most critical issues that arise in our crim-
inal justice system. Perhaps most importantly, as the 50th Anniver-
sary of the Court’s decision in Gideon v. Wainwright 1 approached,
the Court addressed the problems presented by counsel who had not
provided the effective assistance of counsel during the plea bargain-
ing process. Whereas it was common knowledge that the vast ma-
jority of cases in the criminal courts of this country are resolved by
plea bargaining, the Court had never required that court-appointed
counsel provide competent advice when recommending rejection of a
plea offer by the prosecution. It had not even been constitutionally
required that counsel communicate to his client the existence of an
offer that entailed a reduced sentence were the defendant to plead
guilty. The Court also addressed the matter of what action by coun-
sel would constitute abandonment of the client in the post-conviction
phase of a case where the client had received the death penalty. And,
finally, the Court considered what had remained an unresolved issue:
was it constitutional to impose a sentence of life without parole for a
juvenile who had been convicted of murder.
II. CONSTITUTIONAL PROTECTION FOR REJECTION OF PLEA OFFERS
Claims of ineffective assistance of counsel are often raised by
criminal defendants who have either accepted or rejected a plea offer
based on counsel’s advice or actions. 2 The Supreme Court had pre-
viously applied a Strickland 3 analysis to claims of ineffective assis-
tance of counsel that arose from a defendant’s acceptance of a plea
bargain, 4 but until recently, had not yet provided an absolute declara-
1 372 U.S. 335 (1963).
2 See, e.g., Hill v. Lockhart, 474 U.S. 52 (1985).
3 466 U.S. 668, 686 (1984) (“The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”). 4
Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (finding that counsel’s failure to
advise his client of the immigration consequences of accepting a plea offer is constitutionally
2
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tion that criminal defendants are entitled to effective assistance of
counsel when rejecting a plea offer. This issue is of great importance
because, as the Court noted, the overwhelming majority of criminal
cases are resolved through the plea bargaining process. 5
A. The Strickland Analysis
The Sixth Amendment provides certain protections for crimi-
nal defendants, among them the right to “have the Assistance of
Counsel for his defence.” 6 In Strickland v. Washington,
7 the Supreme
Court determined that the standard for actual ineffectiveness is that
the “counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having pro-
duced a just result.” 8 The Court utilized a two-part test in order to de-
termine whether this standard is met. 9 Each part of the test is inter-
preted in a narrow manner, creating a high-bar for a criminal
defendant to overcome. 10
The first part of the analysis requires that the defendant
demonstrate that his “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amend-
ment.” 11
The Court stated that in performing this part of the analysis,
the courts should “indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable professional assis-
tance,” thus encouraging a highly deferential review. 12
A criminal
defendant is not guaranteed the right to flawless assistance of coun-
sel, but only that level of counsel that is reasonable under the circum-
stances. 13
The second part of the analysis requires that the defendant
deficient assistance of counsel); Hill, 474 U.S. at 57 (holding that the Strickland test applies
to a claim of ineffective assistance of counsel arising from a defendant’s acceptance of a plea
offer). 5
Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (“Ninety-seven percent of federal
convictions and ninety-four percent of state convictions are the result of guilty pleas.”). 6
U.S. CONST. amend. VI. 7
466 U.S. 668 (1984). 8
Id. at 686. 9
Id. at 687. 10
See Richard Klein, The Constitutionalization of Ineffective Assistance of Counsel, 58
MD. L. REV. 1433 (1999). 11
Strickland, 466 U.S. at 687. 12
Id. at 689. 13
Id. at 687.
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demonstrate that counsel’s unreasonable performance led to actual
prejudice. 14
In certain cases, such as attorney conflict of interest, the
courts may deem there to be a “limited[] presumption of prejudice.” 15
However, absent the use of such a presumption, the defendant must
show actual prejudice. 16
This typically requires more than “some
conceivable effect on the outcome of the proceeding.” 17
Rather, the
defendant must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 18
“A reasonable probability is a proba-
bility sufficient to undermine confidence in the outcome.” 19
There-
fore, the touchstone of a Strickland analysis is not an absolute enti-
tlement to high-quality counsel, but rather protection of the integrity
of the trial process. 20
B. Strickland Analysis and Acceptance of a Plea Offer
In Hill v. Lockhart, 21
a criminal defendant asserted a claim for
ineffective assistance of counsel based on his acceptance of a plea of-
fer and subsequent guilty plea. 22
The defendant claimed that his
counsel incorrectly advised him that he would only need to serve
one-third of his sentence before becoming eligible for parole, when,
in fact, he was not eligible for parole until he had served one-half of
his sentence. 23
The Court held that the Strickland analysis should be
applied in such circumstances in order to determine whether the de-
fendant had been deprived of effective assistance of counsel. 24
The Court in Lockhart had determined that in the context of
an accepted guilty plea, the first part of the Strickland test turns on
14 Id. The Court stated that a showing of prejudice is made only where the defendant
shows that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. 15
Strickland, 466 U.S. at 692; see United States v. Cronic, 466 U.S. 648 (1984) (such
a conflict creates a circumstance where prejudice is so likely that it is not worth the cost of
litigating every particular case). 16
Strickland, 466 U.S. at 693. 17
Id. 18
Id. at 694. 19
Id. 20
Id. at 686. 21
474 U.S. 52 (1985). 22
Id. at 53. 23
Id. at 54-55. 24
Id. at 57.
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whether “counsel’s advice ‘was within the range of competence de-
manded of attorneys in criminal cases.’ ” 25
The Court did not address
whether this part of the test had been met in Lockhart, but rather de-
termined that the ineffectiveness claim failed on the prejudice re-
quirement. 26
The Court concluded that the defendant’s parole eligi-
bility would have been different than his counsel had advised whether
he had taken the guilty plea or had proceeded to trial. 27
Therefore,
counsel’s error caused no prejudice because the defendant had not
demonstrated that there was a reasonable probability that the outcome
would have been different had his counsel had advised him correct-
ly. 28
More recently, in Padilla v. Kentucky, 29
the Court applied a
Strickland analysis to the situation where a defendant had suffered
significant consequences as a result of a guilty plea. 30
In Padilla, a
criminal defendant had pled guilty to drug charges based on the ad-
vice of his counsel. 31
The defendant was a lawful permanent resi-
dent, and his guilty plea subjected him to automatic deportation. 32
The deficiency in representation alleged by the defendant was that his
attorney had incorrectly informed him that his immigration status
would not be affected by the guilty plea. 33
It was alleged that, but for
this error, the defendant would not have pled guilty and instead
would have gone to trial. 34
The Court agreed, and found that this er-
roneous advice fell below the standard of a reasonably competent at-
torney, therefore the first part of the Strickland test was met. 35
The
25 Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
26 Hill, 474 U.S. at 60.
27 Id. (“Indeed, petitioner’s mistaken belief that he would become eligible for parole
after serving one-third of his sentence would seem to have affected not only his calculation
of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but
also his calculation of the time he likely would serve if he went to trial and were convict-
ed.”). 28
Id. 29
130 S. Ct. 1473 (2010). 30
Id. at 1478. 31
Id. 32
Id. at 1477-78. 33
Id. at 1478. 34
Padilla, 130 S. Ct. at 1478. 35
Id. at 1483. Padilla was the first time that the Court had applied Strickland to the
issue of whether the misadvice by counsel on an uncategorized consequence of a plea of
guilty could constitute a Sixth Amendment violation. Id. at 1482. Previous decision of the
Court had only required that counsel advise a client appropriately regarding the direct conse-
quences of a guilty plea. Id. at 1487 (Alito, J., concurring).
