Doug Berman, at his highly regarding sentencing blog, recently wrote favorably about an unpublished Sixth Circuit decision regarding prejudice under the Lafler* and Frye** decisions. See here. In that case, the Sixth Circuit wrote:
[W]e are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.
SAWAF v. UNITED STATES OF AMERICA, No. 13-5620 (6th Cir., June 30, 2014).
More than a year ago, in a guest post on this blog, Elaine Mittleman, an expert on federal post-conviction motions, flagged this problem in a piece entitled Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post. I followed up with the issuance of a standing order in my cases partially in response to Elaine’s thoughtful commentary. See here. Elaine deserves great credit for seeing this problem, and proposing a practical way of addressing it. I feel privileged to have given her a slightly wider audience for her prescient views. Thanks Elaine.
*LAFLER v. COOPER, No. 10–209 (2012) (Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed).
**MISSOURI v. FRYE, No. 10–444 (2012) (The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.).