This article first appeared in the St. Louis Beacon, Nov 1, 2011 - Even some of the most conservative justices on the U.S. Supreme Court were ready to admit it may have been unfair that St. Louisan Galin Frye's public defender failed to tell him about a favorable plea bargain. But even the most liberal justices were unable to figure out whether the unfairness violated Frye's constitutional right to effective assistance of counsel.
Frye was arrested in Boone County in August 2007 for driving a car without a license. It was his fourth violation so he was charged with a felony and assigned a public defender, Michael Coles. The prosecutor offered a plea bargain with two options: Frye could either plead guilty to the felony with the prosecutor recommending three years probation and 10 days of shock imprisonment in the Boone County jail, or the charge could be reduced to a misdemeanor with Frye serving 90 days in the Boone County jail.
By this time, Frye, who formerly attended Forest Park Community College, was living in St. Louis. Coles did not tell him about the prosecutor's offer, and it expired. Before the end of 2007, Frye was arrested again for driving without a license. The following March, Frye -- never having been told about the plea bargain -- pleaded guilty in court. The prosecutor recommended the three years probation and 10 days of shock imprisonment, but the judge sentenced him to three years in prison.
Frye appealed claiming that his Sixth Amendment right to effective assistance of counsel had been denied because he hadn't known about the lenient plea offer. The Missouri Court of Appeals for the Western District agreed. Attorney General Chris Koster, who appealed to the U.S. Supreme Court, appeared there Monday to argue the case, Missouri vs. Frye, for the state.
The issue has practical importance because about 90 percent of criminal cases result in plea bargains rather than trials.
To prove ineffective assistance of counsel, Frye would have to prove not only that his lawyer's performance was below reasonable standards, but also that he was prejudiced in a way that the case would have turned out differently had the lawyer acted competently.
Koster argued that there is no Sixth Amendment right to a particular plea bargain. After all, a prosecutor can withdraw a plea bargain at any time. He also argued that Frye had not been prejudiced. The judge certainly would not have accepted the plea after he was arrested the fifth time, he said. And if Frye had decided to go to trial, he would have been convicted.
Justice Samuel Alito, one of the court's more conservative justices, agreed, saying the trial would have been a "slam dunk." Alito acknowledged that it may have been unfair that Frye did not learn about the plea. But it wouldn't have helped him in any event.
"This seems to be -- to me a case about nothing Am I wrong? Am I missing something?" asked Alito.
Frye's lawyer, Emmett D. Queener, assistant public defender from Columbia, Mo., insisted that "fundamental fairness and reliability of criminal process requires that an attorney provide his client information regarding matters in this case."
But Justice Antonin Scalia wanted to know whether Queener would claim ineffective assistance of counsel in a situation where every reasonable lawyer would tell a defendant to snap up a plea bargain, but the defendant's own lawyer told him to turn it down. Queener said bad advice would be ineffective assistance of counsel in the same way as was Cole's failure to tell Frye about the offer.
Scalia replied. "Then we are in the soup."
And more liberal Justice Stephen Breyer seemed to partially agree. "It would be too easy ... to find that the lawyer after the defendant is convicted did a bad job during the plea negotiation, in which case everybody will get two or three bites at the apple."
Scalia's question about bad legal advice was more than a hypothetical because the court also heard on Monday a related case from Michigan involving those facts. In that case Anthony Cooper was charged with assault with intent to murder for shooting a women below the waist. Prosecutors offered to reduce the charge to about four to seven years, but Cooper's lawyer advised him to reject the offer, saying, incorrectly, that he could not be convicted of attempted murder for wounds below the waist. Cooper was convicted and sentenced to three times as much jail time as he would have served under the plea offer.
The justices seemed somewhat more open to Frye's claim than Cooper's. Justice Anthony M. Kennedy and the more liberal justices asked some sympathetic questions. But the justices were stumped as to what kind of remedy Frye could expect if he won. The court couldn't very well force the prosecutor, who had done nothing wrong, to reinstate the expired plea bargain. And even if it were offered, the judge would certainly reject it. The court could give Frye the chance for a new trial, but he doesn't want a new trial knowing he would lose.
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William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.