By Ana Gutierrez
In an ordinary Sixth Amendment challenge to plea-bargaining, the defendant typically argues that he did not get a right to fair trial as a result of his deficient counsel. The problem that arises, and the question that was recently presented to the Tenth Circuit, in Williams v. Jones, No. 06-7103 (10th Cir., July 8, 2009), is what, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial? In Williams, the Tenth Circuit upheld the district court’s finding of ineffective assistance of counsel at plea bargaining but reversed the constitutionally imposed remedy and remanded the case for the district court to render a remedy that comes as close as possible to redressing the constitutional violation, and one that is not limited by State law.
In Williams, petitioner Michael Williams was arrested and charged with first-degree murder. Due to lack of sufficient evidence, on the eve of Mr. Williams’ trial, the assistant district attorney for the Eastern District of Oklahoma offered Mr. Williams a ten-year sentence in exchange for a guilty plea to second-degree murder. Mr. Williams wanted to accept the offer, however, his attorney, believing Mr. Williams was innocent, threatened to withdraw from the case if the offer was accepted. Thus, the case proceeded to trial where the jury found Mr. Williams guilty of first-degree murder and sentenced him to life imprisonment without parole. On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) found not only that Mr. Williams’ counsel was deficient, but also that Mr. Williams was prejudiced as a result of his deficient counsel for a lost opportunity to pursue the plea offer. To remedy the violation of Mr. Williams’ Sixth Amendment right to effective assistance of counsel, the OCCA modified his sentence to life imprisonment with the possibility of parole.
The Tenth Circuit granted a certificate of appealability only to address whether the OCCA imposed a constitutionally adequate remedy. In order to determine the adequacy of the imposed remedy, the Tenth Circuit first determined the scope of the constitutional violation. Following Supreme Court precedent in Strickland v. Washington, 466 U.S. 668 (1984), the Tenth Circuit applied the two-part Strickland Test to evaluate the scope of the constitutional violation. Pursuant to this test, in order to assert a valid claim of ineffective assistance of counsel, the defendant must prove not only that counsel was deficient, but also that the defendant suffered prejudice as a result of counsel’s ineffective performance.
The Tenth Circuit affirmed the OCCA’s finding of deficient performance on the factual basis. The Tenth Circuit determined not only that counsel’s performance fell below an objective standard of reasonableness, but also that Mr. Williams suffered prejudice because but for counsel’s ineffective assistance, Mr. Williams would have accepted the plea offer of ten years and second-degree murder. This point, however, is uncontested by the dissent as well as the parallel rulings in the opposing circuit and state court cases. It has been conceded that ineffective assistance of counsel during plea bargaining may cause such harm to a defendant’s rights in the adversarial process that he may clearly suffer prejudice. The critical issue was whether a defendant can demonstrate prejudice even after he receives a fair and impartial trial. This is where the circuits split.
In Williams, the Tenth Circuit determined that the fact that Mr. Williams subsequently received a fair trial (with a much greater sentence) simply does not vitiate the prejudice from the constitutional violation. In so holding, the Tenth Circuit reasoned that effective assistance is guaranteed for the whole plea process, not just in connection with accepting (but not rejecting) a plea agreement. The Tenth Circuit cites to the Supreme Court in arguing that the plea bargaining process is a critical stage of criminal prosecution; accordingly, the Sixth Amendment applies to representation during the plea process and ineffective counsel during plea bargaining can prejudice the defendant by rendering fundamentally unfair results.
The Tenth and Seventh Circuit are split on this point of law. In accordance with the dissent in Williams, in United States v. Springs, 988 F.2d 746 (1993), the Seventh Circuit held that even if a defendant’s counsel was deficient and such performance may have rendered prejudice against the defendant, a subsequent fair trial nullifies a claim under the Sixth Amendment. Strictly construing the Constitution and the Supreme Court’s rulings, the Seventh Circuit emphasized that “[t]he guarantee of counsel in the [S]ixth [A]mendment is designed to promote fair trials leading to accurate determinations of guilt or innocence.” The dissent in Williams and the Seventh Circuit ground their argument on the point that defendants have no substantive or procedural rights to plea bargaining; they have no legal entitlement to the plea process as a matter of law. As a result, where a fair trial is rendered, a Sixth Amendment claim challenging plea bargaining is vitiated.
The second substantial inquiry that emanates from the Tenth Circuit’s discussion regarding a Sixth Amendment challenge to a guilty plea is the appropriate constitutional remedy. The Tenth Circuit found that the imposed remedy (life imprisonment with the possibility of parole) was not an appropriate constitutional remedy. The Tenth Circuit remanded the case to the district court with orders that the remedy imposed should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests, nor be bound by state law. On remand, the OCCA is faced with the challenge of balancing valid and competing claims between the State’s efficiency interest in upholding a modified sentencing from a fair trial and the defendant’s interest in reinstating the plea offer to obtain justice where he has been prejudiced. Does the court reinstate the original plea offer? Does it order a new trial? Does it render a modified sentence? This is an arduous task. As the Tenth Circuit concedes, “[i]n the end, no remedy may restore completely the parties’ original positions.”