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Court remanded the case to the state court for a determination as to
whether the defendant had been prejudiced as a result of his counsel’s
error. 36
On remand, the Court of Appeals of Kentucky determined
that the defendant was, in fact, prejudiced by his counsel’s error; but
for that error, the defendant would have proceeded to trial. 37
Interest-
ingly, it was not required that the defendant demonstrate that he
would have been acquitted at trial in order to show prejudice; it was
enough that the defendant was deprived of the opportunity to go to
trial. 38
The prejudice suffered was the loss of the opportunity to force
the State to show his guilt beyond a reasonable doubt, and also the
loss of the possibility of accepting a different plea offer, which may
not have included provisions requiring mandatory deportation. 39
The
conviction, therefore, was vacated. 40
C. Recognizing Constitutional Protections for Rejecting a Plea Bargain
The Court has only recently addressed the issue of whether a
defendant’s rejection of a plea offer can create the basis of a claim for
ineffective assistance of counsel. In this context, the Court once
again turned to a Strickland analysis. 41
In the first of two companion
cases dealing with this issue, the Court applied the first prong of the
Strickland test, that is, what level of attorney performance is guaran-
teed by the Sixth Amendment when advising a defendant to reject a
plea offer. 42
In the second of the companion cases, the Court dealt
with the second prong of the Strickland analysis, that is, what quali-
fies as “prejudice” when a defendant rejects a plea offer. 43
36 Id. at 1487 (majority opinion).
37 Padilla v. Commonwealth, 381 S.W.3d 322, 330 (Ky. Ct. App. 2012).
38 Id. at 330.
39 Id.
40 Id. at 330-31. The Supreme Court recently revisited its holding in Padilla in a very
different context. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013) (determining
that the rule announced in Padilla does not apply retroactively). 41
Frye, 132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012). 42
Frye, 132 S. Ct. 1399. 43
Lafler, 132 S. Ct. 1376.
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1. Missouri v. Frye: Did Counsel Act as a
Reasonably Competent Counsel Regarding Communication of Plea Offers?
In Missouri v. Frye, 44
Galin Frye was charged with a Class D
felony for driving with a revoked license following three prior con-
victions for the same crime. 45
The charged crime carried a maximum
sentence of four years in prison. 46
Prior to the trial, the prosecutor
sent a letter to Frye’s counsel offering a choice of two plea bargains
which would expire just before Frye’s preliminary hearing. 47
Neither
offer was communicated to the defendant prior to his preliminary
hearing; the offers expired without Frye ever being aware of their ex-
istence. 48
After the expiration of the offers and just prior to Frye’s
preliminary hearing, Frye was again arrested for driving with a re-
voked license. 49
Frye pled guilty at his arraignment and, without the
benefit of any plea agreement, was sentenced to three years in pris-
on. 50
The defendant filed a motion for post-conviction relief, which
was denied by the trial court, but granted by the Missouri Court of
Appeals. 51
The trial court had reasoned that Frye’s basis for claiming
prejudice was his deprivation of the opportunity to plead guilty to a
lesser charge. 52
The court distinguished this from the Lockhart line
of cases based on the type of prejudice alleged by Frye. 53
Frye’s
complaint alleged that, but for counsel’s error, he would have taken
the plea offer; the defendant in Lockhart had alleged that but for
44 132 S. Ct. 1399 (2012).
45 Id. at 1404.
46 Id.
47 Id.
48 Id.
49 Frye, 132 S. Ct. at 1404.
50 Id. at 1404-05. Ironically, the Prosecutor recommended the same sentence as he
would have pursuant to one of the plea offers, and the Court’s sentence followed along the
lines of the Prosecutor’s recommendation. Id. 51
Id. at 1405. The Missouri Court of Appeals applied a Strickland analysis in reaching
the conclusion that counsel had been constitutionally inefficient. Id. 52
Frye v. State, No. 08BA-CV03050, 2008 WL 8185677 (Mo. Cir. Nov. 18, 2008),
rev’d, Frye v. State, 311 S.W.3d 350 (Mo. Ct. App. 2010), vacated, Frye, 132 S. Ct. 1399. 53
Id.
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counsel’s error, he would have opted to go to trial. 54
The trial court
reasoned that this distinction was significant because, while there is a
constitutional entitlement to a full and fair trial, there is no entitle-
ment to receive a plea offer. 55
Furthermore, the prosecutor had with-
drawn the plea offer, and the court could not force the prosecutor to
reinstate the offer. 56
Therefore, defendant failed to allege prejudice
rising to level sufficient to meet the Strickland test. 57
The Missouri Court of Appeals reversed the trial court, find-
ing that both parts of the Strickland test were met. 58
The Court rea-
soned that failure to communicate a plea offer could not be justified
by any conceivable trial strategy, and, therefore, representation fell
below that of a reasonably competent attorney. 59
Further, the Court
reasoned that Frye was, in fact, prejudiced, because but for counsel’s
error, Frye would have pled guilty to a much lesser charge. 60
The
Court determined that this was enough to create prejudice sufficient
to satisfy the second part of the Strickland test. 61
On appeal to the Supreme Court, the State’s argument hinged
on the theory that a criminal defendant “has no right to plea bargain,
and a plea bargain standing alone has no constitutional signifi-
cance.” 62
Therefore, even though the defendant was not informed of
the plea offer, he was not deprived of any constitutional substantive
or procedural right. 63
The Court was asked to adopt the view that in
order to make a showing of prejudice sufficient to satisfy the Strick-
land test, the defendant must suffer more than just a less favorable
outcome; rather, the defendant must suffer the loss of a “substantive
or procedural right.” 64
In support of the prosecution, the Attorneys General from
twenty-nine states joined together to submit an amicus brief. 65
The
54 Id.
55 Id.
56 Id.
57 Frye, 2008 WL 8185677.
58 Frye v. State, 311 S.W.3d 350, 356-57 (Mo. Ct. App. 2010), vacated, Frye, 132 S.
Ct. 1399. 59
Id. at 354. 60
Id. at 360. 61
Id. 62
Brief for Petitioner at 9, Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444). 63
Id. at 10. 64
Id. 65
Brief of Amici Curiae Connecticut and 28 Other States in Support of Petitioner at 4,
Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444).
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states argued that the touchstone of the analysis of a claim of ineffec-
tive assistance of counsel is fairness of the trial process. 66
The failure
to communicate the plea offer did not undermine the adversarial pro-
cess or interfere with “the State’s obligation to provide a fair and reli-
able process for adjudication,” and, therefore, there was no constitu-
tional violation. 67
Additionally, the United States submitted an
amicus brief in support of the prosecution. 68
The United States ar-
gued that counsel’s “failure to communicate a plea offer does not
prejudice a defendant under Strickland because it does not render the
defendant’s subsequent conviction or sentence unreliable or deprive
the defendant of a right that he would have been entitled to assert in
his defense.” 69
In support of Frye, the Constitution Project submitted an ami-
cus brief arguing that the plea bargaining process is entitled to the
protections of the Sixth Amendment. 70
The Constitution Project em-
phasized the prevalence of plea bargaining in the criminal justice sys-
tem, and urged the Court to apply the Sixth Amendment protections
to all parts of the adversarial process (not just the trial itself). 71
The
Constitution Project argued that counsel’s failure to communicate the
plea offer to defendant caused a breakdown in the adversarial process
that was not cured by defendant’s later guilty plea. 72
The defendant
had maintained that he entered into a guilty plea without being aware
of the earlier plea offer, and “[t]his lack of awareness undermine[d]
