LAFLER v. COOPER

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–209

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BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

on writ of certiorari to the united states court of appeals for the sixth circuit

[March 21, 2012]

Justice Kennedy delivered the opinion of the Court.

In this case, as in Missouri v. Frye, ante, p. ___, also decided today, a criminal defendant seeks a remedy when inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome. In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the client but, on advice of counsel, was rejected. In Frye there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.

I

On the evening of March 25, 2003, respondent pointed a gun toward Kali Mundy’s head and fired. From the record, it is unclear why respondent did this, and at trial it was suggested that he might have acted either in self-defense or in defense of another person. In any event the shot missed and Mundy fled. Respondent followed in pursuit, firing repeatedly. Mundy was shot in her buttock, hip, and abdomen but survived the assault.

Respondent was charged under Michigan law with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions, the prosecution offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months for the other two, in exchange for a guilty plea. In a communication with the court respondent admitted guilt and expressed a willingness to accept the offer. Respondent, however, later rejected the offer on both occasions, allegedly after his attorney convinced him that the prosecution would be unable to establish his intent to murder Mundy because she had been shot below the waist. On the first day of trial the prosecution offered a significantly less favorable plea deal, which respondent again rejected. After trial, respondent was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months’ imprisonment.

In a so-called Ginther hearing before the state trial court, see People v. Ginther, 390 Mich. 436, 212 N. W. 2d 922 (1973), respondent argued his attorney’s advice to reject the plea constituted ineffective assistance. The trial judge rejected the claim, and the Michigan Court of Appeals affirmed. People v. Cooper, No. 250583, 2005 WL 599740 (Mar. 15, 2005) (per curiam), App. to Pet. for Cert. 44a. The Michigan Court of Appeals rejected the claim of ineffective assistance of counsel on the ground that respondent knowingly and intelligently rejected two plea offers and chose to go to trial. The Michigan Supreme Court denied respondent’s application for leave to file an appeal. People v. Cooper, 474 Mich. 905, 705 N. W. 2d 118 (2005) (table).

Respondent then filed a petition for federal habeas relief under 28 U. S. C. §2254, renewing his ineffective-assistance-of-counsel claim. After finding, as required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that the Michigan Court of Appeals had unreasonably applied the constitutional standards for effective assistance of counsel laid out in Strickland v. Washington, 466 U. S. 668 (1984) , and Hill v. Lockhart, 474 U. S. 52 (1985) , the District Court granted a conditional writ. Cooper v. Lafler, No. 06–11068, 2009 WL 817712, *10 (ED Mich., Mar. 26, 2009), App. to Pet. for Cert. 41a–42a. To remedy the violation, the District Court ordered “specific performance of [respondent’s] original plea agreement, for a minimum sentence in the range of fifty-one to eighty-five months.” Id., at *9, App. to Pet. for Cert. 41a.

The United States Court of Appeals for the Sixth Circuit affirmed, 376 Fed. Appx. 563 (2010), finding “[e]ven full deference under AEDPA cannot salvage the state court’s decision,” id., at 569. Applying Strickland, the Court of Appeals found that respondent’s attorney had provided deficient performance by informing respondent of “an incorrect legal rule,” 376 Fed. Appx., at 570–571, and that respondent suffered prejudice because he “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him.” Id., at 573. This Court granted certiorari. 562 U. S. ___ (2011).

II A

Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Frye, ante, at 8; see also Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 16); Hill, supra, at 57. During plea negotiations defendants are “entitled to the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771 (1970) . In Hill, the Court held “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U. S., at 58. The performance prong of Strickland requires a defendant to show “ ‘that counsel’s representation fell below an objective standard of reasonableness.’ ” 474 U. S., at 57 (quoting Strickland, 466 U. S., at 688). In this case all parties agree the performance of respondent’s counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial. In light of this concession, it is unnecessary for this Court to explore the issue.

The question for this Court is how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.

