The Washington Post

Supreme Court questions bad legal advice in plea bargains; will not hear case about memorial crosses along Utah highways

Anthony Cooper got some very bad legal advice when considering a plea deal for shooting an acquaintance four times. His lawyer said the prosecution would not be able to prove intent to murder because Cooper had missed a shot to the head and hit his victim only below the waist.

So Cooper turned down an offer of four to seven years in prison. He went to trial, was convicted and is now serving 15 to 30 years.

Cooper’s new lawyers convinced the U.S. Court of Appeals for the 6th Circuit that the legal advice was so egregious that it violated Cooper’s right to effective counsel.

But the Supreme Court on Monday seemed far more skeptical that Cooper should get another shot at the plea bargain after he got a fair trial and was sentenced to a far longer term in prison.

The point of the Sixth Amendment right to effective assistance of counsel is to ensure fair proceedings, some of the justices said, not to get the defendant the best deal.

“This man deserved to get the sentence he got, didn’t he?” Justice Antonin Scalia asked.

Justice Anthony M. Kennedy amplified the point in his questioning of Michigan public defender Valerie R. Newman, who represented Cooper at the court.

“You are saying it was unfair to have a fair trial?” Kennedy asked.

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

The larger question the court was confronting was whether the right to effective counsel during trial and sentencing should also apply during the more informal negotiations over plea bargains.

Several of the justices noted that about 95 percent of criminal cases are disposed of by a guilty plea.

Besides Cooper’s case, the court heard on Monday another that raises similar issues.

It was brought by Galin E. Frye, whose lawyer never told him that Missouri prosecutors were willing to let him plead guilty to a misdemeanor for his charge of driving with a revoked license and serve 90 days in jail.

After the deadline for the deal passed, prosecutors withdrew it, Frye pleaded guilty and was sentenced to three years. Frye did not learn about the first offer until he was in jail and a new lawyer was preparing an appeal.

In both cases, the states agreed that the men got bad legal representation but said the court’s precedents limit the right to effective counsel to critical points in the proceedings where outcomes are determined.

Justice Elena Kagan said the plea bargain in Cooper’s case seemed like one of those times. “He is sitting in prison three times as long,” she told Michigan Solicitor General John J. Bursch. “That’s a different outcome.”

But others wondered about practical aspects of ruling for Cooper. After all, a prosecutor may withdraw a plea agreement even after a defendant has accepted it. And a judge does not have to agree to it.

The cases are Lafler v. Cooper and Missouri v. Frye .

Pass on Utah cross case

The justices sidestepped a case raising constitutional questions about government display of religious symbols, declining on Monday to review a lower court’s decision that 12-foot-tall crosses along Utah highways in honor of dead state troopers are improper.

The justices gave no reason for passing up the case, and Justice Clarence Thomas said the court was abdicating its responsibility to provide “clarity to an Establishment Clause jurisprudence in shambles.”

Utah has blessed a private association’s actions in erecting more than a dozen memorial crosses along the state’s highways to honor state troopers. American Atheists sued the state in 2005.

A divided U.S. Court of Appeals for the 10th Circuit in Denver said the crosses were an endorsement of Christianity that violated the Constitution’s protection against establishment of religion.

Thomas said the court’s precedents on public crosses and such religious displays as the Ten Commandments are so convoluted that it is impossible for lower courts or the public to know what is allowed and what isn’t.

“Our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess,” Thomas wrote.

The two cases the court turned down were Utah Highway Patrol Association v. American Atheists and Davenport v. American Atheists.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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