the reliability of the plea and render[ed] it fundamentally unfair.” 73
Justice Kennedy wrote the opinion of the five-justice majori-
ty, holding that the plea bargaining process is entitled to Sixth
Amendment protection. 74
The majority recognized that plea bargain-
ing is “not some adjunct to the criminal justice system; it is the crim-
inal justice system.” 75
The Court set out a general rule that “defense
66 Id.
67 Id. at 6.
68 Brief for the United States as Amicus Curiae Supporting Petitioner, Missouri v.
Frye, 132 S. Ct. 1399 (2012) (No. 10-444). 69
Id. at 12-13. 70
Brief for the Constitution Project as Amicus Curiae in Support of Respondents at 5,
Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444) and Lafler v. Cooper, 132 S. Ct. 1376
(2012) (No. 10-209). 71
Id. at 5-6. 72
Id. 73
Brief for Respondent at 7, Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444). 74
Frye, 132 S. Ct. at 1408. 75
Id. at 1407 (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as a Con-
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counsel has the duty to communicate formal offers from the prosecu-
tion to accept a plea on terms and conditions that may be favorable to
the accused.” 76
By failing to even communicate the offer to the de-
fendant, the attorney’s conduct fell below that of the reasonably
competent attorney guaranteed by the Constitution. 77
The Court re-
ferred to the standards of professional practice set forth by the Amer-
ican Bar Association which require defense counsel to communicate
all plea offers in a prompt manner. 78
The Supreme Court, however, disagreed with the finding of
prejudice of the Court of Appeals. 79
The Court recognized that alt-
hough the defendant likely would have accepted the plea offer, in or-
der to make a showing of prejudice under Strickland, the defendant
must demonstrate that the prosecution would have adhered to the of-
fer, and that the court would have accepted the terms of the offer. 80
The Court recognized that these are state-law issues, and therefore
remanded to the state court for further determination as to the preju-
dice requirement under Strickland. 81
The four-justice dissent, led by Justice Scalia, disagreed with
the protections given to the plea bargaining process and instead rea-
soned that “[c]ounsel’s mistake did not deprive Frye of any substan-
tive or procedural right; only of the opportunity to accept a plea bar-
gain to which he had no entitlement in the first place.” 82
Additionally, the dissent noted that the process leading to the defend-
ant’s conviction was fair and, through his own guilty plea, “the de-
fendant acknowledged the correctness of his conviction.” 83
There-
fore, although the dissent agreed that defense counsel did not act as a
reasonably competent attorney, the dissent concluded that the errors
made by defense counsel did not cause prejudice within the meaning
tract, 101 YALE L.J. 1909, 1912 (1992)). 76
Id. at 1408. 77
Id. The Court had noted in McMann that it was the responsibility of the Court that
no criminal defendant be left to “the mercies of incompetent counsel.” 397 U.S. 759, 771
(1970). 78
Frye, 132 S. Ct. at 1408; see also ABA Standards for Criminal Justice, Pleas of
Guilty 14-3.2(a) (3d ed. 1999) (imposing on counsel a duty to “promptly communicate and
explain to the defendant all plea offers made by the prosecuting attorney”). 79
Frye, 132 S. Ct. at 1410. 80
Id. at 1410-11. 81
Id. at 1411. 82
Id. at 1412 (Scalia, J., dissenting). 83
Id.
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of Strickland. 84
2. Lafler v. Cooper: Can a Guilty Verdict After Trial Constitute Strickland Prejudice?
In the second companion case, Lafler v. Cooper, 85
the Court
expanded on the Frye holding by further examining the relationship
between the rejection of a plea offer and Strickland prejudice. 86
Frye
and Lafler are distinguishable on one critical fact: Frye plead guilty
to the underlying charge after rejecting the plea offer, 87
while Cooper
(the defendant in Lafler) was found guilty following a full trial after
rejecting the plea offer. 88
Therefore, the State’s argument relied
heavily on the theory that any constitutional deficiency at the plea
bargaining stage was cured by the completion of the trial process. 89
Cooper was charged with “assault with intent to murder, pos-
session of a firearm by a felon, possession of a firearm in the com-
mission of a felony, misdemeanor possession of marijuana, and for
being a habitual offender.” 90
The charges arose following an incident
where Cooper aimed a gun at a woman’s head, fired once and missed,
and then chased her and fired multiple shots at her as she fled from
him. 91
It is unclear why Cooper engaged in this conduct, but at trial
there were suggestions of self-defense or defense of others. 92
The
charges carried a mandatory minimum sentence of 185 to 360
months’ imprisonment. 93
Cooper was offered a fifty-one month sentence in exchange
for pleading guilty to the charge of assault with a deadly weapon. 94
Cooper’s counsel discouraged Cooper from taking the plea, and in-
stead advised Cooper that because of the location of the gunshot
wounds on the victim (all below the waist) the prosecution would not
84 Frye, 132 S. Ct. at 1413 (Scalia, J., dissenting).
85 132 S. Ct. 1376 (2012).
86 Id.
87 Frye, 132 S. Ct. at 1404.
88 Lafler, 132 S. Ct. at 1383.
89 Id. at 1385.
90 Id. at 1383.
91 Id.
92 Id.
93 Lafler, 132 S. Ct. at 1383.
94 Id.
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be able to prove that Cooper had acted with intent to murder. 95
The
case proceeded to trial and the necessary level of intent was found
despite the location of the gunshot wounds. 96
Cooper was sentenced to a mandatory minimum sentence of
185 months in prison, more than 3.5 times what he would have re-
ceived if he had instead accepted the prosecution’s plea offer. 97
Cooper later filed a federal habeas petition claiming ineffective assis-
tance of counsel. 98
The district court and the Sixth Circuit deter-
mined that the incorrect legal advice of the attorney had rendered
counsel’s performance constitutionally ineffective. 99
At the Supreme
Court level, the state conceded that defense counsel had acted in a de-
ficient manner by advising the client that there was no chance he
could be found guilty of the crime. 100
Therefore, the only question
left for the Court was whether Cooper suffered prejudice within the
meaning of Strickland as a result of his rejection of the plea offer. 101
The state argued that Cooper did not suffer any prejudice be-
cause “he received a fair and constitutional trial.” 102
Therefore, the
integrity of the adversarial process remained intact and the Sixth
Amendment was not violated. 103
Furthermore, Cooper failed to make
a showing that “counsel’s conduct deprived him of any substantive or
procedural right.” 104
In support of Lafler, the Warden of a Michigan
Correctional Facility, the United States filed an amicus brief, 105
as did
Wayne County, Michigan, 106
and twenty-seven states. 107
Additional-
95 Id.
96 Id.
97 Id. at 1383, 1386.
98 Lafler, 132 S. Ct. at 1383.
99 See Cooper v. Lafler, 376 F. App’x 563, 564 (6th Cir. 2010), vacated by Lafler, 132
S. Ct. 1376 (2012). 100
Lafler, 132 S. Ct. at 1384 (“In this case all parties agree the performance of re-
spondent’s counsel was deficient when he advised respondent to reject the plea offer on the
grounds he could not be convicted at trial.”). 101
Id. at 1385 (“Having to stand trial, not choosing to waive it, is the prejudice al-
leged.”). 102
Brief for the Petitioner at 10-11, Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-
209). 103
Id. 104
Id. at 11. 105
Brief for the United States as Amicus Curiae Supporting Petitioner, Lafler v.
