The End of Joint Venture for Possessory Firearm Offenses: Commonwealth v. Humphries Exposes Theory Flaws

Massachusetts has developed a rather unusual approach to accomplice liability when the Commonwealth's theory of the case is one of joint venture.  Having torn down the distinction between principal and participant, joint venture allows the Commonwealth to convict an individual involved - even if tangentially - in a criminal act regardless of whether there was an agreement to commit a crime and regardless of whether the offensive acts exceeded the realm of reasonable foreseeability.

The current incarnation of the theory is that because all "joint venturers" carry the same intent, all are charged equally regardless of individual action.  Because it is a theory and not an actual offense, it need not be charged in an indictment.  For clarity, in the Commonwealth of Massachusetts, whether an individual commits the actus reus of a criminal offense or s/he does not, so long as s/he aided and abetted the offense -even if only verbally - the common intent to commit the crime ultimately alleged is shared.  Now, to those who have actually thought about this it sounds a lot like conspiracy which, unlike joint venture, requires the Commonwealth to establish a relationship, agreement to commit a crime, and complicity only to the limit of the reasonable foreseeability of that agreement. Pinkerton v. United States, 328 U.S. 640 (1946).

The agreement within the conspiracy is the essence of the crime - the intent to participate in the offense and all that might flow from it - establishes the mens rea of the crimes that eventually occur.  Yet, with no agreement required, the theory of joint venture liability is fashioned entirely out of air.  The most recent case on this theory of liability exemplifies why its flaws; through these flaws it fails to comport with due process of law.  Although the outcome of the case appears to favor the defendant, it does nothing to advance criminal justice.  Even if accomplice liability is appropriately considered, the current state of joint venture theory is a civil concept and has no place in criminal law.

In Commonwealth v. Humphries, SJC-11237 (July 12, 2013), on both possessory and non-possessory crimes, the defendant was charged as a joint venturer.  The court addressed only the offense of unlawful weapon possession in its joint venture analysis.  Essentially, it reviewed the state of the law that an individual so charged could demonstrate by some evidence that s/he had a license or firearm identification card and shift the burden to the Commonwealth to disprove the defense of license.  The information regarding a license is uniquely known to the defendant in such cases.  Massachusetts has no statewide firearm license registry; the law leaves licensing to the individual police chiefs thus the work for the Commonwealth to prove this element is overwhelming and it need not do so unless the defense of license is raised before trial.  This post says nothing about the constitutionality of that framework both because the Second Amendment has been held to be an individual right and is applicable to the states and because the Commonwealth bears the burden of proof beyond a reasonable doubt of every element of the offense but routinely obtains a jury instruction informing the jury that it may presume the absence of license, merely that this is the state of the law as it stands.

However, when a joint venturer is involved, particularly one not charged with the defendant, that third party may or may not have had lawful possession of the firearm involved in the offense.  Due to the difficulty for the defendant to know this, the burden is not first upon him or her to assert license as a defense; rather the Commonwealth must now prove absence of lawful possession for the firearm of the third party (as to the defendant, the burden-shifting paradigm is the same).  The defendant in such cases need only assert the defense of license prior to trial to trigger this new element of the offense upon the Commonwealth.

Unpacking that a bit, the law now goes something like this: on a possessory offense, where the Commonwealth proceeds under a joint venture theory, if the defendant raises an affirmative defense as to a third party (the presumed joint venturer, whether charged or not), then the Commonwealth must disprove that defense in order to gain conviction.  This necessarily will cause prejudicial joinder in every single possessory case for firearms and motions to sever must be allowed in order to comply with Art. 12's mandate that every subject has the right to produce all proofs that may be favorable to him (or her).  The problem then lies in who is tried first because information gleaned from one trial (i.e. the defendant does not assert an affirmative defense of license, merely raises the question of license of the third party) can be used to convict the second one to face trial (because there was no evidence produced on the defense of license by the first defendant to face trial).  Joint venture does not require any kind of an agreement between the two parties that one member would carry a firearm and it does not recognize the reasonable foreseeability concept (also straight out of civil liability) that an individual who participates in an offense would anticipate consequences outside the immediate commission of the crime.

