Lafler v. Cooper – Oral Argument – October 31, 2011

Media for Lafler v. Cooper

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 2) in Lafler v. Cooper
Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 10-209, Lafler v. Cooper.

Mr. Bursch.

John J. Bursch:

Thank you, Mr. Chief Justice, and may it please the Court:

There are three points that I would like to press this morning regarding deficient plea advice.

First, this Court has consistently limited the effective assistance right to ensuring the reliability of the proceedings where a defendant is adjudicated guilty and sentenced.

Mere outcome is not the Strickland prejudice standard.

Second, when asserting an ineffective assistance claim the defendant–

Elena Kagan:

Could I — can I stop you on the first?

You say mere outcome is not enough, reliability of the proceedings.

How does that fit with Kimmelman, where we said it, the right to effective assistance, does attach to suppression hearings, obviously where evidence would not make the proceedings more reliable?

John J. Bursch:

–Justice Kagan, even in Kimmelman the Court remanded back to the lower courts to determine whether there was prejudice, and the obvious implication was that if there was no prejudice on the fairness of the adjudicatory proceeding itself, there would be no Sixth Amendment violation.

The second point that I wanted to press this morning was that when asserting an ineffective assistance claim, a defendant must show deprivation of a substantive or procedural right, and this Court has already held that a defendant has no right to a plea bargain.

Third, every possible remedy for deficient plea advice creates intractable problems demonstrating the–

Sonia Sotomayor:

Counsel, isn’t there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?

There is no right to demand one or to keep it, but isn’t there a right to make that kind of critical decision?

John J. Bursch:

–Justice Sotomayor, the — the not guilty plea is an assertion of the defendant’s constitutional rights.

It’s invoking the right to trial that the Sixth Amendment contemplates.

And so this situation is really more like Fretwell.

It’s not a decision that you have, for example, whether to have a jury or not to have a jury, or whether to have this attorney appointed for your counsel or not, because in each of those cases you have an underlying substantive or procedural constitutional right; and have you no right to a plea.

And so this fork in the road is really an illusory one, because you have no right to choose the other side of the fork.

Anthony M. Kennedy:

Suppose this were a death — a death case, and roughly the — the same facts, failure — failure to communicate.

And that leads me just to one other question that is based on your opening remarks.

We can think about adjudication as having a constitutional violation, injury, and remedy.

Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?

John J. Bursch:

I’m saying–

Anthony M. Kennedy:

So if you could do all of that, including the death penalty.

I–

John J. Bursch:

–Yes, I’m saying that there is no violation, because in order to prove a Sixth Amendment violation you have to demonstrate unreliability of the adjudicatory process.

I am also saying that there is no reasonable remedy, and I will talk about that in a minute.

With respect to the death penalty in particular, I would refer this Court right back to the Fretwell decision, because there, too, defendant and his counsel had an opportunity to raise a Collins objection that would have changed the sentence to avoid the death penalty in that case.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John J. Bursch:

Collins obviously was before habeas process, and this Court held that the defendant could not use the vehicle of an ineffective assistance claim to regain that lost opportunity because he had no constitutional right in it.

And so really the remedy — I’m sorry.

The severity of the sentence doesn’t enter the analysis once you have established that there has been no violation.

Ruth Bader Ginsburg:

When you say no violation, you don’t mean that there was no ineffective assistance of counsel?

I thought that was conceded, that there was ineffective assistance.

John J. Bursch:

That’s correct, Justice Ginsburg.

We have conceded for purposes of argument that there was ineffective assistance.

But Strickland is a two-part test and, even after you get past the deficiency prong, there is still the question of whether this casts some doubt on the reliability of the proceedings.

Elena Kagan:

Well, I thought that the second part of the test asked about harm.

And here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage.

So why doesn’t that just meet the requirements of Strickland, both deficiency and prejudice?

John J. Bursch:

Well, that’s actually the best argument that the Respondent has in this case.

And the reason–

Elena Kagan:

Sounds like a good argument.

John J. Bursch:

–Well, the reason why it’s wrong is because this Court has been very careful to define what that harm is.

Specifically, the word was “outcome” in Cronic and Strickland.

Elena Kagan:

And outcome — there is a different outcome here.

He is sitting in prison three times as long.

That’s a different outcome.

John J. Bursch:

Yes, but the Court went on to define outcome to mean reliability of the adjudicatory process.

Specifically, the language was whether absent the deficiency the defendant — I’m sorry — absent the deficiency, the factfinder would have had a reasonable doubt respecting guilt.

And what we have here is a situation where everyone acknowledges–

Elena Kagan:

Well, take the sentencing cases.

The sentencing cases, the determination of guilt is over and the question is, is this person sitting in jail for one day longer because his counsel was ineffective?

And if he is we would find prejudice there.

So why isn’t the same thing true here?

John J. Bursch:

–Well, I don’t believe it’s quite that simple.

If there was some legal error, an error to which he had a constitutional right, then certainly what you said is exactly true.

But if you are talking about more or less days because of, for example, a judge thinking that the difference between crack and cocaine sentences was not appropriate or other things that are really up to the discretion of the trial court judge, Strickland says absolutely those things are not Sixth Amendment violations.

Elena Kagan:

Well, I guess I don’t understand that answer, because that answer seems to suggest that the assistance being provided was not ineffective.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Elena Kagan:

But here, as Justice Ginsburg notes, you’ve conceded that the assistance is ineffective.

That assistance has led to a much, much, much longer sentence.

As opposed to some of the sentencing cases suggest that 24 hours is enough, this is 10 years or something; and that should be the end of the game, no?

John J. Bursch:

Well, let’s try another sentencing hypothetical, where it’s clear that there was deficient performance.

Say that there is a local trial court judge and everyone knows that he has a certain predilection that if you like the local sports team he is going to give you a break.

If the attorney comes in and he does not press the argument that this convicted defendant likes the local sports team, he gets a higher sentence.

That’s still not a Sixth Amendment violation.

Really, once you shift sentencing, the question is were you legally entitled to the result.

And simply because he failed to appeal to the right discretionary tendencies of the trial court doesn’t really make a difference.

Here we are talking, obviously, about the guilt phase and it’s much easier here because it says clearly in Strickland and Cronic and Kimmelman and many, many other cases that that outcome difference, the harm difference, has to be reliability of the process itself.

It’s a process–

Antonin Scalia:

You acknowledge, though, that it’s ineffective assistance of counsel if you’re — well, no, I guess you haven’t acknowledged.

Let me ask you: Have you provided ineffective assistance of counsel if you are a lousy bargainer?

You are just no good at the — you know; I don’t know — the game of bargaining.

And so you do a bad job in bargaining down the sentence, I mean a notoriously bad job.

Is that ineffective assistance of counsel?

John J. Bursch:

–Under the Court’s first prong of Strickland, you would have to look at whatever the standards of professional practice were and, depending how lousy the bargainer was, it could or could not be deficient.

But the important thing is if it didn’t have any effect on the subsequent trial and sentencing, then it would not be a Sixth Amendment violation.

Antonin Scalia:

Well, I don’t even agree with the first part.