Cooper, 132 S. Ct. 1376 (2012) (No. 10-209). 106
Brief of Wayne County, Michigan as Amicus Curiae in Support of Petitioner,
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209). 107
Brief of Amici Curiae Connecticut and 26 Other States in Support of Petitioner,
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ly, the Criminal Justice Legal Foundation joined with the National
District Attorneys Association echoing the arguments of the state that
there was no entitlement to a plea bargain and contending that to “af-
ford the right to a more favorable outcome via the right to effective
assistance of counsel is to grant defendants a windfall the Sixth
Amendment does not require.” 108
Additionally, these amici main-
tained that the procedures (either a subsequent trial or admission of
guilt) following a rejection of a plea offer “should be reviewed for re-
liability and fairness,” in essence, shifting the inquiry from the fair-
ness of the rejection of the plea offer, to the fairness of the subse-
quent process leading to the ultimate guilty verdict. 109
Cooper claimed that the protections of the Sixth Amendment
apply to all “critical stages of a criminal prosecution,” and not just to
the trial itself. 110
Cooper maintained that he was, in fact, prejudiced
by the unreasonable conduct of his counsel because, but for this con-
duct, Cooper would have accepted the favorable plea. 111
Therefore,
he has been deprived of “the right to make an informed choice re-
garding the State’s offered plea bargain,” a deprivation that was not
cured by his subsequent trial. 112
Four amicus briefs were submitted
by various organizations in support of Cooper. 113
The American Bar
Association emphasized that since nearly 95% of criminal trials are
resolved by plea bargaining, it was crucial to ensure effective assis-
tance of counsel during the plea bargaining phase. 114
The National
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209). 108
Brief Amici Curiae of the Criminal Justice Legal Foundation and the National Dis-
trict Attorneys Association in Support of Petitioners at 6, Lafler v. Cooper, 132 S. Ct. 1376
(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444). 109
Id. 110
Brief of Respondent Anthony Cooper at 9, Lafler v. Cooper, 132 S. Ct. 1376 (2012)
(No. 10-209). 111
Id. at 9-10. 112
Id. at 10. 113
Brief of Amicus Curiae Center on the Administration of Criminal Law, New York
University School of Law, Supporting Respondents, Lafler v. Cooper, 132 S. Ct. 1376
(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444); Brief of the
Nat’l Ass’n of Criminal Def. Lawyers et al. as Amici Curiae in Support of Respondents,
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399
(2012) (No. 10-444) [hereinafter Respondents NACDL Brief]; Brief of the American Bar As-
sociation as Amicus Curiae in Support of Respondents, Lafler v. Cooper, 132 S. Ct. 1376
(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444) [hereinafter
ABA Brief]; Brief for the Constitution Project as Amicus Curiae in Support of Respondents,
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399
(2012) (No. 10-444). 114
ABA Brief, supra note 113, at 4-5.
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Association of Criminal Defense Lawyers, the Connecticut Criminal
Defense Lawyers Association, and the American Civil Liberties Un-
ion Foundation argued that a subsequent trial or less favorable plea
does not cure the constitutional violation that occurs when a criminal
defendant rejects a plea offer due to attorney incompetence and then
becomes the recipient of a harsher sentence. 115
Justice Kennedy wrote for the five-justice majority which
held that when a criminal defendant rejects a plea offer as a result of
his counsel’s deficient performance, the defendant would be preju-
diced only if four additional elements are met: (1) the prosecution
would not have withdrawn the offer; (2) the defendant would have
accepted the offer; (3) the court would have accepted the defendant’s
guilty plea; and (4) the rejected plea offer was more favorable for the
defendant than was the sentence imposed after trial. 116
These addi-
tional elements are required in order to confirm that the outcome of
the plea process would have been different if the defendant had had
reasonably competent counsel. 117
Furthermore, the Court determined
that the proper remedy is not specific performance of the missed plea
opportunity, but rather to “order the State to reoffer the plea agree-
ment.” 118
If the defendant should accept the plea offer, it is then left
to the discretion of the trial court to determine whether and to what
extent the terms of the plea should be accepted by the court. 119
The first dissenting opinion, authored by Justice Scalia who
was joined by Justice Thomas and Chief Justice Roberts, disagreed
with the constitutionalization of the plea-bargaining process as well
as the remedy proposed by the Court. 120
These Justices maintained
that any result which follows a full and fair trial cannot be deemed a
prejudicial outcome. 121
Justice Alito authored a separate dissent
which highlighted his concerns about the remedy set forth by the
Court, as well as stating concerns that the majority holding “misap-
115 Respondents NACDL Brief, supra note 113, at 2.
116 Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).
117 Id. at 1384-85.
118 Id. at 1391.
119 Id.
120 Id. (Scalia, J., dissenting).
121 Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting) (“Anthony Cooper received a full
and fair trial, was found guilty of all charges by a unanimous jury, and was given the sen-
tence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to
some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent ad-
vice regarding a plea offer caused him to receive a full and fair trial.”).
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plies our ineffective-assistance-of-counsel case law and violates the
requirements of the Antiterrorism and Effective Death Penalty Act of
1996.” 122
Alito opposed the propriety of finding prejudice when a de-
fendant has received a full trial that had been free of any identifiable
constitutional error. 123
D. Implications of Frye and Lafler
Both Frye and Lafler demonstrate that a criminal defendant
can successfully assert a Sixth Amendment claim if counsel either
recommends or causes a defendant to reject a plea offer, provided
that both prongs of the Strickland test are met. 124
Frye takes the ini-
tial step by acknowledging that the plea bargaining process is entitled
to the protections of the Sixth Amendment, 125
while Lafler provides
some guidance as to how to determine whether a defendant is preju-
diced by his failure to accept a plea offer. 126
As a result of Frye and
Lafler, some courts have started to insist that plea offers be made in
writing. 127
Some judges also question the defendant before trial and
on the record in order to establish that the defendant knows of the
plea offer and understands the consequences of refusing that offer. 128
However, this formal emphasis on the harsh consequence of not ac-
cepting the plea offer may place a certain level of coercion on the de-
fendant. 129
It is not entirely clear that greater judicial involvement in
plea bargaining is to be desired. 130
Often, the plea bargaining process
is an informal “meet them and plead them” process resulting from a
quick conversation that occurs without any prior investigation on the
part of the defense attorney. And any plea of guilty that is entered
entails the defendant’s waiving the right to confront witnesses, 131
the
122 Id. at 1398 (Alito, J., dissenting).
123 Id. at 1398-99.
124 Id. at 1390-91 (majority opinion); Frye, 132 S. Ct. 1399, 1411 (2012).
125 Frye, 132 S. Ct. at 1411.
126 Lafler, 132 S. Ct. at 1385.
127 A Broader Right to Counsel, N. Y. TIMES, Mar. 22, 2012, http://www.nytimes.com/
2012/03/23/opinion/a-broader-right-to-counsel.html?_r=0. 128
Id. 129
Jed S. Rakoff, Frye and Lafler: Bearers of Mixed Messages, 122 YALE L.J 25, 26
(2012), available at http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/supreme-court
/frye-and-lafler:-bearers-of-mixed-messages/. 130
Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining
Process, 32 HOFSTRA L. REV. 1349, 1423 (2004). 131
Boykin v. Alabama, 395 U.S. 238, 243 (1969).
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right to challenge the introduction of evidence that can be used
against him, 132
and the right to have a trial before a jury of his
peers. 133
The American Bar Association Standards for Criminal Justice
warn defense counsel that “[u]nder no circumstances should defense
counsel recommend to a defendant acceptance of a plea unless ap-
propriate investigation and study of the case has been completed, in-
cluding an analysis of controlling law and the evidence likely to be
introduced at trial.” 134
In order to properly reach an informed deci-
sion to recommend acceptance of a plea, investigation is needed to
accurately ascertain the strength of the prosecutor’s case and the like-
lihood of conviction. Ideally, the effective counsel will contact wit-
nesses, investigate any possible defenses, and analyze any police
misconduct which might lead to a successful motion to suppress evi-
dence that is required to convict the defendant. The information that
a competent counsel may obtain from a thorough investigation which
reveals weaknesses in the prosecution’s case may then be used as part
of the plea negotiations to obtain a more favorable plea than might
otherwise have been the case. To be sure, the decision to enter a plea
of guilty is for the defendant, and not counsel, to make; 135
one can
hope that the Lafler and Frye holdings will lead more counsel to rec-
ognize and honor their obligation to provide competent assistance
during the plea bargaining process.
