Lafler v. Cooper (10-209)

argument 10-209

Lafler v. Cooper

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the central legal issue in Lafler v. Cooper regarding ineffective assistance of counsel?

John G. Roberts 0:03

We'll hear argument first this morning in Case 10-209, Laffler v. Cooper. Mr. Bursch.

Andrew S. Bursch 0:09

Thank you, Mr. Chief Justice, and may it please the Court. There are three points that I would like to press this morning regarding deficient plea advice. First, this Court has consistently limited the effective assistance right to ensuring the reliability of the proceedings where a defendant is adjudicated guilty and sentenced. Mere outcome is not the Strickland prejudice standard. Second, when asserting an ineffective assistance claim.

Anthony M. Kennedy 0:34

Could I stop you on the first? You say mere outcome is not enough, reliability of the proceedings. How does that fit with Kimmelman, where we said the rights to effective assistance does attach to suppression hearings, obviously, where evidence would not make the proceedings more reliable?

Andrew S. Bursch 0:53

Justice Kagan, even in Kimmelman, the Court remanded back to the lower courts to determine whether there was prejudice. And the obvious implication was that if there was no prejudice on the fairness of the adjudicatory proceeding itself, there would be no Sixth Amendment violation. The second point that I wanted to press this morning was that when asserting an ineffective assistance claim, a defendant must show deprivation of a substantive or procedural right. And this Court has already held that a defendant has no right to a plea bargain. Third, every possible remedy for deficient plea advice creates intractable problems, demonstrating the right — So

Elena Kagan 1:31

isn't there a right to make a critical decision on whether to accept or reject a plea bargain? One solver. There's no right to demand one or to keep it. But isn't there a right to make that kind of critical decision?

Andrew S. Bursch 1:48

Justice Sotomayor, the not guilty plea is an assertion of the defendant's constitutional rights. It's invoking the right to trial that the Sixth Amendment contemplates. And so this situation is really more like Fretwell. It's not a decision that you have, for example, whether to have a jury or not to have a jury or whether to have this attorney appointed for your counsel or not. Because in each of those cases, you have an underlying substantive or procedural constitutional right, and you have no right to a plea. And so this fork in the road is really an illusory one because you have no right to choose the other side of the fork.

Unknown 2:21

Suppose this were a death case. and roughly the same facts, failure to communicate. And that leads me to one other question. Based on your opening remarks, we can think about adjudications having a constitutional violation, injury, and remedy. Are you saying that there was a violation in the abstract here but no injury? Or was there a violation and an injury but just no remedy?

Andrew S. Bursch 2:51

So if you

Unknown 2:52

could do all of that, including the death penalty, I will.

Andrew S. Bursch 2:55

Yes, I'm saying that there's no violation because in order to prove a Sixth Amendment violation, you have to demonstrate unreliability of the adjudicatory process. I'm also saying that there's no reasonable remedy, and I'll talk about that in a minute. With respect to the death penalty in particular, I would refer this Court right back to the Freckwell decision because there, too, defendant and his counsel had an opportunity to raise a Collins objection that would have changed the sentence to avoid the death penalty and in that case. Collins obviously was overruled before habeas process, and this Court held that the defendant could not use the vehicle of an ineffective assistance claim to regain that lost opportunity because he had no constitutional right in it.

Andrew S. Bursch 3:36

And so really the remedy — I'm sorry, the severity of the sentence doesn't enter the analysis once you've established that there has been no violation.

Unknown 3:44

JUSTICE GINSBERG. When you say no violation, you don't mean — that there was no ineffective assistance of counsel. I thought that was conceded, that there was ineffective assistance.

Andrew S. Bursch 3:55

MR. That's correct, Justice Ginsburg. We have conceded for purposes of argument that there was ineffective assistance. But Strickland is a two-part test, and even after you get past the deficiency prong, there's still the question of whether this casts some doubt on the reliability of the proceedings.