Query whether this triggers a de facto Wharton's Rule type of dismissal when only one person is charged.  Wharton's Rule - technically not required under Massachusetts law but almost always applied - provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as necessarily to require the participation of two persons for its commission.  Classic Wharton's Rule offenses include adultery, incest, bigamy, and dueling and all are crimes characterized by an agreement to complete the substantive offense.  

In Commonwealth v. Cantres, 405 Mass. 238, 242 (1989), the court declined to make a general determination of the rule in Massachusetts and stated, possibly in dicta, that it would not apply to conspiracy to distribute controlled substances.  That limitation is questionable after Humphries when, for example, the charge is distribution of under one ounce of marijuana or if there is a defense of a medical prescription for one or more charged – at least with the possession with intent to distribute – when more than one person is charged.  That is, firearms and small amounts of marijuana have moved from the category of presumptive contraband to mere evidence where the evidence may be lawful or excusable but that knowledge is in the mind only of one participant in the offense and as unknowable to any other participant as it is to the Commonwealth.

Taking that into firearms offenses, the Commonwealth has been known to prove complicity in an ultimately charged offense by demonstrating that an individual was aware of the presence of a firearm.  But if the firearm is possessed legally - and there is no way for the individual to know that - and there is no agreement to commit an offense, but an offense ultimately occurs -what culpability does the unarmed individual have?  Or, if several people gather together, some with lawful, licensed weapons and others without and one of the group commits an offense, what kind of liability accrues to those who indeed carried firearms, had no intention to use them save lawfully, and yet were present when a group member committed a criminal act? 

Wharton's Rule applies solely and exclusively to conspiracies and not to joint venture although given the construction of joint venture liability, it is unclear why.  Perhaps it is that the SJC has stated that joint venture liability finds its roots in accessorial or accomplice liability.  Yet, conspiracy or vicarious liability rests in agency law.  This is part of the analytical problem in all of the joint venture theory cases where the Commonwealth is not obliged to indict an additional element in order to net all alleged participants under the actions of the principal. 

Accomplice liability must be, and traditionally has been, a specific offense crime even if the underlying offense may be a general intent crime. Yet this is not the jury instruction given in a charge where the Commonwealth proceeds on joint venture liability.  The jury only must decide whether there has been proof beyond a reasonable doubt for the intent requirement of the underlying offense which, in this era of minimizing mens rea, is almost always a general intent to commit the crime alleged.  The tragedy of joint venture is that the government need never prove that the defendant agreed to commit the ultimate offense charged; merely that the defendant aided and abetted the ultimate offense in some way (or often, that the individual was present at the time the act occurred) regardless of any specific intent to engage in the act charged.

Conspiracy is a different offense altogether.  It has its roots in agency law with the idea that, due to the agreement itself, co-conspirators speak with one voice. United States v. Gooding, 12 Wheat 460, 469 (1827); Lutwak v. United States, 344 U.S. 604, 617 (1953).  This form of liability is vicarious: if two people agree to commit an offense and one person actually accomplishes it, the person who agrees is equally liable through the unity established with the agreement to act.  Thus, the government must prove the specific intent to conspire, the agreement to commit a crime, the fact that the crime alleged flows with reasonable foreseeability from that original agreement and that the conspirator who acted acted with the proper intent to commit the alleged offense.  The tragedy of conspiracy is the broad interpretation of reasonable foreseeability.

Accomplice liability and vicarious liability are NOT the same thing.  Accomplice liability requires both the mental state to commit the crime involved, the participation in some way with the offense AND the knowledge of the principal that the accomplice is there, ready willing and able to help.  It is satisfied only if the accomplice aids or encourages the principal with the intent to promote the crime.  Vicarious (or conspiratorial) liability presumes that all think and act as one; however even actual conspiracy cases have forced courts to shift away from full liability when they infringe upon the demands of due process.  See, i.e. United States v. Hansen, 256 F.Supp.2d 65, 67 n.3 (2003)(citing circuit court decisions questioning vicarious liability for offenses in which the defendant has only a slight connection despite the initial agreement to conspire.  The case also states at 67, "'Foreseeability' is the language of negligence law.  It is not a usual criminal law concept and surely not a concept that puts meaningful due process limits on criminal liability.")