A potentially significant result that may be forthcoming from
Frye and Lafler is the impact on systemic public defense litigation.
Insufficient time available for defenders to act competently due to
excessively high and unmanageable caseloads create the precise
problems that the Court had addressed. In recent years, the recession
has impacted the providers of indigent defense services with full
force as states find themselves with diminished resources. 136
Legisla-
tures have proven themselves unwilling and unable to provide ade-
quate funding, and the courts’ expansion of the rights afforded indi-
132 McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
133 Brady v. United States, 397 U.S. 742, 748 (1970).
134 STANDARDS FOR CRIMINAL JUSTICE 4-6.1(b) (3d ed.1993).
135 See MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2012) (“In a criminal case, the
lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to
be entered . . . .”). 136
See Richard Klein, The Role of Defense Counsel in Ensuring a Fair Justice System,
THE CHAMPION, June 2012, at 38, available at http://www.nacdl.org/Champion.aspx?id=
24996#.USj4QVchWZQ.
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viduals under the Sixth Amendment can prove to be of critical assis-
tance. Cases such as Hurrell-Harring v. State, 137
Duncan v. State, 138
and the ongoing litigation in Florida 139
may find new strength from
Lafler and Frye in challenging in the inadequacy of funding which
leads to ineffective representation during the plea bargaining process.
III. ABANDONMENT OF CLIENT SEVERS PRINCIPAL-AGENT RELATIONSHIP IN THE POST CONVICTION PHASE OF A DEATH PENALTY CASE
In another recent case, the Supreme Court found cause to ex-
cuse a procedural default stemming from attorney error in the post-
conviction phase of a criminal case. 140
The defendant, Maples, had
received the death penalty when he was convicted of murdering two
individuals with whom he had been out on the town, drinking. 141
Maples had filed a petition for post-conviction relief claiming inef-
fective assistance of counsel and various other deficiencies which had
occurred throughout the trial. 142
Sullivan & Cromwell, a large law
firm whose partners are known to charge legal fees in excess of
$1000 per hour, represented Maples pro bono during the post-
conviction phase of his case. 143
The Sullivan & Cromwell associates that represented Maples
during the post-conviction phase left the firm without notifying Ma-
ples or the Alabama court handling Maples’ case. 144
These attorneys
took positions at firms which precluded them from continuing to rep-
resent Maples. 145
Sullivan & Cromwell maintained that there was
some understanding that there would be new representation for Ma-
ples within the firm; however no new attorney sought admission to
the Alabama bar, and the original attorneys failed to formally with-
137 930 N.E.2d 217 (N.Y. 2010) (presenting a claim for the constructive denial of the
Sixth Amendment right to counsel). 138
488 Mich. 957 (2010). 139
See Wayne A. Logan, Litigating the Ghost of Gideon in Florida: Separation of
Powers as a Tool to Achieve Indigent Defense Reform, 75 MO. L. REV. 885, 891-97 (2010). 140
Maples v. Thomas, 132 S. Ct. 912, 927 (2012). 141
Adam Liptak, A Mailroom Mix-Up that Could Cost a Life, N.Y. TIMES, Aug. 2,
2010, http://www.nytimes.com/2010/08/03/us/03bar.html?_r=0. 142
Maples, 132 S. Ct. at 916. 143
Liptak, supra note 141. 144
Maples, 132 S. Ct. at 919. 145
Lance J. Rogers, Blown Deadline Doesn’t Sink Habeas Review Where Pro Bono
Lawyers Abandoned Client, CRIMINAL LAW REPORTER, Jan. 25, 2012.
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draw from the case. 146
The Alabama court sent two copies of an order denying Ma-
ples’ petition for post-conviction relief to the attorneys of record at
the Sullivan & Cromwell office; these letters were returned unopened
with notations on the outside of the envelope stating, “Return to
Sender—Attempted Unknown,” and “Return to Sender—Left
Firm.” 147
The statutory timeframe for filing an appeal lapsed, and no
appeal was filed on Maples’ behalf. 148
Maples turned to the federal
courts for relief after his request for “an out of time” appeal was de-
nied by the State courts. 149
The federal district court denied Maples’ petition for writ of
habeas corpus, and the Eleventh Circuit affirmed the denial. 150
The
Eleventh Circuit reasoned that the statutory timeframe for filing an
appeal represented a procedural bar that was “firmly established and
regularly followed by the Alabama courts and [was] not applied in an
unprecedented or arbitrary fashion.” 151
Therefore, Maples’ federal
habeas claim was barred because the denial of the out-of-time appeal
rested on “adequate, independent state law procedural rules” that
were applied in a consistent and non-arbitrary fashion. 152
The Elev-
enth Circuit rationalized this harsh decision by shifting the blame for
the procedural default to Maples, stating that “Maples relied exclu-
sively on his counsel and made no attempt to deal directly with the
state trial court or its clerk, or to keep himself apprised directly of the
developments in his case.” 153
The Eleventh Circuit further determined that Maples’ proce-
dural default was inexcusable. 154
The Eleventh Circuit reasoned that
146 Id.
147 Liptak, supra note 141; see also Maples v. Allen, 586 F.3d 879, 884 (11th Cir.
2009) (stating that it was undisputed that the clerk sent copies of the order denying defend-
ant’s petition for post-conviction relief to Sullivan & Cromwell and that the order was re-
ceived by Sullivan & Cromwell and returned, unopened, to the court), rev’d sub nom. Ma-
ples v. Thomas, 132 S. Ct. 912 (2012). 148
Maples, 586 F.3d at 884 (“Neither Maples nor any of his three attorneys filed a no-
tice of appeal from the dismissal of Maples’s Rule 32 petition within the 42 days required by
Alabama Rule of Appellate Procedure 4(b)(1).”). 149
Id. at 887. 150
Id. at 895. 151
Id. at 888. 152
Id. at 890. 153
Maples, 586 F.3d at 890. 154
Id. at 891 (“Here, the factor that resulted in Maples’s default—namely, counsel’s
failure to file a timely notice of appeal . . . cannot establish cause for his default because
there is no right to post-conviction counsel.”).
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the procedural default could be excused only if Maples could demon-
strate either “a fundamental miscarriage of justice” or “cause for and
actual prejudice [resulting] from the default.” 155
The Eleventh Circuit
concluded that a deficiency in counsel’s performance in the post-
conviction phase does not establish cause to excuse the procedural
default because the constitutional right to effective assistance of
counsel does not extend to the post-conviction phase. 156
To reach this
conclusion, the Eleventh Circuit relied on Supreme Court precedent
which seemingly barred a finding of “cause” in the circumstances
presented in Maples. 157
It was this portion of the decision that com-
prised the issue for appeal before the Supreme Court. 158
Numerous amici briefs were filed with the Court in support of
Maples. 159
These amici contended that the procedural default was the
fault of Sullivan & Cromwell and of the Alabama court clerk, and
was certainly not the fault of Maples. 160
The combination of Maples’
apparent blamelessness for the default and the severity of the pun-
ishment (deprivation of federal review of a death sentence convic-
tion) created a unique situation before the Court—one that required a
departure from earlier jurisprudence of the Court requiring the client
to suffer the consequence of his attorney’s mistakes. 161
Only two amicus briefs were filed in support of the prosecu-
155 Id. at 890.
156 Id. at 891.
157 Id. (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
158 Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (“We granted certiorari to decide
whether the uncommon facts presented here establish cause adequate to excuse Maples’ pro-
cedural default.”). 159
See Brief of Amicus Curiae Alabama Criminal Defense Lawyers Association in
Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63); Brief of Amica
Curiae Deborah A. Demott in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912
(2012) (No. 10-63); Brief of Amicus Curiae NAACP Legal Defense & Educational Fund,
Inc. in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63) [herein-
after NAACP Brief]; Brief for the National Association of Criminal Defense Lawyers et al.
