As an attorney who handles criminal matters, two Supreme Court decisions handed down on March 21, 2012, raise a number of issues to ponder. Full disclosure: I’ve not yet read the entire opinions, nor any dissents; merely the syllabi. Both cases dealt with ineffective assistance of counsel claims by defendants who were convicted at trial. In both cases, plea deals were presented by prosecutors. In Frye, defense counsel did not inform the defendant of the deals. In Cooper, defense counsel advised the defendant to pass on the deal, and go to trial. In both, the sentences rendered post trial were more severe than the offered deals.

Cooper exposes a problem with Crashing the Justice System as put forth in a recent New York Times article, and which I wrote about here. Perhaps defendants want to stand up for their rights and force the prosecution to make its case before a jury. Cooper potentially allows a defendant to go against that decision if the end result is worse than if the plea deal would have been taken, and blame defense counsel for ineffective assistance.

Whatever advice was provided by counsel in Cooper, whether it was sound or not, misses the issue to some degree. I’ve said this before, but it bears repeating: The decision to plea or not to plea is difficult enough, full of uncertainties which may await, all differing on the course of action decided upon. And if the decision is to move to trial, and a harsher sentence is imposed, which defendant will not claim ineffective assistance? And then, with what result? How is justice done in this situation? Is the imposed sentence substituted with the plea deal sentence as a matter of course? What about the possible chilling effect on advising clients to move to trial in the face of a plea deal. Will more criminal matters end in plea deals based on this decision? Many questions, few answers.

Frye does not present as significant of an issue to me, because it involved a situation where the plea deals were never even conveyed to the defendant. Quite a different situation from Cooper. If a plea deal is never conveyed, it can be proven, and the defendant can show the deal would have been taken if conveyed, that’s a clearer case inmy estimation. Still, its the last part; that the deal would have been taken if conveyed which can easily be abused.

Much to weigh here, especially for defense attorneys.