I don’t think our legal process is — is a bargaining game.

It shouldn’t be.

John J. Bursch:

Well, we could agree with that.

Bargaining is not what this is about, and that’s why this Court has held in Weatherford and other cases that there is no right to the plea bargain itself.

And that’s really the second–

Sonia Sotomayor:

You can — you can agree with that when 95 percent of the criminal cases are disposed of by way of bargaining?

John J. Bursch:

–Because in the 95 percent of cases that are disposed of that way, this Court has already held in Padilla and Hill that there is a constitutional right to have effective counsel when you accepting that plea.

And the difference is when you are accepting a plea you’re being convicted.

That is the conviction.

And this Court frequently establishes different tests when you are waiving a right, for example the right to go to trial, versus invoking a right, going to trial.

Sonia Sotomayor:

How can you talk about the reliability of a process or its fairness when you have an attorney who has fundamentally misgauged the law?

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Sonia Sotomayor:

How can a trial be fair when the attorney is going into a trial thinking his client can’t be convicted because the shots fired hit below the waist?

So how can that kind of trial ever be fair?

John J. Bursch:

Because there’s no evidence here, not even a contention, that his belief had any impact whatsoever on the fairness of the trial proceeding.

And this Court has drawn a bright-line rule at trial.

If you look at the preliminary hearing, if there is attorney error there, deficiency–

Anthony M. Kennedy:

–Well, but you skipped over a step.

I think we do assume that the deficient advice led to the determination to plead not guilty.

John J. Bursch:

–Right again, but that fork in the road is not one to which he has a constitutional right.

Anthony M. Kennedy:

Well, but that’s the question — that’s the question we’re confronting.

So I think–

John J. Bursch:

Well, I–

Anthony M. Kennedy:

–your answer was a little too facile on that point.

We have to assume there is ineffective assistance of counsel in advising the client the nature of the charge so that the client can make up his mind whether to plead guilty or not guilty.

We have to assume that in this case, correct?

John J. Bursch:

–Correct, we are assuming that.

But what I would submit respectfully is that the plea stage isn’t any different than a preliminary hearing or a line-up or a suppression hearing, where if there was some deficient attorney conduct this Court would still then look to see whether it had an adverse impact on the adjudication of guilt.

Ruth Bader Ginsburg:

Suppose the defective advice causes the defendant to enter a plea that he would not have entered if he had been properly advised.

Can he get relief?

John J. Bursch:

Absolutely.

Under Hill and Padilla, this Court has said when you give up your right to trial that’s a very different situation and that there is a remedy for that.

Ruth Bader Ginsburg:

So explain why defective advice causing a plea, that qualifies, but defective advice causing defendant to turn down a plea–

John J. Bursch:

It’s just–

Ruth Bader Ginsburg:

–does not?

John J. Bursch:

–It’s just like the difference between deciding to proceed with counsel, in which case there is no barrier to entry, or deciding to proceed without counsel, giving up the constitutional–

Antonin Scalia:

No, the difference — that’s not the difference at all.

It seems to me the difference is when you plead guilty you deprive yourself of the 24-karat test of fairness, which is trial by jury before nine people who have to find you guilty beyond a reasonable doubt.

When you plead guilty, you give up that.

When you don’t plead guilty you get what is the best thing in our legal system.

You can’t do any better than that.

John J. Bursch:

–Justice Scalia, you said it much more artfully, but that’s exactly the point I was trying to make with Justice Ginsburg, that when you invoke your constitutional rights, your right to have an attorney, to go to a trial, to have a jury, we don’t set up barriers to entry.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John J. Bursch:

It’s only when you give up those rights.

Elena Kagan:

I take it, then, Mr. Bursch, you would have the same answer if the State had never provided counsel at all.

So long as — if the plea negotiations were all done between the prosecutor and the individual defendant, and the State refused to provide the individual defendant with counsel, but so long as the person in the end decided, oh, I don’t like this plea, I’ll go to trial, then it’s all fine and dandy under the Sixth Amendment?

John J. Bursch:

That would be our position, because that’s consistent with this Court’s holding in Coleman and Wade and Kimmelman.

Anthony M. Kennedy:

And that would also be your position in a capital case?

John J. Bursch:

Yes.

Under Fretwell this Court held definitively that so long as the reliability of the adjudicatory process and sentence were intact, that the deficient advice didn’t affect it, that the severity of the punishment was not legally relevant.

Antonin Scalia:

So your position is you are entitled to effective assistance of counsel before you plead guilty, but you are not entitled to effective assistance of counsel in evaluating plea offers?

John J. Bursch:

I would say it slightly different–

Antonin Scalia:

All right.

John J. Bursch:

–that you are entitled to effective counsel at every critical stage; however, it is not a Sixth Amendment violation unless it casts doubt on the reliability of the adjudication of guilt.

Anthony M. Kennedy:

That gets back to my question: Is it a violation in the abstract, damnum absque injuria?

John J. Bursch:

I’m sorry.

Anthony M. Kennedy:

Damage without injury.

John J. Bursch:

No, because under the Strickland and Cronic cases there is no damage, there’s no Sixth Amendment violation, unless you can prove the prejudice.

Samuel A. Alito, Jr.:

I mean, all of this is theoretically interesting and it may be that capital cases are sui generis here.

But I thought the heart of your argument was that there just is no way to unscramble the eggs in this situation; there is no — and that was your third point, I understood it–

John J. Bursch:

Correct.

Samuel A. Alito, Jr.:

–there is no remedy that can put the parties back into the position where they would have been had the error regarding the legal issue not occurred.

John J. Bursch:

That’s exactly right.

And let’s talk about the two remedies that are most frequently bandied about in the circuit courts.

First is to order a new trial.

And to us it makes no sense to order a second trial after you have already had a first error-free trial.

In addition, you think about these habeas cases; if you are issuing a habeas writ and vacating a sentence 8 or 9 years after the fact, like you are here, essentially you are releasing the, defendant, because witnesses will die, they will move away, memories will be sparse, and so that’s the natural effect of that.

And in Cooper’s brief, he doesn’t even advocate for a second trial; he asks for specific performance.

The problem with that is there you are infringing on the prosecutor’s discretion, which is sacred, to say what his plea offer is going to be.

And circumstances have changed once a trial has taken place.

John G. Roberts, Jr.:

“Sacred” is a little strong, don’t you think?

I mean, it is a, to some extent, unfair to the prosecutor because he knows already he’s got a guilty verdict in his pocket and he has to go back.

But why is it so terribly difficult to tell the defendant he has a right to accept that offer if he wants, but then go through the normal process, which is it has to be approved by a judge and all that stuff?

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John G. Roberts, Jr.:

I don’t see what’s terribly difficult about that.

John J. Bursch:

We contend it violates the separation of powers.

But you bring up an important point because circumstances have changed in two respects.

The first is that you learn more information.

So here, for example, the prosecutor learned that not only did Mr. Cooper shoot Kali Mundy, but he did it while she was screaming and running away from him.

That’s a changed circumstance.

He might not give the same plea.