as Amici Curiae Supporting Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-
63) [hereinafter Petitioner’s NACDL Brief]; Brief of Legal Ethics Professors and Practition-
ers and the Ethics Bureau at Yale as Amici Curiae in Support of Petitioner, Maples v. Thom-
as, 132 S. Ct. 912 (2012) (No. 10-63); Brief of Amici Curiae Alabama Appellate Court Jus-
tices and Bar Presidents in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012)
(No. 10-63); Brief for Amici Curiae the Constitution Project and Cato Institute in Support of
Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63). 160
Petitioner’s NACDL Brief, supra note 159, at 3-4 (“Alabama seeks to execute peti-
tioner without any federal court review of serious constitutional errors because of a missed
filing deadline that everyone agrees was not his fault.”). 161
NAACP Brief, supra note 159, at 1-3.
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tion. 162
These organizations argued that habeas review is meant to be
a limited review, rather than a mechanism of “extensive relitigation
of state criminal cases.” 163
Therefore, the procedural default should
not be excused because there has not been a miscarriage of justice. 164
Additionally, the Attorneys General of multiple states argued that this
case is indistinguishable from earlier cases where the Court created
the bright-line rule that “no cause exists to excuse a procedural de-
fault when a petitioner’s state habeas counsel errs.” 165
The Supreme Court reversed the decision of the Eleventh Cir-
cuit and determined that there was, in fact, cause to excuse the proce-
dural default. 166
The Court characterized the conduct leading to the
procedural default in harsh terms, noting that when the letters arrived
at Sullivan & Cromwell, they were sent back to the court rather than
“forwarded to another Sullivan & Cromwell attorney.” 167
The Court
also noted that the Alabama court clerk “took no further action” when
he received the returned, unopened letters from Sullivan & Crom-
well, and that no attempts were made to contact the counsel of record
“at the personal telephone numbers or home addresses they had pro-
vided in their pro hac vice applications.” 168
Further, the Court ob-
served that the clerk made no other efforts to contact Sullivan &
Cromwell, or the Alabama attorney overseeing the pro hac vice work
of the New York based Sullivan & Cromwell attorneys. 169
Addition-
ally, the Alabama attorney overseeing the pro hac vice work took no
action, despite receiving his copy of the letter. 170
It was only when
Maples himself was prompted to contact his mother, after receiving a
letter directly from the Alabama Assistant Attorney General notifying
him that he had missed the deadline to file an appeal, that any action
was taken on behalf of Maples. 171
As the Eleventh Circuit observed, the Supreme Court has his-
162 See Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of
Respondent, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63) [hereinafter CJLF Brief];
Brief of Texas et. al as Amici Curiae In Support of Respondent, Maples v. Thomas, 132 S.
Ct. 912 (2012) (No. 10-63) [hereinafter States Brief]. 163
CJLF Brief, supra note 162, at 4-5. 164
Id. 165
States Brief, supra note 162, at 1. 166
Maples v. Thomas, 132 S. Ct. 912, 917 (2012). 167
Id. at 920. 168
Id. 169
Id. 170
Id. 171
Maples, 132 S. Ct. at 920.
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torically treated the attorney as the client’s agent during the post-
conviction phase; therefore, under basic theories of agency law, the
defendant (principal) generally is left to suffer the negative conse-
quences associated with his agent’s negligence. 172
For example, in
Coleman v. Thompson, 173
Coleman had been convicted under Virgin-
ia state law for rape and capital murder and was sentenced to death. 174
Coleman’s appeal to the Virginia Supreme Court was dismissed be-
cause it was filed outside of the statutory timeframe for filing an ap-
peal. 175
Coleman sought federal habeas relief following the proce-
dural default. 176
The district court and the Fourth Circuit determined
that Coleman’s claim for federal relief was barred because the proce-
dural bar (the timeframe for filing for an appeal) was an adequate and
independent state law rule which was fairly applied by the State, and
that Coleman had failed to show cause to excuse the procedural de-
fault. 177
At the Supreme Court level, Coleman argued that there was
cause to excuse the procedural default because the default was the re-
sult of attorney error. 178
The Court disagreed, and instead determined
Coleman’s argument was “contrary to well-settled principles of agen-
cy law.” 179
The Court stated that “the attorney is the [client’s] agent
when acting or failing to act, in furtherance of the litigation, and the
[client] must ‘bear the risk of attorney error.’ “ 180
The Court
acknowledged that there is an exception to this rule if the attorney er-
ror violates a constitutional right of the defendant; however, there is
no constitutional right to effective assistance of counsel during the
post-conviction phase. 181
The Court determined that, absent a consti-
tutional right to effective assistance of counsel, agency law governs
172 Coleman, 501 U.S. at 757 (1991) (“Because Coleman had no right to counsel to
pursue his appeal in state habeas, any attorney error that led to the default of Coleman’s
claims in state court cannot constitute cause to excuse the default in federal habeas.”). 173
501 U.S. 722 (1991). 174
Id. at 726-27. 175
Id. at 727-28. 176
Id. at 728. 177
Id. at 728-29. 178
Coleman, 501 U.S. at 752 (“Coleman maintains that there was cause for his default.
The late filing was, he contends, the result of attorney error of sufficient magnitude to excuse
the default in federal habeas.”). 179
Id. at 754. 180
Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). 181
Id. at 752-54. The Court stated in unequivocal terms that “[t]here is no constitu-
tional right to an attorney in state post-conviction proceedings.” Id. at 752.
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claims of error during the post-conviction phase; therefore, the client
“bear[s] the risk of attorney error that results in procedural de-
fault.” 182
The facts of Maples differed from the facts of Coleman in one
important respect—the late-filing in Maples was due to complete
abandonment of the client, rather than simple attorney error. 183
This
distinction allowed the Court to find cause to excuse Maples’ proce-
dural default, despite the Court’s longstanding history of refusal to
find cause to excuse procedural defaults resulting from attorney error
in the post-conviction phase. 184
In Maples, the Court reasoned that
the abandonment of Maples severed the principal-agent relation-
ship. 185
Therefore, at the time of the procedural default, the attorney
was not the agent of Maples, and Maples could not be left to suffer
the consequences of the attorney’s failures or omissions. 186
Although
the outcome in Maples was different than the outcome in Coleman, in
both cases the Court relied on basic agency law, rather than the
recognition of a constitutional right of the defendant, in order to de-
termine whether there was cause to excuse a procedural default at the
post-conviction phase. 187
Accordingly, Maples represents a new ap-
plication of a long-standing rule, and the holding is sufficiently nar-
rowed to apply only in cases of client abandonment at the post-
conviction phase. 188
Justice Scalia and Justice Thomas wrote separately, not to dis-
sent from the underlying reasoning of the court, but rather because
they did not believe the principal-agent relationship in this case to
182 Coleman, 501 U.S. at 752-53.
183 Compare Coleman, 501 U.S. 722 (1991) (showing post-conviction federal habeas
proceeding where procedural default resulted from late filing of appeal with no mention of
client abandonment), with Maples, 132 S. Ct. 912 (2012) (showing post-conviction federal
habeas proceeding where procedural default resulted from late filing of appeal as a result of
abandonment of client by attorney). 184
Maples, 132 S. Ct. at 922 (“A markedly different situation is presented, however,
when an attorney abandons his client without notice, and thereby occasions the default.”). 185
Id. at 922-23 (“Having severed the principal-agent relationship, an attorney no
longer acts, or fails to act, as the client’s representative.”). 186
Id. at 923. 187
See id. (finding cause to excuse a procedural default based on severance of the
principal-agent relationship); Coleman, 501 U.S. at 753-54 (finding no cause to excuse pro-
cedural default because attorney acts as agent for client-principal). 188
Maples, 132 S. Ct. at 927 (“In the unusual circumstances of this case, principles of
agency law and fundamental fairness point to the same conclusion: There was indeed cause
to excuse Maples’ procedural default.” (emphasis added)).