B

To establish Strickland prejudice a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. See Frye, ante, at 12 (noting that Strickland’s inquiry, as applied to advice with respect to plea bargains, turns on “whether ‘the result of the proceeding would have been different’ ” (quoting Strickland, supra, at 694)); see also Hill, 474 U. S., at 59 (“The . . . ‘prejudice,’ requirement . . . focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”). In Hill, when evaluating the petitioner’s claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Ibid.

In contrast to Hill, here the ineffective advice led not to an offer’s acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), 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 judgment and sentence that in fact were imposed. Here, the Court of Appeals for the Sixth Circuit agreed with that test for Strickland prejudice in the context of a rejected plea bargain. This is consistent with the test adopted and applied by other appellate courts without demonstrated difficulties or systemic disruptions. See 376 Fed. Appx., at 571–573; see also, e.g., United States v. Rodriguez Rodriguez, 929 F. 2d 747, 753, n. 1 (CA1 1991) (per curiam); United States v. Gordon, 156 F. 3d 376, 380–381 (CA2 1998) (per curiam); United States v. Day, 969 F. 2d 39, 43–45 (CA3 1992); Beckham v. Wainwright, 639 F. 2d 262, 267 (CA5 1981); Julian v. Bartley, 495 F. 3d 487, 498–500 (CA7 2007); Wanatee v. Ault, 259 F. 3d 700, 703–704 (CA8 2001); Nunes v. Mueller, 350 F. 3d 1045, 1052–1053 (CA9 2003); Williams v. Jones, 571 F. 3d 1086, 1094–1095 (CA10 2009) (per curiam); United States v. Gaviria, 116 F. 3d 1498, 1512–1514 (CADC 1997) (per curiam).

Petitioner and the Solicitor General propose a different, far more narrow, view of the Sixth Amendment. They contend there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair trial. The three reasons petitioner and the Solicitor General offer for their approach are unpersuasive.

First, petitioner and the Solicitor General claim that the sole purpose of the Sixth Amendment is to protect the right to a fair trial. Errors before trial, they argue, are not cognizable under the Sixth Amendment unless they affect the fairness of the trial itself. See Brief for Petitioner 12–21; Brief for United States as Amicus Curiae 10–12. The Sixth Amendment, however, is not so narrow in its reach. Cf. Frye, ante, at 11 (holding that a defendant can show prejudice under Strickland even absent a showing that the deficient performance precluded him from going to trial). The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though “counsel’s absence [in these stages] may derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U. S. 218, 226 (1967) . The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel’s advice. This is consistent, too, with the rule that defendants have a right to effective assistance of counsel on appeal, even though that cannot in any way be characterized as part of the trial. See, e.g., Halbert v. Michigan, 545 U. S. 605 (2005) ; Evitts v. Lucey, 469 U. S. 387 (1985) . The precedents also establish that there exists a right to counsel during sentencing in both noncapital, see Glover v. United States, 531 U. S. 198 –204 (2001); Mempa v. Rhay, 389 U. S. 128 (1967) , and capital cases, see Wiggins v. Smith, 539 U. S. 510, 538 (2003) . Even though sentencing does not concern the defendant’s guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because “any amount of [additional] jail time has Sixth Amendment significance.” Glover, supra, at 203.

The Court, moreover, has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue. Thus, in Vasquez v. Hillery, 474 U. S. 254 (1986) , the deliberate exclusion of all African-Americans from a grand jury was prejudicial because a defendant may have been tried on charges that would not have been brought at all by a properly constituted grand jury. Id., at 263; see Ballard v. United States, 329 U. S. 187, 195 (1946) (dismissing an indictment returned by a grand jury from which women were excluded); see also Stirone v. United States, 361 U. S. 212 –219 (1960) (reversing a defendant’s conviction because the jury may have based its verdict on acts not charged in the indictment). By contrast, in United States v. Mechanik, 475 U. S. 66 (1986) , the complained-of error was a violation of a grand jury rule meant to ensure probable cause existed to believe a defendant was guilty. A subsequent trial, resulting in a verdict of guilt, cured this error. See id., at 72–73.