Even more so in Frye, where they learned that he was picked for another criminal violation after the plea was given, and the prosecutor testified that he would have taken the plea back when he knew that.

But the bigger changed circumstance is the trial itself, because the prosecutor has now gone through the risk of having an acquittal.

He has also put, for example, the 8-year-old sexual abuse defendant on the stand, something he tried to avoid with the plea offer.

And it truly is an egg that cannot be unscrambled.

And unless there are further questions, I will reserve of the balance of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Jay.

William M. Jay:

Mr. Chief Justice and may it please the Court:

Petitioner’s convictions and sentence are reliable because the proceedings that produced them were reliable.

And to collaterally attack his convictions or his sentence based on allegedly ineffective assistance of counsel, he has to show that the ineffective assistance of counsel prejudiced him.

As this Court’s Strickland cases have used that term, that means he has to show that a reviewing court should lack confidence in the proceeding that produced the convictions or the sentence.

Stephen G. Breyer:

Well, you — first, there is nothing about this in the Sixth Amendment, is there?

I mean, the text of the Sixth Amendment talks about criminal prosecutions requiring the assistance of counsel for defense, period.

William M. Jay:

The Sixth Amendment requires the assistance–

Stephen G. Breyer:

There is nothing in the Sixth Amendment that has these qualifications.

I haven’t seen anything in any case which was other than case specific.

That is, this issue hasn’t been decided before, not to my knowledge.

The language can be taken out of those cases, as you have very properly done.

And so there is nothing that I could find in the cases.

There is nothing in the Sixth Amendment itself.

In 95 percent of the cases, they do plead guilty.

And what’s the problem about ordering the prosecution to simply repeat the offer he gave before?

Well, I mean, I don’t really see if there — And prejudice?

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Stephen G. Breyer:

Well, if a person’s been executed, if he had gotten the — if he had gotten the plea offer, he would have pled guilty for 50 years in jail, okay?

That’s my imaginary case.

I can think of one where there’s prejudice.

He’s dead.

All right.

So what’s the answer in my imaginary case, if it’s not in the amendment, not a holding, etc?

William M. Jay:

–Well, I think that — Let me address that capital hypothetical that has come up several times.

And I think that it’s instructive, Justice Breyer, to look at this Court’s Strickland cases and look at what remedy they order when there has been ineffective assistance that shakes the reviewing court’s confidence in the proceeding that produced it.

They order a new proceeding.

They don’t order a specific sentence.

That’s why the outcome has never been the yardstick by which ineffective assistance–

Stephen G. Breyer:

I don’t want to — I want to stop you there because I don’t understand it.

The suggestion is — I’m not taking this case, I’m making up a hypothetical since we are discussing it really based on the next case.

The defendant never heard the offer, never heard it.

It is crystal clear that if he’d heard it, he would have accepted it.

Okay.

I’m trying to separate out difficulties of this case, which strikes me as difficult because of the facts, from the principle.

And what I want you to do is to tell me why I shouldn’t accept the principle, and then we can worry about what’s a clear case.

William M. Jay:

–But I think the principle, Justice Breyer, is that you look at what — you look at what it is the Court’s being asked to set aside.

Stephen G. Breyer:

Death.

Let’s say death.

William M. Jay:

Right.

So in this case you look at the death sentence.

How was that death sentence produced?

If the defendant can show, for example, that he got bad advice about the plea–

Stephen G. Breyer:

He shows that never did he ever become aware, because his lawyer was sleeping and moved on vacation and never told him about the plea offer.

That’s my hypothetical.

William M. Jay:

–I think that’s actually an easier hypothetical than the bad advice because you could show that if the lawyer then gets — stands up and does a bang-up job at trial — the defendant is convicted of capital murder, the defendant can’t show any prejudicial effect on the trial — that means that no other lawyer doing a better job could have gotten the defendant — could even show a reasonable probability that a different verdict would ensue.

That defendant has a reliable capital murder conviction.

Samuel A. Alito, Jr.:

The Court has said that death is different.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Samuel A. Alito, Jr.:

Do you think it is inconceivable that there could be a different rule for capital cases, such as a rule requiring that in a capital case any offer of a noncapital sentence as part of the plea bargain can actually be waived by the defendant in court so that this doesn’t come up?

This is not a capital case.

William M. Jay:

This is not a capital case, and I think that it certainly–

Stephen G. Breyer:

All right, if you don’t want to do the capital case, I’m still trying to get to the principle.

William M. Jay:

–I’m happy to do the capital case–

Stephen G. Breyer:

I will change my hypothetical and say all that happened was that this perfect trial because of mandatory sentencing rules led him to prison for 50 years, as compared with a plea bargain that would have given him 2 years.

Now, he is in prison for 48 years more, and I consider that that is at least harmful to him.

So where the amendment doesn’t speak of it, where the misbehavior of the lawyer is crystal clear, where it’s 48 years more in prison, what is it that bars what seems to me obvious that an inadequate assistance of counsel, remedial through a specific decree saying reinstitute the offer, led to enormous unfairness and prejudice.

William M. Jay:

–Two points, Justice Breyer, and I want to make sure I get out my answer to your capital hypothetical, because you don’t look just at whether the sentence that resulted was worse than the sentence that could have resulted.

If that were the case, Fretwell would have come out the other way.

That is death, with no objection made, life sentence if the objection had been made.

So it’s not an outcome — it’s not a narrow comparison of outcomes.

What you look at is how the sentence was produced.

Is this defendant entitled, had this — to a lesser sentence?

Is this — had this defendant had a better lawyer at sentencing, is there even a reasonable probability that that lawyer, through a different strategy for identifying a legal error–

Antonin Scalia:

Mr. Jay, you disagree with the assertion that Justice Breyer made that this was unfair.

This man deserved to get the sentence he got, didn’t he?

He had a full and fair trial.

A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence.

How could it be unfair to give him the sentence that he deserved?

John J. Bursch:

Yes, that’s correct.

In every case–

Stephen G. Breyer:

Let’s say there is an occasion where people don’t get the sentence that they deserve because, for example, the lawyer was inadequate.

I mean–

William M. Jay:

–And in those cases, Justice Breyer, you show that the lawyer had a bad strategy at sentencing.

That may well have been the same bad strategy that led the lawyer to recommend a not guilty plea.

Let’s go to trial on my crazy strategy.

If he can show that and he can show that a better lawyer with a better strategy would produce a different result, then the Sixth Amendment entitles that person to a new proceeding.

The Sixth Amendment never entitles a person to have a court order a particular sentence.

And you can’t use the prosecutor’s offer made at a different time as the benchmark and say: Well the prosecutor was okay with it at this other time; therefore, the prosecution must be forced to live with it now.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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William M. Jay:

And that’s because a plea offer rests on a number of considerations: The need to obtain the defendant’s cooperation in other cases; the desire to spare the witnesses and the victim the burdens of trial; and frankly, to avoid the risk of an acquittal.

And the prosecution in this case and in cases like this one, where there has been a reliable conviction and reliable sentencing, the prosecution has already incurred all of those burdens.