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have been effectively severed. 189
The dissent reasoned that Maples
was represented by the firm of Sullivan & Cromwell, rather than the
two individual associates in charge of Maples’ case. 190
Therefore,
despite the departure of the two associates in charge of Maples’ case,
Sullivan & Cromwell still remained the agent of Maples, and Maples
should, therefore, carry the burden of his agent’s errors. 191
Further,
the dissent acknowledged the ongoing involvement of John Butler
(the local counsel who was responsible for oversight of the New
York-based Sullivan & Cromwell attorneys). 192
Although Butler was
not meant to have “substantive involvement” with the case, the dis-
sent believed Butler’s involvement “would surely include, at a mini-
mum, keeping track of local court orders and advising ‘substantive’
counsel of impending deadlines.” 193
Despite the dissent’s reserva-
tions as to whether the principal-agent relationship had been severed,
there was basic agreement with the reasoning of the majority that if
the relationship had been severed, the client would not bear the bur-
den of the attorney’s mistakes. 194
IV. DOES THE MANDATORY IMPOSITION OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR JUVENILES CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT?
In Graham v. Florida, 195
the Supreme Court held that it was
unconstitutional to sentence a juvenile to life without parole for a
non-homicide crime, 196
but left open the question of whether life
189 Id. at 930 (Scalia, J., dissenting).
190 Id.
191 Id. at 931.
192 Id. at 932.
193 Maples, 132 S. Ct. at 932 (Scalia, J., dissenting).
194 Id. at 930 (“[T]he Court is correct to conclude that a habeas petitioner’s procedural
default may be excused when it is attributable to abandonment by his attorney. In such a
case, Coleman’s rationale for attributing the attorney’s acts and omissions to the client
breaks down; for once the attorney has ceased acting as the client’s agent, ‘well-settled prin-
ciples of agency law,’ no longer support charging the client with his lawyer’s mistakes.”
(quoting Coleman, 501 U.S. at 754)). 195
130 S. Ct. 2011 (2010). 196
Id. at 2034. The actual sentence imposed on Graham was life in prison, but because
Florida has no parole, there was no possibility that Graham would be released. Id. at 2020.
The trial court’s sentence was imposed in spite of the recommendation of the Florida De-
partment in corrections that Graham could be sentenced to a prison term of four years. Id. at
2019. The prosecutor had sought a sentence of thirty years. Id.
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without parole could be imposed on a juvenile for a homicide crime.
The Supreme Court addressed this issue in Miller v. Alabama, 197
which was a consolidated appeal of two cases involving juveniles
who had been sentenced to life without parole for homicide. 198
In the
first case, fourteen-year-old Jackson had received a mandatory sen-
tence of life without parole when he was convicted of felony murder
and aggravated robbery. 199
In the second case, fourteen-year-old Mil-
ler received a mandatory sentence of life without parole after he was
convicted of a murder which had taken place during the course of ar-
son. 200
The sentences at issue for both Jackson and Miller were man-
datory, meaning that once the juvenile was found guilty of the crime,
the sentence had to be imposed—the judge could not use age as a fac-
tor to mitigate the sentence. 201
In each case, the state courts had de-
termined that the sentences were not unconstitutional. 202
The Su-
preme Court, in a 5-4 opinion written by Justice Kagan, held that a
mandatory sentence of life without parole is unconstitutional when
imposed on a juvenile, even when the juvenile has been convicted of
a homicide crime. 203
The Court first turned to scientific evidence that indicated that
the minds of juveniles are fundamentally different from the minds of
adults. 204
The Court pointed out five distinctions that it found partic-
ularly relevant on the issue of culpability: (1) juveniles have an unde-
veloped sense of responsibility; (2) juveniles are more subject to peer
influence; (3) juveniles act impulsively and engage in reckless con-
duct; (4) juvenile personalities are less fixed than adults; and (5) ju-
veniles are less likely to be irretrievably evil. 205
The sentencing judge
is not free to consider any of these factors within the confines of a
197 132 S. Ct. 2455 (2012).
198 Id. at 2460.
199 Id. at 2461.
200 Id. at 2462-63.
201 Id.
202 Miller, 132 S. Ct. at 2461 (noting that the Arkansas Supreme Court upheld defend-
ant’s mandatory sentence of life without parole since “Roper and Graham were ‘narrowly
tailored’ to their contexts.”); id. at 2463 (“The Alabama Court of Criminal Appeals affirmed,
ruling that life without parole was ‘not overly harsh when compared to the crime’ and that
the mandatory nature of the sentencing scheme was permissible under the Eighth Amend-
ment.”). 203
Id. at 2460. 204
Id. at 2464. 205
Id.
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mandatory sentencing scheme. 206
