Private: Supreme Court Sets Critical New Precedents on Right to Counsel

By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the ACS Issue Brief previewing several several of this term's Supreme Court cases, “The ‘Right-to-Counsel Term.’"

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. 

Martinez v. Ryan

As a fundamental rule in post-conviction review of state criminal convictions, a federal court cannot consider claims that were denied in state court based on an established state procedural rule—a doctrine known as procedural default. The only way for the federal court to consider a claim that has been procedurally defaulted is to find that “cause” existed to excuse the default and “prejudice” resulted.  Based on the Supreme Court’s decision in Coleman v. Thompson, attorney errors during collateral proceedings do not constitute “cause” to excuse procedural default, since no constitutional right to counsel on collateral appeal exists. 

In Martinez’s case, the first time he was permitted under Arizona law to raise an ineffective-assistance-of-trial counsel (IATC) claim was on collateral appeal; Arizona prohibits IATC claims from being raised on direct appeal. However, without Martinez’s consent, the attorney appointed to represent him on collateral appeal waived his IATC claim, so when he raised it in a successive state petition, it was denied for not having been raised in the initial appeal. And when he subsequently raised it in a federal habeas petition, it was denied based on the doctrine of procedural default. 

Martinez argued, however, that his post-conviction counsel’s ineffectiveness should excuse the default and allow a federal court to hear the IATC claim.  He argued that because his collateral appeal was the first opportunity he had under state law to raise the IATC claim, it was more like a direct appeal — in which a defendant is entitled the right to counsel — than a collateral proceeding.   

The Court’s ruling was surprising in that it avoided the question presented in the case: whether Martinez had a constitutional right to counsel on collateral appeal when he had been prevented from raising an IATC claim on direct appeal. The Court instead decided the case on equitable grounds, not reaching the constitutional right to counsel question. The Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”  So, if petitioner were either denied counsel completely during these initial-review collateral proceedings or if counsel were ineffective, as in Martinez’s case, any procedural default should be excused by the federal court. 

The Court did limit its holding to ineffective-assistance-of-trial counsel claims, noting that “the right to effective assistance of counsel at trial is a bedrock principle in our justice system.”  Whether the ruling might be expanded in the future to other constitutional claims remains to be seen; Justice Scalia in dissent assumes that it will soon be expanded to other constitutional claims better suited for collateral review, like Brady violations. 

Additionally, the Court held that to overcome the default and establish cause the IATC claim must be a “substantial” claim, meaning it has “some merit.” If the claim lacks merit, it doesn’t matter that counsel was ineffective or not appointed at all.

Scalia notes in his dissenting opinion, joined by Justice Thomas, that the Court’s ruling based on equitable grounds produces “precisely the same” result than if the holding had been based on constitutional grounds. But that’s not exactly true. Without finding a constitutional right to counsel, states can still refuse to appoint counsel in state initial-review collateral appeals, and simply allow the IATC claim to be adjudicated by the federal court. Similarly, if there were a constitutional right to counsel, the failure to appoint counsel would constitute an independent claim in and of itself. Instead, the failure now only functions as a gateway to consider underlying and meritorious IATC claims.

Further, states can presumably avoid this ruling by changing their procedural rules to allow IATC claims to be raised on direct appeal. While they would have the benefit of the assistance of counsel on direct appeal, requiring defendants to raise such claims on direct appeal is not preferable. IATC claims usually require the presentation of evidence beyond the trial record, which is not permitted at direct appeal.  Hence, collateral review is a better forum for adjudicating IATC. A preferable result based on Martinez would be for states to hold off considering IATC claims until collateral appeal, while ensuring that the counsel appointed to represent petitioners at this stage are competent and well-funded. 