So to look at the 51-month minimum offer that was made 8 years ago and have that be the benchmark simply is not something that this Court has ever done in its Strickland cases.

And I think it’s revealing about the Respondent’s–

Elena Kagan:

Mr. Jay, you don’t contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you.

John J. Bursch:

–We don’t — we don’t think — that’s not part of our argument here.

Elena Kagan:

Yes, because we have said that many times, isn’t that right?

John J. Bursch:

Well, the Court — let me be precise, Justice Kagan, because there are two things that the Court can be talking about.

There’s the — there’s the interaction between the State and the defendant, and that’s where the Court has customarily used language like “critical stage”, a confrontation between the defendant and the prosecution.

That’s not what we have here.

This is about private advice between the lawyer and the client, and we’re not contesting–

Elena Kagan:

What we have to recognize — is that plea bargaining is a critical phase because about 98 percent of the action of the criminal justice system occurs in plea bargaining.

And to deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment.

That’s what we’ve said.

Isn’t that right?

John J. Bursch:

–Well, I don’t think the Court has faced up — faced this particular situation, Justice Kagan.

Elena Kagan:

So it’s not a critical phase.

It’s only a critical phase depending on the outcome of what happens at that phase?

William M. Jay:

–We are — we are assuming that — that Mr. Cooper in this case had a right to receive effective advice about whether to enter this plea.

But our position is that he wasn’t prejudiced because what–

Elena Kagan:

Has — have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase, where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?

William M. Jay:

–Well, again, we don’t think this is in any way crucial to deciding this case, but Scott v. Illinois, Justice Kagan, is an example of that.

Antonin Scalia:

Mr. Jay, couldn’t — couldn’t it be said that what our cases hold is that pleading guilty is a critical phase.

Would that be enough to explain our cases?

William M. Jay:

It certainly is correct that pleading — a guilty plea hearing, where the defendant–

Anthony M. Kennedy:

Well, it’s correct, but is it enough?

Do you want us to write an opinion that plea negotiations are not a critical stage of the criminal process unless at the end of the day a guilty plea results?

William M. Jay:

–That’s not at all what we are asking, Justice Kennedy.

What we are asking–

Anthony M. Kennedy:

So Justice Kagan and I want to know what your test is.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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William M. Jay:

–Our test to resolve this case is to look at what it is that the habeas petitioner is challenging.

He’s challenging the conviction and the sentence.

In the conviction, he was found guilty by a jury.

He now says, page 14a of the red brief, that he is guilty and he wishes he had pleaded guilty sooner.

No basis for challenging the conviction.

May I finish the thought on the sentence?

John G. Roberts, Jr.:

Sure.

William M. Jay:

And — on this sentence, he was sentenced in accordance with law.

He had effective representation at sentencing and he got the sentence that corresponds to the counts of conviction.

What he wants is to reinstate a deal that was in the prosecution’s discretion to offer once upon a time.

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Newman.

Valerie R. Newman:

Thank you, Mr. Chief Justice, and may it please the Court:

It is uncontroverted here that Anthony Cooper received incompetent advice from his counsel.

It is uncontroverted here that as a result of that incompetent advice Mr. Cooper is serving between 100 and 134 months of extra time of imprisonment.

Ruth Bader Ginsburg:

I think it’s not — that he got ineffective assistance, yes, that is not controverted.

But that he would have gotten the 51 months or 68 is certainly controverted because of two interventions: The prosecutor can say no deal; I’m withdrawing it, even after an initial acceptance; and the judge can say, I think 51 to 68 is entirely improper for what this man did.

Valerie R. Newman:

Those are both true, Justice Ginsburg — Justice Ginsburg, but however the Strickland test requires a reasonable probability of a different result.

And on this record, we have no reasonable probability — we have no reason to expect that that’s not exactly what would have happened.

Samuel A. Alito, Jr.:

The relief that you want is specific performance on the plea bargain.

Valerie R. Newman:

Correct.

Samuel A. Alito, Jr.:

Isn’t that correct?

What if it had come to light, come to the prosecutor’s attention during this intervening time, that your client had committed four or five other shootings?

Would you still be entitled to specific performance?

Valerie R. Newman:

Yes.

We evaluate the case, and the Strickland analysis is an imperfect — the Strickland remedy is an imperfect remedy.

It has always been an imperfect remedy.

It will always be an imperfect remedy.

Anthony M. Kennedy:

What — what is the judge supposed to do?

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Anthony M. Kennedy:

Let’s say the remedy is it goes back before the judge.

We are trying to unwind the clock or whatever the metaphor is.

Does the judge have to prescind all knowledge of what he learned in the trial?

Valerie R. Newman:

Well, this Court has stated numerous times that it presumes a conscientious decisionmaker, and a conscientious decisionmaker would put–

Anthony M. Kennedy:

Well, I’m asking what — I’m a conscientious decisionmaker and I’m asking for your advice on what I should do.

I know the details of this crime, which were more horrific than I would have expected because I’ve heard them at the trial.

Do I just somehow forget about that — prescind that?

Valerie R. Newman:

–You would evaluate the case as you would have evaluated it at the time of the proceedings.

Anthony M. Kennedy:

The answer is “yes”.

I — I ignore everything that I learned during the trial?

Valerie R. Newman:

Yes, because the deficient — you evaluate things at the point of the deficient performance.

And at the point of the deficient performance, the judge had a certain amount of information before him, the prosecutor had a certain amount of information before him, and the defense attorney had a certain amount of information–

Samuel A. Alito, Jr.:

I mean, that’s pretty incredible.

It doesn’t matter what the defendant has done in the — has been discovered to have done in the interim.

Committed five murders, ten murders?

Valerie R. Newman:

–Well, in that case–

Samuel A. Alito, Jr.:

Wipe it out of your mind; you get — you get the plea bargain that was offered at an early point in — in the investigation of the case?

Valerie R. Newman:

–Yes, because what happens in ineffective assistance of counsel claims is the State has to bear the burden of the unconstitutionality.

And so that is a price that this Court has said the State will bear when there is — when there is a constitutional violation, because there is no perfect–

Ruth Bader Ginsburg:

The judge — the judge, he knows what the plea — let’s say he knows what the plea bargain was, but he also knows that for one of the crimes, felon in possession, that alone, the sentencing range is 81 to 135.

So without any, considering anything that happened at trial, the judge knows that the plea bargain was for less than if the man had been charged with — only with a felon in possession.

Valerie R. Newman:

–Yes, that’s accurate.

Ruth Bader Ginsburg:

So it — it seems most unlikely that a judge would have accepted the plea bargaining for 51 to 68 for the crimes that were charged.

Valerie R. Newman:

No, I would disagree with that.

In this court and I can represent to the Court in my practice before this court, which I have practiced before this court for many, many years, this plea bargain was an ordinary plea bargain.

This was not anything extraordinary.

It was very run of the mill.

It was — it was a run of the mill case–

Ruth Bader Ginsburg:

That may be, but is it not true that the sentence range was 81 through 135 for felon in possession?

