Frye and Lafler: Much Ado About What We Do — And What Prosecutors and Judges Should Not Do (Inside N

The decisions in Missouri v. Frye and Lafler v. Cooper are likely to prompt prosecutors to routinely convey plea offers in writing or place those offers on the record.

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For practicing criminal defense lawyers, it is hardly news that the responsibility to provide effective representation to clients throughout the entire case is a constitutional mandate. But for some reason, many commentators viewed the recent decisions in Lafler1and Frye2 as defining some wholly new right, or as Justice Scalia said in dissent, “the Court today opens a whole new field of constitutional law: plea bargaining law.”3 It is doubtful that most practitioners would agree. For as long as plea offers have been a feature of criminal practice, responsible and competent lawyers have recognized a responsibility to tell their clients of the offer and do their best to accurately advise on the pros and cons. Indeed, professional standards have long recognized this duty.4 To the extent that the U.S. Supreme Court has definitively held that the constitutional right to effective assistance of counsel embraces the plea bargaining phase, there is only one real question: what took so long?

In Missouri v. Frye, Galin Frye was charged with driving with a revoked license. Because he had three prior convictions for the same offense, he was charged with a felony that carried a potential sentence of four years’ imprisonment. His lawyer never told him about an offer of a 90-day sentence in exchange for a guilty plea to a misdemeanor, with a time limit for acceptance of the plea. Subsequently, Frye was arrested again for the same offense, and with no offer extended by the prosecution, he pled guilty and received a three-year sentence. In Lafler v. Cooper, Anthony Cooper was charged with assault with intent to murder and other offenses. It was alleged that Cooper pointed a gun at Kali Mundy’s head, fired, and missed. Cooper then chased Mundy, firing repeatedly, hitting her in the hip, abdomen, and buttocks. The prosecution offered to recommend a sentence of 51 to 85 months in exchange for a guilty plea. In a communication to the court, Cooper admitted his guilt and indicated he would accept the plea offer. His lawyer, however, advised him to reject the offer because, in the lawyer’s preposterous and incorrect legal analysis, his client could not be convicted of attempted murder because the victim had been shot below the waist.5 Cooper proceeded to trial, and after conviction was sentenced to 185-360 months, the mandatory minimum sentence.

These cases present troubling questions with respect to the remedy. In one case, after the opportunity to resolve the case expired without the client ever knowing about the offer, he committed another, similar offense. In the other case, the defendant’s sentence was imposed after an arguably fair trial. But there is nothing troubling or unclear about the basic holding that the clients were undeniably prejudiced by the dereliction of counsel. Can anyone seriously doubt that in each case the representation was patently inadequate? What would the right to counsel mean if a lawyer did not have a responsibility to convey a plea offer and provide reasonably accurate analysis to enable a client to make an informed decision? Can one even imagine what the practice of criminal defense would become if the Court had decided these cases the other way?

 The Supreme Court’s decision was clearly presaged by Padilla v. Kentucky,6 a decision that truly broke new ground. In Padilla, the Court held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. After recognizing that the inherent disabilities that flow from a conviction are as important as the penal sanction, it would have been quite astounding had the Court deemed it constitutionally acceptable to fail to advise the client of an opportunity to serve far less time either by not telling the client of the offer or by providing patently inaccurate legal analysis.

Thus, from a practical standpoint, these decisions at first blush do not appear likely to alter existing practice by competent counsel. They are, however, likely to prompt prosecutors to routinely convey plea offers in writing or place those offers on the record. Judges, too, will likely insist that the court record reflect that a plea offer was made and that the client was aware of the offer and knowingly rejected it.

