From a criminal procedure standpoint, one of the most important aspects of the 6th Amendment is the right to counsel. Case law over the years has consistently held that counsel must be effective during criminal trials in order for convictions of defendants to be affirmed.

However, on March 21, the United States Supreme Court held that the 6th Amendment applies not only to trials, but to the plea bargaining process as well. In two separate cases, Missouri v. Frye and Lafler v. Cooper, the Court held in 5-4 decisions that the 6th Amendment protections extend to the plea process and said that defendants can actually sue their lawyers for ineffective assistance of counsel if they mishandle plea offers.

Most of you know that I am a very strong advocate for protecting the constitutional rights of our citizens. However, this is an unfortunate decision and will do very little to protect the rights of people accused of crimes. Also, while this decision might not seem to be a big deal to the community as a whole, allow me to explain why it is.

First, many convicted defendants who are serving lengthy prison sentences already assert ineffective assistance of counsel against their former attorneys when they lose at trial. It is basically blaming the lawyer for why the defendant is incarcerated. While some of these claims have merit, and I have argued this position on appeal for clients, a vast majority of these claims are meritless. This ruling will open the floodgates of litigation on an issue which consists of about 85% of the criminal process which is plea bargaining. Most of this litigation will be just as or more so meritless as ineffective assistance of trial counsel claims.

Second, these rulings could open the opportunity for convicted defendants to sue prosecutors as well. I am sure that sooner or later a case will come before our appellate courts in Georgia specifically asserting that a prosecutor mishandled some aspect of the plea process.

Sometimes a prosecutor does not even make a recommendation in a case. This leaves little if any room for a plea bargain. Again, more litigation that will be meritless for the most part.

Lastly, what position does this put the trial judge in? Judges are supposed to stay out of the plea bargaining process in Georgia. That was made very clear last year by the Georgia Supreme Court. Yet, the trial judge also has the duty to ensure that the defendant’s rights are protected and that he gets a fair trial. How can a trial judge do this with these new opinions by our Supreme Court?

Meritless motions and hearings waste the precious, valuable, and limited judicial resources that must be shared by the community as a whole. If you don’t think that our courts are busy, just visit your local courthouse about 9:30 am on any given morning during the week.

With all of this said, from a practical standpoint, I believe that most experienced criminal defense lawyers effectively communicate plea offers from the state during plea negotiations. I communicate these offers even when I am almost certain that my client will not accept the offer. I view it as my duty to keep the client informed.

However, all lawyers handle their cases differently. For instance, some lawyers may not tell a client about a plea offer of 80 years to serve in prison if the lawyer clearly knows the client will not accept such a plea. Is that ineffective assistance of plea counsel? I would not think so.

As usual, Justice Scalia summarized this decision with clarity, common sense, and from a true constitutional standpoint. In his dissent, he said that “these rulings open a whole new field of constitutionalized criminal procedure: the field of plea bargaining law.” He continued, “Until today, no one has thought that there is a constitutional right to a plea bargain.”

He is right. This is just another right not found in the Constitution, but created by the Court.