Valerie R. Newman:

–I did not — typically, you only score out the guidelines for the most serious offense.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Valerie R. Newman:

So the guidelines may have been high for the felon in possession offense, but however the judge — in fashioning the remedy, you are not going to — this Court would not take discretion away from the judge.

So in fashioning the remedy, in adopting the remedy of the Sixth Circuit if this Court were to do that, this case would go back before this same judge if he’s still on the bench, and it would be — would put people back — Mr. Cooper would accept the plea, but if — the judge retained sentencing discretion.

Stephen G. Breyer:

It wouldn’t be a problem.

The problem with Justice Alito’s hypothetical, I take it, is what the order would say is that the prosecution has to for a reasonable time extend the same offer.

And then if it’s accepted, you go to the judge.

The judge doesn’t have to accept the plea.

Valerie R. Newman:

Right.

You can’t find–

Stephen G. Breyer:

You can’t make him do that.

But I have a bigger problem with this case, which is — which I may be the only one to have.

But as I’ve looked at it, I don’t see ineffective assistance of counsel within the AEDPA meaning.

That is, you have two courts in the State which have said this is not ineffective, and as I look at it it’s somewhat ambiguous at best — and we have the Sixth Circuit saying it is.

Well, I know both sides agree, but I mean, both sides couldn’t make us decide a case by saying there’s a murder when in fact it’s not.

I mean, so what am I supposed to do about that?

I find this a tough case.

I have read the record, and in my own opinion at this moment, perhaps no one else’s, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside — a contrary finding of the State court.

So what do I do?

Sonia Sotomayor:

If Justice Breyer permits me to add an addendum to give the reasons why I might agree with him, or a way of viewing this, as I read the lower court’s decisions, they said there wasn’t ineffectiveness, because he was just trying to get a better deal.

And I think that, translating what he said, the very reasonable view by the court was, the prosecutor may think of a lesser charge, because if this guy really wanted to kill this woman he would have hit her head or her chest, but he aimed low, so he was really just angry and shooting enough so that if he hit her, okay, if she died, okay.

But he really didn’t have that heinous intent to execute a gunshot to the brain.

And so he was hoping to negotiate something better.

If that’s — and Justice Breyer’s shaking his head.

If that in fact, if this is an AEDPA case, and we have to give deference to the State courts, doesn’t that resolve this case?

Valerie R. Newman:

–No.

Sonia Sotomayor:

We have to give deference to their finding.

Valerie R. Newman:

You do have to give deference to their finding, there is no question under AEDPA there is deference.

And there is actually no question, there is sort of a doubly deferential review, given the Strickland analysis.

However, the State courts did not decide this case on Sixth Amendment grounds, so there is nothing to give deference to.

The State courts decided this and the trial court said Mr. Cooper made his own choices.

That is not an ineffective assistance of counsel analysis.

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Valerie R. Newman:

The court of appeals in Michigan also did not engage in a Sixth Amendment analysis.

They adopted the trial court and said that Mr. Cooper made his own choices.

So there is — and this claim was raised specifically on Sixth Amendment grounds from the very beginning of the appeal until it reached this Court.

So there is no AEDPA deference to give to the State court’s decision.

There is no question as well that it was ineffective assistance, because the State court record does not bear out that Mr. McClain was trying to get a better deal.

John G. Roberts, Jr.:

You said earlier that the district court, the trial court judge, still retains discretion as to whether or not to approve the plea bargain, right, whether to accept it?

Valerie R. Newman:

The sentencing.

John G. Roberts, Jr.:

Yes — well, which is it, the bargain or the sentence?

It includes the sentence, correct?

Valerie R. Newman:

It’s a sentence recommendation and under Michigan law the judge cannot–

John G. Roberts, Jr.:

He has discretion — he has discretion.

So is he allowed to take into consideration all that’s happened before, not just with respect to guilt or innocence or the result of the trial, but in imposing the sentence or approving it?

Valerie R. Newman:

–Well, he can take into account anything that he could have taken into account in the first place.

But in this case–

John G. Roberts, Jr.:

But nothing that he learned at trial, I take it.

Valerie R. Newman:

–I would argue no.

I mean, certainly the court will set the parameters of–

Antonin Scalia:

What if he — what if he turns it down, Ms. Newman.

He says, no, I can’t accept this.

What happens then?

He had a new–

Valerie R. Newman:

–I would say there is not an option — oh, I’m sorry, so the judge–

Antonin Scalia:

–Yeah, the judge.

It goes back to the judge.

We agree with you and we send it back to the judge.

We reinstate the offer, okay.

He accepts the offer and it goes to the judge and the judge says, no, this is outrageous.

No, I’m not going to approve of this plea bargain.

What happens then?

Valerie R. Newman:

–Well, in that case, the case would proceed under Michigan law.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Valerie R. Newman:

In that case the judge–

Antonin Scalia:

We would have a new trial, is that it?

Valerie R. Newman:

–No.

I think — I think it would be perfectly acceptable to say that a new trial is not an appropriate remedy in this case, because he had a trial.

Antonin Scalia:

Okay.

So if the judge turns it down, then the prior trial is valid, is that right?

Valerie R. Newman:

It would depend on the reasons why the judge would turn it down.

If would have to be a legitimate reason under a state law, otherwise there would–

JUSTICE SCALIA.

Yeah.

Then the prior trial is okay?

Not that it’s okay, but I think under imperfect circumstances it’s the result that we’re–

Stephen G. Breyer:

Why?

Why, why wouldn’t the remedy be — as — judging from what you said before, is an order saying to the prosecution, re-institute the plea bargain and give him, a week or whatever it is.

Now we imagine the defendant says I accept.

So then they go to the judge, just as they would have before.

Valerie R. Newman:

–Right.

Stephen G. Breyer:

And the judge has the freedom to accept that or to reject it.

Valerie R. Newman:

Correct.

Stephen G. Breyer:

If he rejects it, there is no plea agreement.

Now the defendant must plead.

He can plead guilty or not guilty.

And whatever flows from that, flows from that.

Valerie R. Newman:

That’s also a perfectly acceptable — that’s also a perfectly acceptable remedy.

The purpose — the reason–

Antonin Scalia:

Wait.

Both can’t be perfect.

Either he has another trial, although he’s just been found guilty by a jury of 12, with an entirely fair proceeding or else he doesn’t have a new trial.

Stephen G. Breyer:

His suggestion is perfect but mine is more perfect.

[Laughter]

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Valerie R. Newman:

–Okay.

[Laughter]

Stephen G. Breyer:

You don’t, you would — he’s right, you would have to, under my suggestion, have a new trial; even though there was a trial that took place two years ago or whatever it is, correct?

Valerie R. Newman:

Correct.

Stephen G. Breyer:

But that isn’t the end of the argument.

So, if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn’t tell you about this, and he gets a whole new trial.

Valerie R. Newman:

No.

The bar on habeas — well the bar on Strickland, even not on habeas, is a very high bar, as this court said in Padilla.

And it’s not a bar that can often be met.

And so you have to show under a Strickland analysis deficient performance and prejudice.