While Massachusetts punishes joint venturers under the accomplice theory, it does not concomitantly increase the mens rea requirement of the Commonwealth's burden of proof.   And, it need not prove any kind of agreement as it would have to do in a conspiracy charge.  As disturbingly broad as conspiracy charges are, joint venture theory cases are often worse for defendants since the burden of proof is too low for an aider and abettor to be charged, convicted and possibly sentenced as the principal without any agreement with the principal to act.

Common law in Massachusetts recognized a principal in the first degree - the individual who with the required mens rea completed the act of the offense.  It also allowed for a principal in the second degree, which was essentially aiding and abetting.  The crime charged and the punishment varied appropriately.  That distinction no longer exists - the Commonwealth is free to charge all alleged participants as principals but present the theory of joint venture liability at trial to all of those charged.  The joint venturer's culpability depends on whether the principal commits the crime...even though there was no agreement to do so and even if no specific intent to perform the criminal acts committed by another exists in the minds of the co-venturers and even if the ultimate offense was not reasonably foreseeable to a casual participant in the events. Given that the Commonwealth can demonstrate accomplice liability from any indication of participation - regardless of agreement to do so - the casual comment could rise to the level of incitement.  This seems to fray the edges of due process of law.

Although there will be both puzzled faces and cheers from the recent Humphries decision, the case itself - along with all of the joint venture cases, especially since the landmark Zanetti case, should press counsel to question whether the theory comports with basic criminal law procedural requirements.  This is true in regard to the charge, the potential punishment, the idea that a co-venturer's statement, even if it would be considered "in furtherance of" a conspiratorial crime, could possibly be submitted against an accomplice without violating the prohibition against hearsay, the application of "reasonable foreseeability" where no initial agreement ever existed or need be proven, and the intent the Commonwealth must prove to obtain conviction which should be the specific intent to aid and abet combined with the principal's intent to commit the offense.  

Humphries is a case to celebrate so long as it is the beginning and not the end of the destruction of joint venture liability in criminal law.

Incarceration Without Representation

Colonial juries often acquitted criminal defendants to save them from harsh punishment.  Jury nullification was common long before the nascence of the Constitution.  As exemplified by the trial of John Peter Zenger, juries had emerged as a protection of individual liberty as against the power of the state.  Not only do criminal defendants have the right to an impartial jury (or, in the case  of Massachusetts, judgment of peers) but also members of society enjoy the right to participate as jurors. The very idea of jury trial is to assure the fairness of trials for the government, the accused and the community.

It would seem, then, that composition of the jury is equally important to the defendant, the prosecutor and the rest of society.  The Constitution, indeed, offers a variety of avenues to travel when we journey into jury trial terrain: Art. 3, Sec. 2 guarantee of trial by jury for criminal matters, the 6th Amendment's requirement of an impartial jury, the 14th Amendment guarantee to equal protection and to due process of law.  Further, each state constitution may provide new routes.

Along with a defendant's right to an impartial jury, due process of law and equal protection is the individual citizen's right to serve on a jury and society's right to have confidence in the fairness of trial verdicts (Art. 4, Sec. 2 and the 14th Amendment both guarantee the privileges and immunities of citizenship for all and the Preamble collectively acknowledges the unification of all Americans).  The pervasiveness and diversity of these rights encourages evaluation in regard to the manner in which the jury pool is drawn to how it may be dispersed if different courts exist in the county to appropriate voir dire to whether a juror is struck for cause to the propriety of  any peremptory challenges.

