October 2011

For those of you who don’t know, the Baader-Meinhof Phenomenon is that weird occurrence where you hear about something for the first time and then encounter it again shortly afterwards. (Don’t worry, I didn’t know that term either until I searched for it on Google. And if there is any truth to this phenomenon you will come across this term again soon.) As a newly minted lawyer, many legal concepts that are second nature to seasoned attorneys are in the forefront of my mind, and my latest fixation is on ineffective assistance of counsel, with a twist.

About a week ago, I benched a moot court competition with a problem involving IAC at the plea bargaining stage. Unfortunately, it wasn’t a cut-and-dried Strickland and Hill issue, since the case involved a defendant who declined a favorable plea offer based on erroneous legal advice and proceeded to trial. In this fictional case, the defendant’s attorney advised him that evidence of shooting someone in the arm and leg would be legally insufficient to prove assault with intent to murder. The defendant was advised to reject a five-year plea offer and proceed to trial. He was later convicted (much to his surprise) and sentenced to a term three times longer than the plea offer.

This scenario doesn’t just occur in the closed universe of moot court briefs, however. In fact, one of the reasons I even agreed to bench the competition was because the problem closely mirrored one of my current cases. While I had thoroughly researched this issue at the state level, I was curious to see the arguments from both sides based on nationwide case law. After watching two hours of interesting debates, I left the competition wondering why the real Supreme Court has not yet decided this issue.

Last night, my question was answered when I ran across a news article discussing two cases involving ineffective assistance of counsel at the plea bargaining stage: Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209. While this may not seem strange to any of you, this particular article appeared on the sidebar of my South Georgia hometown newspaper’s website—hardly the proper venue for any academic legal commentary. (Sure, this may have been a coincidence, but I like to think that it’s the Phenomenon at work.) The Supreme Court of the United States heard oral arguments in both cases this morning.

In Lafler, the Sixth Circuit held that Cooper’s attorney was ineffective for convincing Cooper to reject a favorable plea bargain based on an erroneous understanding of the law. The court also ordered “specific performance” of the plea bargain, even though Cooper was later convicted at a fair trial. Here, Cooper was charged with assault with intent to murder and possession of a firearm by a felon after shooting a woman several times below the waist. Cooper was offered a plea of 51 to 85 months, but he rejected the plea offer after his attorney (wrongly) informed him that the state could not prove intent to murder since the shots were fired below the waist. Cooper was later convicted at trial and sentenced to 185 to 360 months in prison.

In Missouri, respondent Frye was arrested for his fourth violation of driving with a revoked license—a class D felony with a four-year maximum sentence. The prosecutor conveyed two offers to Frye’s counsel. The first choice was that Frye could plead guilty and the state would recommend three years, agree with the court if it gave probation, but would ask that ten days be served in “shock” incarceration if probation was granted. The second option would change the charge to a misdemeanor with a maximum one-year sentence, and the State would recommend a 90-day prison sentence. Rather than informing his client about the plea offers, Frye’s attorney entered an “open” guilty plea. Frye was sentenced to three years in prison.

Both cases are important to defendants and criminal defense lawyers alike because they actually address the real-world implications of the plea bargaining process. It is easy to rely on a plain reading of the Sixth Amendment and argue that because there is no constitutional right to a plea bargain, an attorney’s ineffective assistance at the plea bargaining stage does not deprive a defendant of any constitutional rights. But this argument would ignore what really happens in criminal cases. The majority of criminal charges are disposed of by plea bargains, not by trials. For many criminal defendants, a plea bargain is not only a crucial part of the process; it is the only part of the process that involves real deliberation.

After the Court’s decision in Padilla v. Kentucky last year, I have hope that the Court will continue to recognize the real dangers of ineffective assistance of counsel at the plea bargaining stage. The second-prong of Strickland is not only met when a defendant would have insisted on going to trial had he been properly advised at the plea bargaining stage; a defendant is also prejudiced when he would have accepted a plea if he had been properly advised. If SCOTUS agrees, the opinions in Lafler and Missouri will not only change the way lawyers think about their representation during the plea bargaining process, but their whole approach to IAC claims as well.

A few months from now, my fascination with IAC at the plea bargaining stage will subside as my caseload inevitably grows and new issues occupy my mind. The issues presented in Lafler and Missouri will fade away as I am faced with unique questions and research new problems for my clients. Then, one day, I will browse my hometown newspaper’s website and see “SCOTUS Decides Bad Plea Advice Cases” on the sidebar. And the Phenomenon will begin again.


Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until there is no procedure left, no matter what the odds, you will eventually win. I thought about Mr. Miller’s post all day. And I decided to add a few point here about the idea of “fighting” through to the bitter end and what it means for the appellate process. There’s nothing wrong, in criminal cases, with fighting it through to the bitter end. Unlike in the civil arena where the central issue is money, in criminal law the issue is liberty. For a person with a lengthy prison sentence, the slimmest of odds may be worth the effort. When the issue is money, the time to stop is the point where the resources it might take to win begin to are outweighed by the odds of losing. So, let’s assume that any criminal case is worth taking the appellate and habeas process as far as you could possibly go, there is still an important question to ask. When does the client make the decision that he is in it for the long haul? For too many, that decision comes at the moment the jury files into the courtroom and delivers a guilty verdict. It’s a good decision that comes too late.

You don’t begin the appeal when the verdict comes, you begin the appeal when you open the case at the trial level. Part of client counseling involves planning for appeal. Unfortunately, nobody wants to talk about a guilty verdict at that stage. It’s one thing to purchase life insurance. But nobody wants to purchase life insurance from his doctor. But if you’re the trial lawyer, your job is to win the trial and make a record for appeal.

The movie Moneyball is applicable here. If you’ve not read the book or seen the movie, an important issue is how much traditional baseball stats really tell you about a player. For instance, RBI (runs batted in) is not the stat that you might think it is, because a player who doesn’t often bat with runners on base doesn’t get the same number of opportunities to hit RBIs as a batter who has other hitters in the line up. To drive a run in without base runners requires the batter to hit a home run.

Well, an appellate lawyer is essentially a batter who comes to the plate with two outs already recorded. Even the biggest power hitters will hit home runs infrequently. Take Hank Aaron, for instance. Aaron is remembered for hitting 755 home runs in his career. His total is impressive because he earned it at a time when players weren’t using steroids. But it’s important to consider his home run total in the context of his total career at bats. He had 12,364 career at bats. So the odds of hitting a home run, even for Hammerin’ Hank, were pretty low on average.

If the trial lawyer made a good record for appeal, through objections, motions, and rulings, then the appellate lawyer comes to bat with the bases loaded. At which point, the goal is simply to put the ball in play. It is helpful to look at appeals as analogous to RBIs. An appellate lawyer can hit home runs, but generally it’s much easier to appeal with a good record.

Now comes the part where the analogy breaks down. In baseball, the appellate lawyer can bat in more than one place in the lineup. In the past year or so, I’ve been fortunate enough to be brought into cases to handle motions and objections at the trial level. It’s great to be an appellate lawyer on a trial team. I have a particular role. I’m focusing on the record. The trial lawyer gets to smile for the jury and do all the other stuff trial lawyers do. And the appellate lawyer gets to put himself on base and hit himself in.

Unfortunately, I’m very often called in to pinch hit with two outs where I have to hit a home run to win. Hopefully more trial lawyers will start putting an appellate person on the trial team or at least start learning to see the game through an appellate lens. Hopefully more clients and trial lawyers will take a lesson from Moneyball and not from the Amanda Knox case, where the appeal was a “do-over” and not a detached examination of the errors at trial.


I’ve already been asked about it several times. For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiate plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It doesn’t matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

An Italian legal expert I am not, but the New York Times piece from today highlights key differences between the two systems that are worth noting and highlighting for the practitioner or for the prospective appellate client.

  • The appellate court in Italy acquitted a criminal defendant. Appellate courts in the United States do not acquit criminal defendants. The nearest equivalent in the US is a finding that there was insufficient evidence to convict and a reversal on that basis. In US Courts, a verdict will be upheld on the facts unless the evidence, when considered in a light most favorable to the prosecution, was insufficient for any reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Appellate courts in the US neither investigate the case nor “reweigh” evidence on appeal.
  • International media attention appears to have had an impact on the Italian appellate court’s decision. In the U.S., at least in Georgia, media attention doesn’t necessarily help. But sometimes it can have a direct impact. Here, it’s a toss-up.
  • The appellate process in Italy “evaluates both procedural questions and can reopen the investigative phase.” What’s done is done in the American appellate process. The record is set in stone in an American appeal. The focus here is almost exclusively on procedural questions. Unless there is evidence of misconduct on the part of the State or a significant error from defense counsel, a new investigation won’t help. And in the American system, it is important to file motions and raise objections early and often so that there are procedural things to raise at the appellate level.
  • Critics noted that the legal system in Italy was “medieval or barbaric.” Our system is entirely too young to be described as medieval. The process in Italy doesn’t seem so barbaric from our perspective, given that there is not a comparable post-conviction process here to re-weigh the evidence. And they don’t kill their defendants in Italy.
  • The appellate panel was made up of six citizens and two judges. The role of citizens in the U.S. system ends with the verdict, and an acquittal here cannot be appealed as, apparently can the acquittal in Italy.

Again, I am no expert in the Italian legal system. But there is enough of a difference between what happened in the Knox case and what could ever happen in Georgia, to make it an apples and oranges comparison. You’ll get questions from clients assuming that an appellate do-over is possible. And you’ll hear about Amanda Knox. With some preparation, that moment can be a teachable moment.