John G. Roberts, Jr.:

A deficient performance–

Samuel A. Alito, Jr.:

Well, I don’t know if that’s going to be so hard to show.

Do you think it’s feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?

A favorable plea bargain is offered, caps the guy’s possible sentence at let’s say three years.

The defense attorney says, we’ve got a great shot at an acquittal, let’s go to trial.

I’m going to rip the prosecution’s witnesses apart.

The trial turns out to be a disaster.

Convicted on all counts.

25 years.

Do you think that it’s impossible for the rule that you want us to adopt here to be applied in that situation as well?

Valerie R. Newman:

I think it would be much more difficult, because this Court on habeas review and state courts on non-habeas review are very deferential to strategic decisions.

Almost anything that qualifies–

Anthony M. Kennedy:

Well, you say that.

But, as an administrative matter, I think we have to have some concern that these plea negotiations and discussions are in myriad circumstances.

The defense attorney is by the water cooler and the prosecutor walked by and says I’m thinking of offering you a good bargain in the Jones case.

He knows he’s going to have that prosecutor in court the next day and really beat him.

He thinks he’s going to soften him up, so he doesn’t communicate it to the client and the prosecutor later says withdrawn.

We are going to have inquiries post hoc on all these negotiations and discussions.

And it seems to me that absent some other rule, like I don’t think we have the authority to impose that all plea offers must be in writing and be stated with specificity, if that is what you are proposing, is simply unworkable.

Valerie R. Newman:

–I disagree, Your Honor.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Valerie R. Newman:

We have had Strickland that held jurisprudence for three decades.

There was a flood gates argument when Hill was decided that we are going to have all these people — that we — and we have had since McMahon v. Richardson, this Court saying plea bargaining is a critical stage.

Elena Kagan:

And most of the circuits follow your rule, isn’t that right?

Valerie R. Newman:

Right.

We already had unanimity–

Elena Kagan:

And the flood gates have not opened.

Valerie R. Newman:

–I’m sorry.

Elena Kagan:

Go ahead.

Valerie R. Newman:

Yes, we have unanimity in the federal circuits and we have — almost every state that has addressed this issue has addressed it in the same manner.

Ruth Bader Ginsburg:

Unanimity on the remedy?

Here the court said that the writ shall be granted conditioned on the state taking action to offer the 51 to 85 months plea.

So that doesn’t bind the judge, but it does bind the prosecutor.

Valerie R. Newman:

Correct.

Ruth Bader Ginsburg:

And it removes the possibility of the prosecutor saying,

“I would have withdrawn that initial offer. “

Valerie R. Newman:

Correct.

Ruth Bader Ginsburg:

So the prosecutor — the remedy is — is that the remedy that’s uniform?

That the prosecutor has no discretion, only the judge does?

Valerie R. Newman:

Well, the remedies vary.

When I said unanimity, I didn’t mean every Court in every circuit does exact — handles this exactly the same way.

Unanimity in the sense that every federal circuit and almost every state that has addressed this issue, and they have addressed this issue for over 30 years, has found that there is a cognizable Sixth Amendment violation that can be remedied on appeal.

Elena Kagan:

And perhaps the lack of unanimity on the remedy question is appropriate.

I mean people have been trying to suggest different remedies.

But perhaps one way to deal with the remedy question is to recognize that these cases present very different factual circumstances, that there is a lot of variation in them.

And to give a substantial amount of discretion to the lower courts to work out what the best remedy is, consistent with that factual variation.

Valerie R. Newman:

Absolutely.

And it’s the same thing the courts have been doing, again, since Strickland and Hill were decided.

Antonin Scalia:

Like what.

What factual variation do you think justifies a categorically different remedy.

I mean, it seems to me some of the remedies are good and some are bad.

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Valerie R. Newman:

Correct.

Antonin Scalia:

What factual — I mean, give me an example of the different remedies and how a certain fact situation could make one okay and the other not okay.

Valerie R. Newman:

Well, even in the two cases before the Court today.

I mean, in Mr. Frye’s case he accepted a plea and the state court ordered a new trial as a remedy for the ineffective assistance of counsel violation.

In my case and Mr. Cooper’s case–

Antonin Scalia:

Right.

And why was that okay there?

Why was that okay there?

What factual circumstances made that okay there?

Valerie R. Newman:

–Well, that’s just — I don’t know that the factual circumstances make it okay, but it was the remedy that the State — I’m not sure I understand your question.

It was a remedy that the State ordered and in this case it’s just the remedy that was ordered by the Federal court was a remedy–

Samuel A. Alito, Jr.:

–a situation where the — where the defendant turns down — where a plea is turned down and the defendant goes to trial, are there any facts in — any facts that would make any remedy other than specific performance the correct remedy in that situation?

Valerie R. Newman:

–These cases are so fact-specific, Your Honor, I don’t want to evade the question about a hypothetical, but there — every case is so fact-specific that I think there — the possibility exists that a — that–

Samuel A. Alito, Jr.:

You’re recommend — you’re recommending specific performance as the remedy for your case, and I agree with you that is, if there is to be a remedy, it’s the only remedy that makes a — any modicum of sense.

The remedy of giving a new trial when the person has already had a fair trial makes zero sense.

Valerie R. Newman:

–That’s correct.

Samuel A. Alito, Jr.:

So what I’m looking for is any situation — you said leave it to the discretion of the trial judge.

But what is — what discretion is there?

What remedy in that situation other than specific performance would be an appropriate — would remedy what you claim to have been the violation?

Valerie R. Newman:

Well, in — in Mr. Cooper’s case I think the — the remedy in the Sixth Circuit is the only appropriate remedy that — that puts every — that is narrowly tailored to the Sixth Amendment violation, and that’s what this Court has said.

I mean, this Court has given direction to the courts, to lower courts that you just narrowly tailor the remedy to fit the situation, because there is so many factual–

Stephen G. Breyer:

Well, let’s go back because I’m now becoming convinced — I am — I am trying out what Justice Scalia suggested.

Maybe that does work better.

What — what you’d say is first, throw the defendant out, unless you are convinced that not only is there ineffective assistance, but also it would have made a difference; he would have accepted the plea bargain.

Valerie R. Newman:

–Correct.

Stephen G. Breyer:

So now they have to hold the plea bargain open.

They then do it.

They then go to the judge, like any plea bargain.

90 percent of the time the judge will say fine, and that’s the end of it.

Valerie R. Newman:

Correct.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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Stephen G. Breyer:

But should the judge decide that this is a case where he would reject the plea bargain, for any one of a variety of reasons, then our assumption was wrong and we reinstate the previous trial.

Now does a judge just say it’s over, you were tried, you were convicted, that’s the end of it?

What’s wrong with that as a remedy?

I mean, what’s — why is that — why does that muck up the criminal justice system in some way?

I think that’s pretty much what Justice Scalia suggested, and I — and I am now trying that out, because the more I think about it, the more I think maybe that’s okay.

Valerie R. Newman:

Well, I — I believe that is what is suggested.

And I–

Antonin Scalia:

Don’t — don’t blame it on me.

[Laughter]

I don’t — I don’t — it’s your suggestion that we set aside a perfectly fair conviction.