Perhaps due to the myriad choices, litigants argue and courts rule with tentative, fragile determinations.  Indeed, in the seminal case of Batson v. Kentucky, the petitioner brought his peremptory challenge issue under the 6th Amendment but it was decided under the 14th (to great consternation by both Justices Burger and Rehnquist).  The goal of the case was to stop the government from exercising peremptories in such a way as to effectively eliminate minority members of the community from serving as jurors.  Whose right is that?  The defendant's right to a fair cross section of the community (traditionally a 6th Amendment argument, an argument essentially rejected by the Court) or the juror's right to serve (an equal protection 14th Amendment right not to be excluded from the role of citizens)?  In the plurality, Justice Marshall's concurrence was most profound.  He declared that the only way to end racial discrimination in peremptory challenges is to eliminate them entirely.  Can we get to optimal juries by foregoing the peremptory challenge?

Massachusetts' fair cross section-type argument predates and is cited within Batson v. Kentucky, 476 U.S. 79 (1986). Justice Marshall pointed out its ineffectiveness in eradicating bias as it is too easy to deliver a plausible rationale that does not involve race for any peremptory challenge.  Reaffirming the rebuttable presumption of propriety for peremptory challenges, in Commonwealth v. Scott, the Supreme Judicial Court recently averred that because (a) the defendant did not dispute the "race neutral" proffer by the government, (b) the jury could fairly be considered to represent a fair cross section of the community as constructed, and (c) the judge determined there was no pattern of discrimination, the argument would fail.

The ruling reflects the Sisyphean nature of the peremptory challenge argument.  Justice Marshall even predicted that Batson would exacerbate the problem of bias as the "colorblind" era emerged.  In light of Justice Marshall's carefully considered concurrence, perhaps we can even embrace the current Court's reactionary fundamentalism suggesting that words mean only what they meant in the moment they were written even when they were written with an eye to the future, to growth and to revolutionary change.  The right of individual jurors to decide both the law and the facts, to nullify existing law, to demonstrate mercy was, indeed, familiar to the Framers.  It is this right that they so jealously protected for both the accused and for the greater community.

In our great democracy, there is a place for jury nullification and for permitting the jury to limit the penalties ascribed by the legislature if the people - otherwise utterly divorced from the criminal justice system - find that their representatives have been too harsh.  We must take pains to acknowledge that we are incarcerating too many people, that we are disproportionately incarcerating young African American men, and too often with white juries, that we tend to punish the poor by ensuring their poverty with convictions, and too often with wealthier juries, that the current economic climate distances the poor from the middle and upper classes in increasingly uncomfortable ways, that the language of the Magna Carta regarding judgment of peers was exactly that - nobles judging nobles - that it is time to address both the conscious and unconscious bias in the jury selection process when we review under fair cross section, equal protection, due process and (in Massachusetts) "judgment of peers".  It is time to reconsider representational juries and proportionality in the venire and greater voir dire to eliminate jurors for cause.  And, in exchange we can eliminate peremptory challenges in order to effect fairer trials.

Hardly radical, John Adams himself declared that jurors should reach their verdict as of conscience even if it is in opposition to the direction of the court.  He had great company in this belief.  But, how do we get this jury of conscience, this jury of independence, this jury so willing to stand up for justice that they are willing to sit down to deliberate?   Is it possible that what the Constitution intends and what fairness dictates is really a jury that reflects the community by age, by politics, by race, by ethnicity, by religion, by gender and by socioeconomic status?  Perhaps in places like Massachusetts that provides for judgment by peers the requirement extends to oversample the community as to the defendant's peers, whoever they may be?  If the jury trial was so important that it is included in not only the body of the Constitution, but again in an amendment passed soon after, weren't they trying to tell us something?

As political parties gallop into the homestretch of a tight and often bewildering campaign season, they have so finely tuned their get-out-the-vote effort that they have developed microtargeting algorithms including everything from party affiliation to installation of home swimming pools to magazine subscriptions in order to identify and reach out to potential votes.  Initially, all elections for federal officials was through an indirect vote; for president this is still true.  The drafters of the Constitution, however, directly involved the citizenry in perhaps its most important role, as jurors in judgment of a peer and as a check on all three branches of government.