Lafler v. Cooper and Missouri v. Frye

The day after Martinez was handed down, the Court issued opinions in Lafler v. Cooper and Missouri v. Frye, both of which required the Court to decide the scope of the right to counsel during plea negotiations. In both Cooper and Frye, the defendants had received harsher sentences after foregoing favorable plea bargains based on their respective attorneys’ poor performance. Cooper declined a favorable plea bargain, because his attorney inaccurately advised him that he would not be convicted if he went to trial. Specifically, counsel had erroneously advised him that because he had shot at his victim below the waist, he could not be convicted of attempted murder. Cooper thus rejected a plea offer for a 51- to 85-month sentence, went to trial, where he was found guilty of attempted murder and several other charges, and sentenced to the mandatory minimum of 185 to 360 months in prison. He received a longer sentence after trial than if he had accepted the plea bargain.

Frye had been charged with a felony of driving with a revoked license. His attorney never notified him that the prosecutor had offered a favorable plea bargain, allowing him to plead guilty to a misdemeanor and serve 90 days in prison, or to plead guilty to a felony and serve a 10-day “shock” sentence followed by probation. Because the offer was never communicated to Frye, it lapsed, Frye pled guilty without an underlying plea bargain, and he was sentenced to three years in prison for driving with a revoked license.  

Because both defendants were convicted and sentenced pursuant to constitutionally adequate procedures, the question presented to the court in both cases was whether counsel’s errors during plea negotiations were grounds for relief, and if so, what sort of remedy was appropriate. 

In Frye, the court held that counsel had a duty to notify the defendant of a plea offer, and that failure to do so constituted deficient performance for purposes of Strickland v. Washington. The Court then turned to Strickland’s prejudice prong. To demonstrate prejudice in this case, Frye had to show that he would have accepted the plea offer, which he had done. However, he would also need to show that the prosecutor would not have withdrawn the offer and the court would have accepted it. Frye had not yet made such a showing, particularly in light of the fact that he had been arrested for driving with a revoked license a second time prior to the entry of his guilty plea. The Court remanded for a decision on this point. Because prejudice was not established in this case, the Court did not reach the issue of remedy.

In Cooper, the parties had already stipulated that counsel’s erroneous advice constituted deficient performance under Strickland, but disagreed whether prejudice resulted. The Court held that to show prejudice in the case, Cooper needed to demonstrate that “but for the ineffective advice of counsel, there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Cooper’s case was unique in that Cooper had subsequently received a fair trial, not just pled guilty like Frye. But, the court acknowledged, “far from curing the error, the trial caused the injury from the error” in the form of a lengthier sentence.  Since Cooper had established prejudice under Strickland, he had established a violation of his constitutional right to counsel, and the Court turned to the issue of a remedy.  The Court held that depending on the circumstances, the appropriate remedy may be one of two things: for the court to exercise its discretion and determine if a lesser sentence is warranted; or to require the prosecution to reoffer the plea bargain.

The decisions in Frye and Cooper recognize that our criminal justice system has become a system of plea bargains, not of trials. Approximately 95 percent of criminal cases in both state and federal courts are resolved through plea bargains. In fact, the lengthiness of sentences available for many crimes often exists to give prosecutors an upper hand during plea negotiations, not necessarily because the legislature believes the lengthy sentence to be appropriate for the crime committed. As the Court explained in Frye, “[i]n today’s criminal justice system, . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

By the same token, the Court did not recognize a right to a plea bargain akin to the right to a fair trial, and in fact reiterated that no such right existed. However, plea negotiations are analogous to direct appeals when it comes to the right to counsel. Like a plea bargain, defendants have no constitutional right to a direct appeal. Yet, if a state decides to provide a direct appeal to defendants, then defendants have the right to the effective assistance of counsel during that proceeding. In effect, the direct appeal becomes one of the critical stages in a state’s trial process to which the Sixth Amendment attaches.  Similarly, a prosecutor is never under an obligation to offer a defendant a plea bargain. But once the prosecutor does make such an offer, the Sixth Amendment attaches and defendant is entitled to the effective assistance of counsel during that stage. 

The decisions in Frye and Cooper were welcome ones. Effective assistance of counsel is absolutely fundamental to the protection of defendants’ rights throughout the criminal process. And in our current system, where plea bargaining has almost completely displaced trial, the right to counsel during plea negotiations is just as important as at trial.

Access to Justice, Constitutional Interpretation, Criminal Justice, Right to Counsel, Supreme Court