In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

Second, petitioner claims this Court refined Strickland’s prejudice analysis in Fretwell to add an additional requirement that the defendant show that ineffective assistance of counsel led to his being denied a substantive or procedural right. Brief for Petitioner 12–13. The Court has rejected the argument that Fretwell modified Strickland before and does so again now. See Williams v. Taylor, 529 U. S. 362, 391 (2000) (“The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993) , modified or in some way supplanted the rule set down in Strickland”); see also Glover, supra, at 203 (“The Court explained last Term [in Williams] that our holding in Lockhart does not supplant the Strickland analysis”).

Fretwell could not show Strickland prejudice resulting from his attorney’s failure to object to the use of a sentencing factor the Eighth Circuit had erroneously (and temporarily) found to be impermissible. Fretwell, 506 U. S., at 373. Because the objection upon which his ineffective-assistance-of-counsel claim was premised was meritless, Fretwell could not demonstrate an error entitling him to relief. The case presented the “unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry.” Ibid. (O’Connor, J., concurring). See also ibid. (recognizing “[t]he determinative question—whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different—remains unchanged” (internal quotation marks and citation omitted)). It is for this same reason a defendant cannot show prejudice based on counsel’s refusal to present perjured testimony, even if such testimony might have affected the outcome of the case. See Nix v. Whiteside, 475 U. S. 157, 175 (1986) (holding first that counsel’s refusal to present perjured testimony breached no professional duty and second that it cannot establish prejudice under Strickland).

Both Fretwell and Nix are instructive in that they demonstrate “there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate ‘prejudice,’ ” Williams, supra, at 391–392, because defendants would receive a windfall as a result of the application of an incorrect legal principle or a defense strategy outside the law. Here, however, the injured client seeks relief from counsel’s failure to meet a valid legal standard, not from counsel’s refusal to violate it. He maintains that, absent ineffective counsel, he would have accepted a plea offer for a sentence the prosecution evidently deemed consistent with the sound administration of criminal justice. The favorable sentence that eluded the defendant in the criminal proceeding appears to be the sentence he or others in his position would have received in the ordinary course, absent the failings of counsel. See Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1138 (2011) (“The expected post-trial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view full price as the norm and anything less a bargain”); see also Frye, ante, at 7–8. If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.

It is, of course, true that defendants have “no right to be offered a plea . . . nor a federal right that the judge accept it.” Frye, ante, at 12. In the circumstances here, that is beside the point. If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise. Much the same reasoning guides cases that find criminal defendants have a right to effective assistance of counsel in direct appeals even though the Constitution does not require States to provide a system of appellate review at all. See Evitts, 469 U. S. 387 ; see also Douglas v. California, 372 U. S. 353 (1963) . As in those cases, “[w]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.” Evitts, supra, at 401.

Third, petitioner seeks to preserve the conviction obtained by the State by arguing that the purpose of the Sixth Amendment is to ensure “the reliability of [a] conviction following trial.” Brief for Petitioner 13. This argument, too, fails to comprehend the full scope of the Sixth Amendment’s protections; and it is refuted by precedent. Strickland recognized “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U. S., at 686. The goal of a just result is not divorced from the reliability of a conviction, see United States v. Cronic, 466 U. S. 648, 658 (1984) ; but here the question is not the fairness or reliability of the trial but the fairness and regularity of the processes that preceded it, which caused the defendant to lose benefits he would have received in the ordinary course but for counsel’s ineffective assistance.

There are instances, furthermore, where a reliable trial does not foreclose relief when counsel has failed to assert rights that may have altered the outcome. In Kimmelman v. Morrison, 477 U. S. 365 (1986) , the Court held that an attorney’s failure to timely move to suppress evidence during trial could be grounds for federal habeas relief. The Court rejected the suggestion that the “failure to make a timely request for the exclusion of illegally seized evidence” could not be the basis for a Sixth Amendment violation because the evidence “is ‘typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.’ ” Id., at 379 (quoting Stone v. Powell, 428 U. S. 465, 490 (1976) ). “The constitutional rights of criminal defendants,” the Court observed, “are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.” 477 U. S., at 380. The same logic applies here. The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining.