Given that jury service is therefore more important than the vote, has the time come to use this technology and establish better and more diverse jury pools, improve the jury questionnaire, increase voir dire process, strike only for cause (perhaps with proportionality restrictions), encourage deliberation and debate by allowing the jury to know the potential penalty and provide them with the opportunity to craft law?

Courts have created winding roads that meander without really leading anywhere.  The right of a jury trial is the defendant's.  The right of trial by jury is society's.  The intersection of these rights has the potential to transform democracy in new and brilliant ways by reclaiming what the Framers intended - people freely participating in their own government. 

As we prepare to exercise our vote next week, we might take just a moment to remember that all of us have a duty of citizenry that is not dependent upon advertisements and slogans; it is not dependent on the party in power or the stagnation of our elected officials.  Our duty of citizenry can never be more effectively demonstrated than in jury trials.  To ensure that government of the people, by the people, for the people shall not perish from this Earth, we must seek engagement in all aspects of the configuration of the jury for criminal trials.   If taxation without representation roused our forbears, incarceration without representation should be an alarm clock for us.


 

Oh, Pleas!

The plea bargain has become a mainstay of America's criminal justice system. See, The Charge posted on 5/24/12.  However, in order to advise a client on the benefits and drawbacks of a change of plea, counsel must know and explain the law surrounding the charge, the potential collateral consequences, and the government's best case.  Once aware of the entire landscape, it is up to the client alone to determine his or her own fate: to go to trial or to change a plea.  That decision is only valid if based upon knowledge, free will and an understanding of the criminal process.
 
As we acclimated to plea changes, we forgot that the right of a jury trial is endemic to our culture, mentioned in the Magna Carta in 1215, and referred to twice in our own Constitution: “[t]he Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…” U.S. Const. Art. 3 Sec. 2, and the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…”  Waiving the right to be tried by a jury must be knowing, willing and voluntary, not a routine aspect of processing cases.   

Defendants plead guilty for a variety of reasons, among them are actual guilt, a fear that the consequences of trial would be far greater despite innocence, and bad advice.  If counsel has discouraged a change of plea, and such plea issues against the advice of counsel, it is not a violation of attorney-client privilege to make this information known; indeed that fact should be in the record.

But, that is not what happened in a recent Massachusetts case where a defendant pleaded guilty to offenses for which there was inadequate evidence of guilt.  The recited facts state that the defendant was removed from his home and yelled colorfully at the police; told to calm down or he would be arrested, the defendant continued to "disturb the peace" by essentially declaring that this was his house and that he did not like the police.  Ergo, they arrested him because, apparently, Massachusetts, the Cradle of Liberty, is now an authoritarian state wherein the government can remove a man from his home, encourage a crowd to gather, arrest the man for complaining in front of a group of people, and then have him convicted because "disturbing" a crowd assembled because of police actions and "mouthing off" are now criminal offenses.  The court tortures itself - and decent society - to uphold these convictions for disorderly conduct and resisting arrest - two classic charges claimed by people who, really, should not be permitted to carry guns to work. 

Shockingly, trial counsel let this happen, the government stood by and when the defendant moved to withdraw the ill counseled pleas, courts have upheld this travesty.  The opinion seems to contradict settled Supreme Court precedent, including the most recent cases on errant guilty pleas.  This may be a good time for the Supreme Judicial Court to act.

Defense attorneys must know the law.  They must know the elements of the statute with which their client is charged, they must research case law to understand what would constitute the offense and they must explain this information to their clients in a way the clients can understand.  Given that many involved in the criminal justice system have poor educational backgrounds, addiction and mental health issues, it is incumbent upon counsel to ensure that the client really does understand his rights, the facts and the law before advising on a plea.

Prosecutors must provide the facts upon which they intend to rely.  Massachusetts, and presumably other states, have broad "automatic discovery rules" requiring immediate and continuing discovery of a wide range of evidence.  Beyond automatic discovery, further information may be required before an attorney can reasonably counsel a plea change.  Indeed, principles of due process under the federal constitution require the production of material and relevant evidence to the defense.  

