Tuesday, March 27, 2012


The U.S. Supreme Court has opened a Pandora's Box for plea negotiations in Tampa Bay and Pinellas Courts in two new opinions, which for the first time allow defendants to appeal miscommunication of previous plea offers which were not accepted in a timely manner. The decisions make Court watchers such as your favorite Clearwater Criminal Defense Attorney speculate how far the Court will go in allowing plea agreements to be litigated in the future, but should make the plea process more open, formal and visible. This is needed because as the Court notes in passing, "ours has become a system of pleas, not a system of trials,"which indeed is a very dangerous thing according to the L.A. Times in A system of Plea Bargains.

The Court held in Frye: "[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." When there has been a failure to do so, a prejudice standard will be applied. But showing actual prejudice in fact may prove difficult as Defendants will be required to prove the following three things: 
1."defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel"
2. "a reasonable probability the plea would have been entered without the prosecution canceling it," 
3. "the trial court refusing to accept it." 
If actual prejudice is established the remedy, is addressed in Lafler, can come in "at least one of two forms":
1. Resentencing where "the sole advantage a defendant would have received under the plea is a lesser sentence"; and where "resentencing alone willnot be full redress for the constitutional injury," 
2. the remedy "may be to require the prosecution to reoffer the plea proposal. 
3. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave theconviction undisturbed."The Court's reasoning is important. "Because ours 'is for the most part a system of pleas, not a system of trials,' it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. 'To a large extent ... horse trading [between prosecutor and defense counsel] determines who goes to jail andfor how long. That is what plea bargaining is. It is not some adjunct tothe criminal justice system; it is the criminal justice system.'"
 In support of its argument that plea negotiation is now the critical point ina criminal proceeding, the Court cites a law review article that notes"[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes."
These decisions raise many issues for Pinellas Criminal Defense Lawyers that will have to be resolved in practice and litigation. Among other things, prosecutors may change their practice of making formal plea offers or may be required by Judges in Tampa Bay, Pinellas and Clearwater to make all plea offers on the record in open court for transparency. Further, priors records of Defendants based on plea agreements may be challenged based on the facts and circumstances of the plea. All great news for Clearwater Defense Lawyers.
Let the Buyer beware of Plea Bargains in Open Court in Pinellas County.
Pinellas Courtroom with a Connoisseur Plea Bargaining
Norman Rockwell, The Connoisseur,  1962