Pleas Pleas Tell Me Now: How To Assure That Your Client’s Second Thoughts Don’t Wind Up Being A Laffler/Frye Claim Against You

Since I spend so many of my days arguing that defense attorneys are ineffective and then asking them not to take it personally, I thought I would try to start sharing a few cases where IAC was found with the goal of helping my colleagues take note of pitfalls they might encounter (and avoid) in representing clients in trials and on appeal. Ultimately, perhaps we can call this the “There But For The Grace Of God Go I Blog,” but for now, let’s take a look at United States v. Kearn, 90 F.4th 1301 (10th Cir. Jan. 23, 2024).

Kearn involves a Defendant in a federal prosecution who was facing an “upper exposure of 30 years’ imprisonment on the charges” against him, yet rejected a guaranteed 10-year sentence under Fed. R. Crim. P. 11(c)(1)(C) in order to take his chances in a trial. He filed a 2255 alleging that his attorney was ineffective for failing to advise him properly at the plea stage. I refer to these as Lafler/Frye claims, so called because of the back-to-back decisions by the Supreme Court in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Together, these two cases staked out circumstances where an attorney could be found to be ineffective for encouraging their client to reject a plea and go to trial instead. I know plenty of lawyers who lose sleep over cases like these and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) because in combination they functionally tell defense attorneys that they are damned if they do advise a client to enter a plea (Padilla) and damned if they don’t as well (Laffler/Frye). Using Kearn as the backdrop, my hope is to demystify the situation a little and mark out a path to effectiveness.

First, some basics: in Lafler, the Supreme Court reaffirmed its oft-stated position (beginning, I believe, with Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)) that the right to effective assistance of counsel, “extends to the plea-bargaining process.” Thus, the minimal protections outlined in Strickland v. Washington extend to that process as well. Per Lafler, where a defendant claims that her attorney was ineffective for advising her to reject a plea offer and go to trial, she must establish the typical Strickland element of deficient performance and then prove the other element, prejudice, by showing that: 1) there is a reasonable probability that she would have accepted the plea offer, but for counsel’s deficient performance. Note for all post-conviction lawyers out there: this means your client will have to testify (or offer objective proof) that they did not want to go to trial, that they wanted to enter a plea and were willing to do so when the offer was valid; 2) 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);” 3) “that the court would have accepted its terms” and 4) “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.”

Lafler and Frye present two different scenarios where counsel could be ineffective for his client’s failure to accept a plea bargain: 1) the Frye scenario where counsel declined – or failed – to communicate a proposal, “that offered terms more lenient than the terms of the guilty plea entered later,” and 2) the Lafler scenario where counsel reports a plea offer to his client, but then gives unreasonable advice which causes the client to reject it.

The Frye scenario is easily avoided by presenting your client with every formal plea offer received by the prosecution in a timely fashion and memorializing it in writing, if not at the same time as you speak with your client, the soonest time practicable thereafter. Side note: I was speaking with a good friend from law school who was a very successful civil litigator the other day and we were discussing some of the differences between the criminal and civil litigation world. One thing that struck her is the tendency of criminal defense attorneys not to paper their conversations. A good habit to have – if you don’t do this already – is to make sure that all conversations with other attorneys, as well as any with your clients are memorialized in a follow-up letter (or email, but not text!!!) to confirm their content. It freezes the content of the conversation in time and makes denying its occurrence later, whether by opposing counsel or disgruntled former client, practically difficult. This is especially true when it comes to plea bargaining and is the reason plea offers are usually presented in writing.

Certainly, there will be times when this is not the easiest thing to do, such as when you are at a trial calendar and the prosecutor finally starts to budge on a reduced charge without a mandatory minimum, but insists that, in return for their generosity, your client has to decide what to do with the next ten years of her life by the close of business that day. Whether the plea is accepted or not, you are not required to stop everything to bang out a letter freezing that conversation in time. Do what you would normally do: talk to the client, see what they need to know and where they are with the decision, make the decision and then, whether accepted or rejected, memorialize the events in writing, likely a letter or email to the prosecutor informing them of your decision. Yes, a three paragraph email laying out what had just happened to the only other person in the world who already knows what just happened is kind of a pain in the ass, but those paragraphs will save you a lot of stress and time on the witness stand later when your client has second thoughts about their decision. Speaking of the client, you can cc that letter to your client (or cut and paste the email into a letter) and they, too, now undeniably know the sequence of events.

The Lafler scenario is less cut-and-dry. Lawyers worry less about dropping the ball on communicating a plea offer than they do a client claiming later that you gave bad advice, so it requires a bit more nuance than just a paper trail (though a paper trail of the advice you gave helps a lot in this scenario too). Let’s go back and consider the situation in Kearn. There, counsel was found to have performed deficiently, “on several fronts:” he failed to explain the benefits and burdens of a negotiated plea and he incorrectly informed his client that he would personally have to proffer the factual basis for his plea, which mattered greatly to this defendant. It’s hard to blame counsel for failing to do these things, since the Tenth Circuit noted that his entire conversation with the client about the terms of the plea lasted all of six minutes. Hardly enough time to address such a complicated matter. The Tenth Circuit found this to be particularly inadequate, given the defendant’s uncertainty as to whether he would go to trial or plead guilty.