For example, when a Mr. Brady was tried for murder committed during a robbery, the government provided discovery to the defense.  Based on that evidence, Mr. Brady went to trial with a specific strategy: to take the stand, admit his part, explain that another committed the homicidal act, and beg for life in prison in lieu of capital punishment.  In Mr. Brady's trial, though, the jury disbelieved him and opted for death.  What the jury did not know was that the person Mr. Brady accused was also accused by the government...to whom he had confessed his guilt...which information the government failed to give to Mr. Brady or the jury.  When Mr. Brady obtained the confession post-conviction, he asked for a new trial which the Supreme Court ultimately provided for him.

But, Brady v. Maryland was not a singular case; in Mooney v. Holohan prosecutors tried the defendant on knowingly perjured testimony, in Napue v. Illinois, the government failed to correct blatant untruths uttered by their own witnesses, and in Kyles v. Whitley, the government failed to turn over specifically requested police reports and statements indicating that another man had committed the crimes for which Mr. Kyles was serving time.  These were not mistakes; they were intentional deceptions.  Even if the initial failure to disclose was inadvertent, the fight to the Supreme Court indicates a desire to circumvent due process.  In Mr. Brady's case, had he not obtained the evidence, the good people of Maryland would have murdered him-not in one of those heartbreaking cases of misidentification, he was not misidentified - but because a reasonable jury would have sentenced him to life in prison as he requested had they known the evidence kept secret by the government.  In all of these cases, had the defendant chosen to accept a guilty plea instead of taking his case to trial, the fraud would have gone undetected.

In addition to the general law and the government's best case, defense counsel has an additional burden to know, understand and explain interconnected collateral consequences prior to advising on a change of plea.  What other factors must be considered before a plea is knowing, willing and voluntary?  For starters,without apology for the bullet points:

• whether the conviction will affect immigration status; 
• if the defendant is from a different culture, does s/he understand the American criminal process;
• if the defendant does not speak English as a first language, has the native language interpreter sufficiently translated the lawyer's explanations and the client's concerns;
• if the defendant has ever suffered from mental illness or mental infirmity of any kind, does s/he genuinely understand all that is happening within the criminal justice system;
• whether the conviction will hamper or preclude a defendant from legally purchasing or possessing a firearm, an individual right under the Second and Fourteenth Amendments, in the future;
• whether the conviction will terminate a public housing lease;
• whether the conviction will suspend a driver's license;
• whether the conviction will initiate the revocation or suspension of a professional license;
• whether the current conviction will serve to enhance any later convictions.

While the vast majority of criminal cases resolve by means of a guilty plea, it is unlikely that all, or even most of them comport with these requirements to ensure that the guilty verdict reflects constitutional safeguards.   Due to the unreliability of plea bargaining, at least one person has suggested that plea process be reformed to act as something less than guilt. See, Gregory M. Gilchrist, Plea Bargains, Convictions and Legitimacy, 48 AMCRLR 143 (Winter, 2011).  But, even if we retain the very troublesome system as it is, we can improve the practice.

In Massachusetts, prosecutors are obliged to affirm, under the penalty of perjury, that they have satisfied the automatic discovery requirements; counsel must ensure that the certificate of compliance, as outlined in M.R.Cr.P. 14(a)(3), is filed before any plea negotiations occur.  Counsel can and should correspond with the client about each and every element of the offense and the government's anticipated evidence to prove each element.  Counsel can and should correspond with the prosecutor regarding every offer for a change of plea, obtain everything in writing, and provide that correspondence to the client.  Counsel must review potential collateral consequences including not just immigration matters, but all known potential problems resulting from a guilty verdict with the client.  Even these simple steps can improve confidence in guilty pleas.  Through these actions, it may become clear that a guilty plea is not the best alternative for the client and trial or dismissal may be appropriate.