Next, the Court questioned which, if any, penological justifi-
cations for punishment (retribution, deterrence, incapacitation, and
rehabilitation) could be served by the imposition of a mandatory sen-
tence of life without parole for a juvenile. 207
The Court concluded
that none of the penological justifications were met by such a sen-
tence because of the differences between juvenile and adult minds. 208
Retribution was not served because juveniles are less culpable than
adults. 209
Deterrence was not served because juveniles are impulsive
and not likely to calculate and weigh the potential punishment associ-
ated with their actions before acting. 210
Incapacitation was not served
because it cannot be concluded that a juvenile who commits a crime
will forever remain a risk and danger to society. 211
Rehabilitation can
never be one of the goals served by a sentence of life without parole
since there is no hope that a rehabilitated defendant will ever be able
to rejoin society. 212
Therefore, the majority concluded that based on the differ-
ences between adult and juvenile minds, as well as the lack of any
penological justification for the punishment, the mandatory sentence
of life without parole as applied to juvenile offenders is unconstitu-
tional. 213
Justices Breyer and Sotomayor wrote separately to express
their concern as to the appropriateness of any life without parole sen-
tence, even when discretionary, applied to a juvenile who is convict-
ed of a non-intentional homicide. 214
Breyer and Sotomayor opined
that defendant Jackson had the same “twice diminished moral culpa-
bility” which formed the basis for the Court’s holding in Graham,
because Jackson had been convicted of felony murder, a crime in
which he neither “kill[ed] nor intend[ed] to kill the victim.” 215
The
notion of “twice diminished moral culpability” is based on an under-
standing that “a juvenile offender who did not kill or intend to kill” is
less culpable than an adult murderer by virtue of two significant fac-
206 Miller, 132 S. Ct. at 2466.
207 Id. at 2465.
208 Id.
209 Id.
210 Id.
211 Miller, 132 S. Ct. at 2465.
212 Id.
213 Id. at 2469.
214 Id. at 2475 (Breyer, J., concurring).
215 Id.
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tors: (1) the age of the offender; and (2) the “nature of the crime,” in-
cluding the lack of murderous intent. 216
As to the first factor, the age
of the offender, the Graham court quoted Roper v. Simmons: 217
“From a moral standpoint it would be misguided to equate the fail-
ings of a minor with those of an adult, for a greater possibility exists
that a minor’s character deficiencies will be reformed.” 218
As to the
second factor, the type of crime, the Court concluded that “defend-
ants who do not kill, intend to kill, or foresee that life will be taken
are categorically less deserving of the most serious form of punish-
ment than are murderers.” 219
Breyer and Sotomayor applied this con-
cept to Jackson’s felony murder conviction, and determined that “this
type of ‘transferred intent’ was not sufficient to satisfy the intent to
murder that could subject a juvenile to a sentence of life without pa-
role.” 220
Justices Roberts, Scalia, Thomas and Alito authored the first
dissent, which maintained that the Court has acted as a legislature by
using the Eighth Amendment as a justification to ban punishment that
is not unusual. 221
Indeed, the Court in two crucially important cases
in 2003 had illustrated the historic unwillingness of the Court to in-
terfere with the rights of individual states to determine what ought to
be the appropriate sentences for crimes. 222
These four dissenting Jus-
tices in Miller believe that questions of “science and policy” may in-
dicate that juveniles should not receive such a harsh sentence; how-
ever they do not believe the punishment in question to be cruel or
unusual, and therefore would hold that it is not within the power of
the judiciary to ban such punishments. 223
Justices Thomas and Scalia
authored a separate dissent, stating that the majority’s opinion is
founded in morality and policy, rather than constitutionality. 224
Fi-
216 Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (discussing Graham v. Florida,
130 S. Ct. 2027 (2010)). 217
543 U.S. 551 (2005). 218
Graham, 130 S. Ct. at 2026-27 (quoting Roper, 543 U.S. at 570 (alteration in origi-
nal)). 219
Id. at 2027. 220
Miller, 132 S. Ct. at 2476 (Breyer, J., concurring). 221
Id. at 2477 (Roberts, J., dissenting) (“Determining the appropriate sentence for a
teenager convicted of murder presents grave and challenging questions of morality and so-
cial policy. Our role, however, is to apply the law, not to answer such questions.”). 222
See Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11
(2003). 223
Miller, 132 S. Ct. at 2482 (Roberts, J., dissenting). 224
Id. at 2486-87 (Thomas, J., dissenting).
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nally, Alito and Scalia authored a third dissent, which similarly notes
that the Court has overstepped its authority by improperly infringing
upon the prerogatives of the legislature. 225
The Miller decision is line with a recent string of cases ex-
panding the breadth of the definition of cruel and unusual punishment
and thereby limiting the scope of harsh sentences. 226
The Court has
taken the rare step of overturning its earlier decisions where it had
held that it was not cruel and unusual punishment to execute those
who were suffering from mental retardation 227
or who were juveniles
at the time the murder had been committed. 228
In 2009, the Court in
Kennedy v. Louisiana 229
held that it did constitute cruel and unusual
punishment to impose a death sentence for the crime of rape of a
child. 230
The Miller holding also is consistent with the Court’s deci-
sion in Woodson v. North Carolina, 231
which had questioned the ap-
propriateness of mandatory sentencing because of the need to engage
in individualized sentencing that is based on the offender as well as
the offense. 232
The Miller opinion was a huge victory for the 2,000
juveniles who are facing charges for crimes that carry mandatory sen-
tences of life without parole. 233
225 Id. at 2487 (Alito, J., dissenting).
226 See, e.g., Graham, 130 S. Ct. at 2034 (holding that a sentence of life without parol
to a juvenile for a non-homicide crime was cruel and unusual punishment); Roper, 543 U.S.
at 578 (holding that imposition of the death penalty on juvenile offenders is unconstitution-
al); Atkins v. Virginia, 536 U.S. 304, 320 (2002) (holding that imposition of the death sen-
tence on a mentally retarded individual was cruel and unusual punishment). 227
Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins, 536 U.S. 304. 228
Stanford v. Kentucky, 492 U.S. 361 (1989), abrogated by Roper, 543 U.S. at 578.
The prior year, the Court in Thompson v. Oklahoma had overturned a death sentence for a
fifteen year old, but had not ruled on the validity of the death penalty for sixteen and seven-
teen year olds. 487 U.S. 815, 838 (1988). In his concurring opinion in Graham, Justice Ste-
vens wrote that, “Society changes. Knowledge accumulates. We learn, sometimes, from our
mistakes.” 130 C. Ct. at 2036 (Stevens, J., concurring). 229
554 U.S. 407 (2008). 230
Id. at 447. The Court emphasized that for crimes against individuals, as distinct
from crimes punishment treason or terrorism, the death penalty will be permissible only for
the crime of murder. Id. at 437. The Court had previously held the death penalty for the
crime of rape in general was unconstitutional because it was disproportionate and excessive.
Id. at 437-38 (citing Coker v. Georgia, 433 U.S. 584 (1977)). 231
428 U.S. 280 (1976). 232
Id. at 304 (prohibiting mandatory death penalty sentence because of the need to en-
gage in individualized sentencing). 233
Miller, 132 S. Ct. at 2477 (Roberts, J., dissenting).
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V. CONCLUSION
The quartet of concerns that the Court recently addressed can
have a significant impact on the administration of criminal justice.
The expansion of Sixth Amendment right to counsel to cover most
situations that arise in plea bargaining is most notable. Some Circuit
Courts of Appeal had previously recognized that when a lawyer fails
to convey a plea offer to a defendant and the client is prejudiced as a
result, that there has not been the effective assistance of counsel. It
was not until Missouri v. Frye, 234
however, that the Supreme Court
acknowledged that the Sixth Amendment is violated in such a cir-
cumstance. Whereas it might be clear that an individual with court-
appointed counsel had the constitutional right to expect that counsel
would provide correct information regarding the elements of the
crime with which is charged and a reasonable assessment of the like-
lihood of conviction were there to be a trial, it was not until Lafler v.
Cooper 235
that the Court acknowledged such to be the case.
The Court also considered the appropriate remedy for a de-
fendant who had been sentenced to death but whose pro bono counsel
had scandalously abandoned him. Historically, the negligence of an
attorney who was providing representation during post conviction
proceeding and who failed to comply with the requisite timeframe for
filing an appeal with the court, would be attributable to the defendant
whatever the consequences. The Eleventh Circuit in the Maples v.
Thomas matter had determined that the deficiency in counsel’s per-
formance during post-conviction proceedings did not constitute cause
to excuse the procedural default that had occurred, because the Sixth
Amendment right to counsel does not extend to the post-conviction
phase. 236
The Supreme Court, however, concluded that in this in-
stance, the white-glove and generally highly regarded corporate law
firm of Sullivan & Cromwell had in fact abandoned its client, and,
therefore, the Court found cause to excuse the procedural default.
The Court’s expansion of the concept of cruel and unusual
punishment to death penalty cases has been rather extraordinary in
recent years. Whereas the Court had held in 2005 that the death pen-
alty for those under eighteen years of age at the time they committed
234 See supra notes 44-84 and accompanying text.
235 See supra notes 85-123 and accompanying text.
236 See supra notes 140-194 and accompanying text.
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the crime was unconstitutional, 237
it had left open the issue of whether
a sentence of life without parole for a juvenile convicted of murder
would be constitutional. The Court had, in 2010, concluded that the
Eight Amendment was violated when a juvenile was sentenced to life
without parole for a non-homicide offense. 238
But it was not until
2012 that the Court determined that even were the crime to have been
one of murder, it is cruel and unusual punishment to sentence a juve-
nile to a term of life with no possibility of parole. 239
237 Roper, 543 U.S.at 578.
238 Graham, 130 S. Ct. at 2034.
239 Miller, 132 S. Ct. at 2460. The Miller decision is the third major Court ruling in
three years to have declared that juveniles need to be treated differently in our criminal jus-
tice system than adults. In J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), the Court held
that a juvenile’s age must be taken into consideration when determining whether a reasona-
ble person would have believed he was in custody for Miranda purposes. Id. at 2408.
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