by Nicole Flatow
The U.S. Supreme Court’s pair of March decisions establishing the right to the effective assistance of counsel during plea negotiations was considered by many the most significant criminal process precedent since Gideon v. Wainright. But the lawyer whose argument prevailed in one of those cases was not feeling positive vibes from the Justices during her oral argument – her first ever before the high court.
In an American Constitution Society video webinar on her experience litigating Lafler v. Cooper, state appellate defender Valerie Newman said it was the justices’ hostility that surprised her the most.
“It was not a pleasant experience,” she said. “… I tell people the experience felt to me like there were nine lions, even though Justice Thomas never talked, and I was the piece of meat that was thrown into the ring and they were just all scratching at me to see who could get the biggest piece.”
Newman held her ground and stood by the argument she had been making since the beginning: that “the Sixth Amendment applies to all stages of the criminal process, and plea bargaining is a stage of the criminal process. If the defendant receives deficient advice that affects the defendant’s decisions down the line, then the defendant is entitled to relief.”
In this case, because her client had been advised to go to trial based on misinformation from his lawyer that he could not be convicted, Newman had to argue that the trial itself caused the harm – a notion that incited particular hostility from Justice Scalia.
“I thought Justice Scalia, if he could, would have reached over the bench and strangled me,” Newman said. “That’s how visibly distraught he was at my argument. And even the justices I thought would be on my side, like Justice Breyer, Justice Breyer yelled at me at one point.”
This week the Supreme Court issued three critically important decisions implicating the constitutional right to counsel. Martinez v. Ryan affects the right to counsel during the state collateral appeal process, while Lafler v. Cooper and Missouri v. Frye will impact the right to counsel long before appeal, before trial even, during plea negotiations. 
Today, the Supreme Court is hearing argument in two cases related to the right to counsel, the first two in a collection of cases this fall that has earned the October 2011 Term the nickname “Right-to-Counsel Term.” Three other cases are slated for argument later this fall. We examine these cases in greater depth in our new