But there is one area of institutionalized substandard practice in which the Padilla, Lafler, and Frye trilogy may have a salutary effect. As noted in reports issued by NACDL,7 and as discussed in a prior Inside NACDL column,8 the nation’s indigent defense system is plagued by the rampant practice of entering guilty pleas at arraignment.9 The prevalence of “meet and plead” practices, in which lawyers counsel clients to plead guilty, with almost no information about the case, must be re-examined in light of these decisions. In the wake of Padilla, last year NACDL co-sponsored a conference on Padilla and the Future of the Defense Function.10In an article written for the journal that published the conference report and related scholarship, Professor Steven Zeidman noted that policing policies and heavy caseloads have resulted in a system in which “[t]he end result is a premium on, and pressure for, guilty plea dispositions at the first possible moment. …”11 

Professor Zeidman postulated that “Padilla by its own terms should also end the infamous ‘meet ‘em, greet ‘em, and plead ‘em’ practice that has dominated so much of criminal justice, and which is the most visible and prevalent manifestation of the assembly line nature of the system.”12 The professor theorized that Padilla’s constitutional mandate to provide comprehensive immigration advice might well accomplish what decades of ethical standards had not achieved — an end to practices in which lawyers advise clients to plead guilty without first conducting a full factual and legal investigation.

If Padilla was a step in that direction, it may well be that Frye, and Lafler, in particular, are a firm jolt further down that path. Criminal defense lawyers now have unambiguous Supreme Court guidance that counseling a client to plead guilty without adequate analysis is potentially ineffective representation. Lawyers can and should cite this authority to stand their ground and insist that any plea offer to dispose of a case must be left open to provide the lawyers adequate opportunity to do their job thoroughly and effectively — as the Constitution requires. Prosecutors and judges as well must cease the practice of offering and demanding an immediate plea. Those practices are the root cause of systemically deficient representation. In the wake of Padilla, Lafler and Frye, it is time for a thorough re-examination of how things operate, mindful of what Justice Anthony Kennedy called “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”13 While the constitutional responsibility for effective representation rests with the defense attorney, the reality described by Justice Kennedy imposes a moral and ethical duty on the prosecutorial and judicial actors in the criminal justice system to halt the coercive practices that undermine the capacity of defense lawyers to discharge that responsibility.


  1. Lafler v. Cooper, 566 U.S. ___, No. 10-209, 2012 WL 932019 (March 21, 2012).
  2. Missouri v. Frye, 566 U.S. ___, No. 10-444, 2012 WL 932020 (March 21, 2012).
  3. Lafler, slip. op. at 1 (Scalia, J., dissenting).
  4. ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), at 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(f), at 116 (3d ed. 1999); National Legal Aid and Defender Association, Performance Guidelines for Criminal Representation §. 6.2 (1995).
  5. The Court’s opinion accepts the facts regarding the advice provided by counsel as true. “In this case all parties agree the performance of respondent’s counsel was deficient when he advised respondent to reject the plea offer on the ground he could not be convicted at trial.” Lafler, slip op. at 4.
  6. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
  7. Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 31 (2009) (; Alisa Smith & Sean Maddan, Nat’l Ass’n of Crim. Def. Lawyers, Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts (2011) (
  8. Norman L. Reimer, After Half a Century, Gideon’s Promise Remains Elusive, The Champion, January/February 2012 at 7.
  9. Minor Crimes, Massive Waste at 31; Three-Minute Justice at 9, 15, 23; Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L.J. 1031 (2006).
  10. The conference was held at Cardozo School of Law in New York City on June 20-21, 2011. The principal co-convenors were NACDL, the National Legal Aid and Defender Association, and the Foundation for Criminal Justice. Co-sponsors included the ABA Criminal Justice Section’s Task Force on Comprehensive Representation, the Benjamin Cardozo School of Law at Yeshiva University, Fordham Law School’s Stein Center for Law and Ethics, and the Fordham Urban Law Journal. 
  11. Padilla v. Kentucky: Sound and Fury or Transformative Impact, Steven Zeidman, 39 Fordham Urb. L.J. 207 (2011).
  12. Id. at 222.
  13. Lafler, slip. op. at 11

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