Stephen G. Breyer:

Yes, but I–

Antonin Scalia:

This is just a hypothetical.

If you are going to set it aside–

Valerie R. Newman:

–Right.

Antonin Scalia:

–I think you should put it back in.

Valerie R. Newman:

Well, again, right.

It is going to depend on what happens — happens below, and that — we don’t — I mean, the — the concept here is one–

Sonia Sotomayor:

You’re — you are begging the question.

Valerie R. Newman:

–Okay.

Sonia Sotomayor:

Okay?

Because yes, I think Justice Breyer’s first statement, you have to prove the guy was going to take the plea, because there is no sense in — in giving him a remedy that he would have never sought.

Valerie R. Newman:

Right.

Absolutely.

Sonia Sotomayor:

All right?

But it goes back to, I think it was Justice Alito or Chief — or the Chief Justice’s question of on what basis can the judge reject the plea?

You have said earlier that he has to put aside any information he learned during the trial, and that’s really the nub of this case.

What are the grounds that you are proposing the judge can use to reject the plea?

Valerie R. Newman:

That — any grounds that would have existed in the original circumstances.

So if the judge — in — in Michigan there is a variety of reasons why a judge can say I — I’m not going to accept this sentencing recommendation.

John G. Roberts, Jr.:

–So how are you ever going to know that the defendant would have accepted the plea agreement?

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John G. Roberts, Jr.:

Because by not accepting it he has a chance of going scot-free.

He’s going to have a fair trial, that’s the assumption; and he may be acquitted.

So how is a judge supposed to say — I mean, presumably the defendant will always say, I would have taken that deal, because it’s better.

So how is a judge supposed to go back and decide whether that’s true or not?

Valerie R. Newman:

Well, always — in large part, it’s not going to depend on the defendant, it’s going to — in larger part it’s going to defend on — depend on defense counsel–

John G. Roberts, Jr.:

Why?

Valerie R. Newman:

–in making that determination, because Strickland always looks at strategy.

I mean that — that’s the underlying–

Anthony M. Kennedy:

I think you can answer the Chief Justice’s question.

The Chief Justice said how are you going to know — you have to show prejudice.

Valerie R. Newman:

–Correct.

Antonin Scalia:

And there is no prejudice unless he would have accepted the deal.

How are you going to know that he would have?

Of course he is going to say he that would have, but how is a trial judge going to make a credibility determination on that — on that issue?

I guess it’s just a credibility determination.

I don’t know how he’s going to do it.

I think you can answer the Chief Justice’s question yes or no.

Valerie R. Newman:

Yes — I don’t think I can answer it yes or no.

John G. Roberts, Jr.:

How is the judge — how is the judge ever going to know, be able to decide whether the defendant would have accepted the deal or not?

Valerie R. Newman:

The same way that — that trial courts decide any question of fact.

In this case we had testimony from the trial attorney.

The trial attorney told the judge, I told him not to accept the plea because he legally could not be convicted of the charge.

I mean, Mr. Cooper–

John G. Roberts, Jr.:

It’s the defendant’s choice, not the lawyer’s choice.

It’s the defendant’s choice.

Valerie R. Newman:

–But he — but he has the right to assistance — to the effective assistance of counsel in making that critical choice, and he didn’t have the effective assistance of counsel on — Mr. Cooper wrote letters to the judge–

John G. Roberts, Jr.:

That’s the effectiveness question.

I understand that to be taken out of the case by the concessions on the other side.

I’m talking about the prejudice question.

Valerie R. Newman:

–Correct.

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John G. Roberts, Jr.:

How is a judge supposed to know?

Valerie R. Newman:

The judge looks at the record before him.

So in this case we had Mr. Cooper’s testimony–

John G. Roberts, Jr.:

People have different — some people are willing to take the chance.

Okay?

Let’s say the there is a 20 percent chance that the person will be found guilty.

Some people will say, I’m willing to take that chance because I just don’t want the chance of — of going to jail.

I am willing to roll the dice.

Other people will say no, that’s too much.

Whether you want to go to jail may cut one way or the other, but how is a judge supposed to decide?

Ask him, are you — do you take chances?

Valerie R. Newman:

–No, by — by looking at — Mr. Chief Justice, by looking at the evidence in the record before him.

In this case Mr. Cooper wrote–

John G. Roberts, Jr.:

So the judge should decide whether he would take the deal.

Valerie R. Newman:

–No–

John G. Roberts, Jr.:

Look at the evidence before him and say, boy, I would take that deal.

[Laughter]

Valerie R. Newman:

–No, no — no, no, no.

Mr. — Mr. Cooper wrote two letters to the judge saying I want to accept a plea.

Mr. McLean, the trial attorney who provided the incompetent advice, told the judge in a post-conviction hearing that Mr. Cooper wanted to take a plea.

I mean, there — there is no — it is beyond question in this case.

Samuel A. Alito, Jr.:

Do you think the length and the complexity of the trial has any bearing on this?

This was a relatively short and simple trial.

But let’s say a prosecutor offers a plea deal in a case in which the trial is going to take 6 months and it’s going to cost a million dollars and if they try that case, there are going to be other cases that they won’t be able to try.

The plea is rejected, the case is tried, and then afterwards the — the remedy is to — to — to reinstate this plea offer, which was predicated on the relieving the prosecutor of the burden of having to try that case.

Valerie R. Newman:

Well, every plea bargain is predicated on relieving the prosecution of having the burden of — of trying a case.

I mean, the key here is, let’s get back to what Strickland stands for and it’s the unreliability or the unfairness of the proceedings.

It’s not just an unreliability determination.

So in this case Mr. Cooper had two choices.

He could take a certain plea with almost a certain sentence or he could have a — really what was a charade of a trial because his attorney told him, you — you can’t be convicted of this offense; you will not be convicted of this offense following the trial.

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Valerie R. Newman:

You can be convicted of a lesser–

Ruth Bader Ginsburg:

You conceded — you conceded he had a fair trial.

That’s not in the case.

Anthony M. Kennedy:

Right.

Valerie R. Newman:

–I didn’t–

Ruth Bader Ginsburg:

It can’t be a charade and still be fair.

Valerie R. Newman:

–It’s an unfairness of the entire proceedings that were presented.

All right?

So there is no separate habeas claim with respect to the trial, but the — but reality is when you look at the criminal — when you look at the Sixth Amendment, it talks about the criminal–

Anthony M. Kennedy:

You are saying it was unfair to have a fair trial?

Valerie R. Newman:

–I’m saying it’s unfair to go to trial when your attorney tells you, you can’t be convicted.

Anthony M. Kennedy:

You are saying it’s unfair to have a fair trial; isn’t that correct?

Valerie R. Newman:

I’m–

Anthony M. Kennedy:

That has to be your position.

Antonin Scalia:

It is.

Valerie R. Newman:

–I’m saying it’s unfair to say that the trial erases the unfairness when there was no possibility but for a conviction at the end of the road.

So this was a certain guilty plea or this was a — wrong guilty plea under the math of a trial.