When lawyers are "sworn in to the bar", what we swear or affirm is to uphold the constitutions of the nation and our state.  We, defense attorneys, prosecutors, and judges, denigrate that promise whenever we gloss over the jury trial provisions specified in the Constitution.  It is not that every single case must go to trial; that would be optimal but, sadly, not practical. But, neither should pressure force cases through the system sacrificing justice for efficiency.  

The framework for government in this country mentions criminal jury trials twice and so it is reasonable to presume that this is an important - if not required - provision that deserves respect.  As we look to modifications for that time honored practice allowing for a declaration of justice by an impartial group assembled from the community, we must remember, as Chief Justice John Marshall implored, that it is a constitution we are expounding.  

As we talk about the obligations of government to its citizens and inhabitants, as we discuss individual liberties and guaranteed rights, we defense attorneys have a special obligation to establish as fair and transparent a process as possible when we anticipate a waiver of those precious rights.  Courts will not impose one and prosecutors will not suggest one; defense attorneys are the final buffer between a free society and a police state.  Therefore, it is incumbent upon defense attorneys - the only folks in the entire process mandated to be there - to develop and implement protective guidelines in relation to change of plea proceedings for our clients, our constitutions and our communities.

What Do We Lose When 95% of Criminal Convictions are the Result of Plea Bargains?

What Do We Lose When 95% of Criminal Convictions are the Result of Plea Bargains?  The takeaway from Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012).

In Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court of the United States ensured that the right to effective assistance of counsel covers the plea negotiation process.  In Frye, the defendant was never made aware of a plea offer more favorable to the one he ultimately accepted.  In Lafler, the defendant rejected a plea offer because his lawyer gave him woefully inaccurate advice.  The sentence after a guilty verdict at trial was significantly greater than the one offered in the change of plea.  In both cases, the defendant was permitted to get a good old fashioned do-over due to counsel’s errors.  I charge you to put aside opinion as to whether this is a “good” or “bad” approach and just consider the magnitude of the Court’s conclusion which is to affirm, without much concern, the current criminal justice system in which roughly 95% of defendants change their plea rather than face trial.  This is a tragedy for American democracy. 

Here is the proclamation from the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If we really care about having a living, breathing Constitution, then we need to start with the language and unpack the meaning.  The original concept was to ensure that all federal criminal prosecutions, and all federal defendants, be treated equally.  The Framers could not have imagined the Fourteenth Amendment and the net it cast to include the Sixth Amendment’s guarantee to state prosecutions as well.  But, it’s fair to say that even the small government guys would aspire for the rights inherent in the Constitution to apply to all.  I am guessing that even today’s Tea Party folks want the rights of the individual, when facing the broad power of the state, to pertain to everyone equally.  This may be evidenced by the lack of outrage by conservatives and the failure to accuse the Court of overreaching when it decided McDonald v. Chicago, 561 U.S. 3025 (2010), the first case applying the Second Amendment to the states through the Fourteenth Amendment.  So, putting aside the fact that there were only 21 federal crimes in 1791 when the nation ratified the Sixth Amendment, and not many more by the time the Fourteenth Amendment became the law of the land, the rights described in the Sixth Amendment do apply to all equally, in state and federal court.

That means that in all criminal prosecutions, the accused shall enjoy a speedy and public trial by an impartial jury.  And, yet only 5% of the accused actually do enjoy this fundamental right.  Everyone enjoys freedom of speech, religion and assembly, everyone enjoys the right to be free from unreasonable searches and seizures, everyone has the right to have a gun in his home, but only 5% of those accused of criminal offenses and who face a loss of life, liberty and the pursuit of happiness - by the hand of their own government - have the opportunity to the rights guaranteed to them by the Constitution.  The very same section of the document also ensures the right to the assistance of counsel.  The Court seemed to affirm that of the Sixth Amendment Rights, the assistance of counsel reigns supreme and the others can, therefore, fade away; but at what cost to democracy?