Another interesting side note: in this case, the defense incorporated a tactic I have rarely seen in twenty-three years of handling almost exclusively post-conviction actions (which often involve alleging IAC): they called another defense attorney as an expert witness to set the standard of reasonableness. It is a pretty obvious tactic when you think about it: professional malpractice suits rarely go far without an experienced member of the profession testifying that the actions in question fell below professional standards, so it seems an effective tactic to have a fellow defense attorney spell out where the error occurred for the judge (who is probably a former prosecutor and therefore is only guessing at what reasonable defense attorneys typically do). I’ll tuck that one away for another day, I suppose.

It seems pretty easy to say that, when you are trying to assist a client to determine whether she will willingly sign away the next ten years of her life to incarceration or risk the next thirty on a trial, six minutes is not enough time to inform her of all the things she needs to know. Judges know that too, so I would strongly encourage all attorneys who get faced with a last minute, take-it-or-leave-it offer from the prosecutor on a short deadline, to tell that prosecutor and the judge, straightaway and on the record, that in order to be an effective advocate for your client, you need hours, not minutes, and see if that does not buy you at least a little extra time to get to a resolution that your client will live with, not only on that day, but in the days to come as well.

As for explaining the benefits and burdens, this is why you need a lot of time. This is the moment when you have to be completely blunt with your client: this is the evidence against you, this is the defense that we are going to present, this is how we are going to present it, these are the weaknesses to their case, these are the weaknesses in ours, this is what happens if the jury does believe our side, this is what happens if it does not. This the sentence you are facing if convicted on everything (and then each individual charge); these are the possible sentence enhancements/collateral consequences (e.g. repeat offender provisions; victim status provisions; deportation; sex offender registration, etc.). All of this can be prepared in writing ahead of the conversation and you can normally put a short memo or letter like this together very early in the proceedings, hold onto it, adjust it as needed and have it ready to hand to your client as soon as plea negotiations get serious. Once again, the benefits of a paper trail!

The Tenth Circuit also faulted counsel for not knowing his client did not have to proffer the facts of his case personally at the plea hearing and this goes to a very obvious tactical requirement for effective counsel: know the ground rules, especially when you are advising your client to take or not take a specific action. There will be plenty of situations where a client, fully informed of the procedures facing her and the penalties for being convicted, makes a decision which is objectively foolish or, at best, not wise and as most defense attorneys know, ultimately many of those clients will fault their attorney for encouraging the decision regardless of the actions you take. Tempting though it might be for all of us to parent these clients and try to guide them to what we view as the smarter decision in the plea bargaining process, the best idea normally is to be the judge as between the two of you before you have to be their advocate in court. Weigh the evidence, the benefits and burdens as well as the personal needs of the client for them (in writing!!!), but then leave the decision to them.

Proving prejudice in these cases is both easy and hard. The whole reason to bring a Laffler/Fry -type claim is that your client got a sentence after trial which was worse than her plea offer, so she’ll typically have no difficulty taking the stand to say that she preferred not to go to trial, but for that scurrilous attorney who forced her to do it. The Tenth Circuit addressed this in Kearn and advised healthy skepticism:

[t]hese types of cases inevitably require a backward-looking counterfactual assessment of what the world would have been absent ineffective assistance. Complicating this inquiry is the defendant’s after-the-fact knowledge that he would have been significantly better off if he had taken the plea bargain. In addressing this evidentiary dilemma, courts should ‘remain suspicious of bald, post hoc and unsupported statements that a defendant would have changed his plea absent counsel’s errors[.]” The ‘failure to point to any evidence in support of prejudice provides a sufficient basis, standing alone, to reject [an] ineffective-assistance claim.’ Thus, courts are required to locate from the plea bargain process ‘contemporaneous evidence to substantiate a defendant’s expressed preferences.’

I have never made winning a Laffler/Fry claim without some objective, contemporaneous evidence of the client’s intention to enter a plea. Obviously letters from the client insisting that a deal be struck are ideal, but I also pay close attention to any statements by the client on the record in pretrial proceedings as well as what the attorney is telling the client in written correspondence. In my most recent Laffler claim, the trial attorney was kind enough to recite his completely incorrect understanding of the law governing the charged crime as the client’s basis for going forward with the trial … moments before the trial and on the record. I also comb the record for written plea offers from the prosecution – or evidence that one was made – then compare that to the attorney’s actions subsequently. Was there any acknowledgement of an offer? Was there any record of the attorney communicating that offer to the client? Often you can find enough breadcrumbs to stake out what your client’s position was without the client simply saying what it was.

Laffler/Fry claims are unusual post-conviction claims because their remedy is not a new trial. Typically, relief for a prevailing Laffler/Fry claim will be a vacated sentence and an order that the prosecution re-offer the deal which was errantly rejected. I have always wondered if there is a North Carolina v. Pearce-type scenario waiting out there where the Defendant successfully gets a plea offer reinstated, only to have the prosecution argue that circumstances learned subsequently justify withdrawing or increasing the offer.

Fodder for another time, I suppose.

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