John G. Roberts, Jr.:

Oh, but you can never say that there is no possibility of acquittal.

Juries can decide not to convict no matter what the evidence.

Valerie R. Newman:

There was no defense.

I mean, there was no possibility–

John G. Roberts, Jr.:

That’s up to the jury.

It’s not up to us ex ante to decide this guy is definitely going to lose, so let’s not waste our time.

Juries — I don’t want to say often but it is not — it’s certainly not inconceivable that the a may decide for whatever reason we are not going to convict this guy.

Right?

Valerie R. Newman:

–That’s true, but in this case, Mr. McLean told Mr. Cooper he would be convicted.

I mean, he assured him of conviction.

He said: You will be convicted at the end of the trial; you’re just going to be convicted of a lesser offense.

Sonia Sotomayor:

Counsel, what was the defense at trial?

Valerie R. Newman:

I’m sorry?

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Sonia Sotomayor:

What was the defense at trial?

Valerie R. Newman:

There wasn’t — there was no defense presented.

There was no real defense presented at trial because–

Sonia Sotomayor:

Did he deny having committed the act of the shooting?

Valerie R. Newman:

–Never.

Sonia Sotomayor:

At trial?

Valerie R. Newman:

No.

Sonia Sotomayor:

Is it the case that in most of the cases in which motions of this kind are brought to trial judges if there is a defense of mistaken identity or of “I didn’t do it”, that judges often find the defendant has not proven that they would have taken the plea?

Valerie R. Newman:

I didn’t–

Sonia Sotomayor:

In most cases in which a trial is had, where the defendant is pleading misidentification or: I just didn’t do this act.

In those cases, do most of the trial judges not permit or don’t find that the defendant has met their burden of proving that he or she would have taken the plea?

Valerie R. Newman:

–I don’t know that the cases bear out that if you have a valid defense it would be harder.

But I would agree with that — if that’s a hypothetical, that if you have a valid defense, it would be a lot harder to be in this position of showing that you would have taken the plea.

Sonia Sotomayor:

I thought of this case, and you can correct me if I am wrong, that your client told the attorney from the beginning: I did it; I want to plea.

Valerie R. Newman:

That is correct.

There was never — There was no question in this case at any step, at any stage of the proceedings and there was no — never, never anything from the trial attorney other than incompetent advice.

He never went to trial for an acquittal.

He went to trial because he believed legally his client would be convicted of a lesser offense that would put him in a better position than if he had accepted the plea.

That’s the only reason.

John G. Roberts, Jr.:

You said that — I want to make sure I understood your point.

You said there was no defense.

Does that mean you didn’t — he had a frivolous defense or that he literally did not put on a defense, just said: Just this state has to prove the case and they haven’t done it.

Valerie R. Newman:

Well, he held the state to its burden, and that is a defense.

I mean, I–

John G. Roberts, Jr.:

Did he–

Valerie R. Newman:

–I’m not saying literally no defense, and I apologize if that’s the what he it came across, but no cognizable defense.

It was not mistaken identification or we didn’t intend to hit her.

I mean, he never contested the basic facts of that case.

John G. Roberts, Jr.:

–Something the jury could have accepted, right?

Even if it’s not legally true that if you shoot him at the — the person below the waist, that’s not a defense, but I can see a reasonable juror saying he probably didn’t intend to kill her.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John G. Roberts, Jr.:

He shot her below the waist.

Maybe that is not such a bad strategy.

Valerie R. Newman:

Except the defense counsel on this record specifically said that he — that he was not running a strategy and hoping for that, that he told the client legally the only thing that could happen to him so he was in a better position by going to trial.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Bursch, four minutes.

John J. Bursch:

Thank you.

I would like to start at the one point where I think all of us, including counsel on both sides agree, and that’s that a second trial after an error-free first trial doesn’t make sense.

And that right there says a lot about Mr. Cooper’s case, because a Strickland remedy is typically a new trial.

And it’s exceedingly strange that they are now saying that: I don’t want a new trial.

That demonstrates that what they are claiming is not a Strickland violation.

I would like to address, Justice Breyer, your suggestion that maybe you could have specific performance of the plea; and if it’s rejected, then the trial result could simply be re-imposed.

And the question is: Well, what’s the problem with that?

And I can tick off at least five.

First, as Justice Ginsburg pointed, out it takes away the prosecutor’s ability to withdraw the plea which he or she undeniably would have had the right.

Second, as Justice Alito said, it ignores that there is information that could be learned in the interim.

Mr. Cooper could have shot three or to four other people.

Third, it ignores the fact that an error-free trial has taken place.

The prosecutor has taken the risk of putting that the 8-year-old sexual abuse victim on the stand, and you cannot take that risk away.

Fourth, as I already mentioned, we have the separation of powers issue and prosecutorial discretion.

Fifth, we are going to have intractable problems.

Say the offer was plead to A, we will dismiss B; he rejects it based on deficient advice; you go to trial; he is convicted on A and acquitted on B, and now we are going to try to enforce the plea on A?

I mean, that’s almost a double jeopardy problem.

So there is intractable problems.

The second point I want to make is about the death situation.

And that’s one we take very seriously.

And, Justice Alito, it may be that in a death penalty situation there could be a due process right or some other constitutional right that may mitigate in favor of requiring something be put on the record.

But what is clear is that under this Court’s existing precedent, that is not a Strickland violation because the amount of the sentence, whether it’s death or 50 years, has nothing to do with the reliability of the adjudicatory proceeding and the sentence.

Finally, the last point that I want to make is something else on which we can all agree.

Mr. Cooper is guilty of shooting Kali Mundy.

Audio Transcription for Opinion Announcement – March 21, 2012 (Part 1) in Lafler v. Cooper

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John J. Bursch:

He also got exactly the sentence that the people prescribed for the crime that committed.

There is very little unfair about holding him to that sentence.

As Justice Kennedy said,

“It’s the position of Mr. Cooper that it is unfair to have a fair trial. “

And from our perspective, that is really the beginning and the end of this inquiry.

And unless you have any further questions–

Anthony M. Kennedy:

I have one — It’s more proper, I think, for the government of the United States under the Federal rules, Rule 11, there has to be a colloquy before a plea is entered.

Do you think the Federal rules and perhaps state rules should be amended so that judges, trial judges before imposing a sentence inquire: Have there been plea offers; have they all been communicated to the defendant?

Is that good practice?

John J. Bursch:

–It could be good practice, but it wouldn’t have solved the problem here, because even if they had put the fact of the plea on the record, the problem was the alleged deficient advice that the lawyer gave to the client in private.

And so that doesn’t solve the core problem.

The core problem is that they are trying to claim that it was unfair to have a fair trial.

Anthony M. Kennedy:

Well, if they had — if plea offer had come out — I don’t know how it would work.

When you enter a not guilty plea, you enter a not guilty plea.

John J. Bursch:

Right.

You know, the judge under your theory then would have had to inquire: Well, what advice did your attorney give you with respect to that?

And then evaluate whether that advice was good advice or bad advice.

And I respectfully submit that that would not be a good policy to adopt by rule.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.