The elegance and simplicity of the Sixth Amendment establish checks on two of the three branches of government by the people who elect them.  Given the requirement of a fair cross section of the community and the prohibition of exclusion of identifiable classes of people from the jury pool, juries weigh not only credibility of witnesses but the fairness of the law.  We say that jurors are the judges of the facts, but they are more than that: they are the keepers of the trust societies build to enhance a sense of ordered liberty.  Query the bizarre current system where we need juries to keep us honest but we deprive jurors of their right and obligation to serve when we resort to pleading cases designed to be tried.

To prove a criminal offense, the Executive branch must have authority from the Legislative in the form of a criminal statute and then the Executive Branch must, within the parameters of fairness, prove every single element of that offense beyond a reasonable doubt to a group of citizens who must agree unanimously on their verdict.  That difficult bar was, and is, intentional.  The tremendous power of the state to deprive us of our liberty, perhaps the most astounding of the freedoms we enjoy, is so profound that the system is designed to wield that power judiciously with the assent of people from the community.

What does it say about us, as a society, that we no longer feel we have the time or energy or money to engage in that magnificent exercise of democracy?   What does it mean when our highest court capitulates the jury trial and the role of the juror in criminal justice?  And, what does it say about who we are as a people drunk with our own lofty ideals of freedom, democracy, individualism, and honor if we can spend trillions on wars in foreign lands but we cannot fairly try all of our neighbors accused of criminal offenses?  Who are we if we can ask our fellow citizens to give their lives for everything we profess to believe when we are unwilling to ensure the protections of the Constitution by providing the means for trials by jury for all who stand accused?  With fewer trials, we have fewer experienced trial attorneys.  With fewer experienced trial attorneys, we will certainly have even fewer trials.

The ramifications of Frye and Lafler will, undoubtedly, be discussed, debated, and understood only through time.  Because the system relies on the efficacy of plea negotiations, it is unlikely that the government will stop making offers.  But, prosecutors will live with a new fear that if a plea is rejected, they will face the possibility that the defendant will move to vacate a trial verdict due to ineffective assistance of counsel solely based upon the plea offer.  Because the government cannot, at any time, interfere with the attorney-client relationship, there is no mechanism in place to pre-empt the situation in Lafler; for the identical reason, the government cannot directly present the defendant with the plea offer and so the government cannot prevent the situation in Frye.  Perhaps this will lead to more careful work on the part of defense attorneys, but it is more likely that it will lead to even more pleas for fear of making a mistake.  And, hence, more mistakenly pleaded cases.  The end result is that there will be fewer eyes on the criminal justice system to ensure its fairness.  That alone is a tragedy of epic proportions.

Some reports stated that in Frye and Lafler the Court extended greater rights to defendants in plea negotiations.  I challenge that idea.  Defendants’ rights have not changed; the Constitution ensures that every single person accused of a crime will, with the assistance of counsel, face an impartial jury in a public trial within a reasonable period of time.  The cases were no more about defendants’ rights than they were about an impartial jury; the cases were about lawyers.  As the Court explained in both decisions, the notion of effective assistance of counsel has included pretrial, trial and post-conviction practice for a significant period of time (but we are still a little wobbly on the exact moment the right to counsel attaches) and it therefore definitively includes plea negotiations.    

With the vast number of cases resolved short of trial, there are fewer, not more, protections; the cases did not expand anyone’s fundamental rights.  Can a prosecutor offer a one-time-only plea, even before all of the discovery has been produced?  What about on the day of trial?  Does everything – or anything – need to be in writing?   What must a defense attorney do to ensure that s/he was “effective” in counseling a potential change of plea?   Must there be a recording of the discussion with the client about any plea offers?  Will a case in which a similar circumstance to either Frye or Lafler always hinge on the action or inaction of the attorney, or will judges, influenced to some degree on the cost of trial and the backlog of cases, aver that they would not have accepted the negotiated, but inappropriately rejected, plea and thereby not find ineffective assistance?

Although these cases, with a disconcerting nonchalance, willingly accept a lack of democracy in jury trials where the Framers clearly intended extraordinary democracy and do not lament criminal justice shrouded in secret negotiations, they raise more questions than they answer about what defense attorneys, prosecutors and courts must do to ensure fairness in the unfair process of plea bargains.