In the end, petitioner’s three arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Frye, ante, at 7. As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences. Ibid. (“[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process”).

C

Even if a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence, there is the question of what constitutes an appropriate remedy. That question must now be addressed.

Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981) . Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. See Mechanik, 475 U. S., at 72 (“The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences”).

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. 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 the conviction undisturbed.

In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, however, it suffices to note two considerations that are of relevance.

First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Petitioner argues that implementing a remedy here will open the floodgates to litigation by defendants seeking to unsettle their convictions. See Brief for Petitioner 20. Petitioner’s concern is misplaced. Courts have recognized claims of this sort for over 30 years, see supra, at 5, and yet there is no indication that the system is overwhelmed by these types of suits or that defendants are receiving windfalls as a result of strategically timed Strickland claims. See also Padilla, 559 U. S., at ___ (slip op., at 14) (“We confronted a similar ‘floodgates’ concern in Hill,” but a “flood did not follow in that decision’s wake”). In addition, the “prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction.” Frye, ante, at 10. See also ibid. (listing procedures currently used by various States). This, too, will help ensure against meritless claims.

III

The standards for ineffective assistance of counsel when a defendant rejects a plea offer and goes to trial must now be applied to this case. Respondent brings a federal collateral challenge to a state-court conviction. Under AEDPA, a federal court may not grant a petition for a writ of habeas corpus unless the state court’s adjudication on the merits was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). A decision is contrary to clearly established law if the state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor, 529 U. S. 362, 405 (2000) (opinion for the Court by O’Connor, J.). The Court of Appeals for the Sixth Circuit could not determine whether the Michigan Court of Appeals addressed respondent’s ineffective-assistance-of-counsel claim or, if it did, “what the court decided, or even whether the correct legal rule was identified.” 376 Fed. Appx., at 568–569.

The state court’s decision may not be quite so opaque as the Court of Appeals for the Sixth Circuit thought, yet the federal court was correct to note that AEDPA does not present a bar to granting respondent relief. That is because the Michigan Court of Appeals identified respondent’s ineffective-assistance-of-counsel claim but failed to apply Strickland to assess it. Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. Cooper, 2005 WL 599740, *1, App. to Pet. for Cert. 45a. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel. See Hill, 474 U. S., at 370 (applying Strickland to assess a claim of ineffective assistance of counsel arising out of the plea negotiation process). After stating the incorrect standard, moreover, the state court then made an irrelevant observation about counsel’s performance at trial and mischaracterized respondent’s claim as a complaint that his attorney did not obtain a more favorable plea bargain. By failing to apply Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state court’s adjudication was contrary to clearly established federal law. And in that circumstance the federal courts in this habeas action can determine the principles necessary to grant relief. See Panetti v. Quarterman, 551 U. S. 930, 948 (2007) .

Respondent has satisfied Strickland’s two-part test. Regarding performance, perhaps it could be accepted that it is unclear whether respondent’s counsel believed respondent could not be convicted for assault with intent to murder as a matter of law because the shots hit Mundy below the waist, or whether he simply thought this would be a persuasive argument to make to the jury to show lack of specific intent. And, as the Court of Appeals for the Sixth Circuit suggested, an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance. Here, however, the fact of deficient performance has been conceded by all parties. The case comes to us on that assumption, so there is no need to address this question.

As to prejudice, respondent has shown that but for counsel’s deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. See 376 Fed. Appx., at 571–572. In addition, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The standard for ineffective assistance under Strickland has thus been satisfied.

As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”). Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.

The judgment of the Court of Appeals for the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

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No. 10–209

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BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

on writ of certiorari to the united states court of appeals for the sixth circuit

[March 21, 2012]

Justice Alito, dissenting.

For the reasons set out in Parts I and II of Justice Scalia’s dissent, the Court’s holding in this case misapplies our ineffective-assistance-of-counsel case law and violates the requirements of the Antiterrorism and Effective Death Penalty Act of 1996. Respondent received a trial that was free of any identified constitutional error, and, as a result, there is no basis for concluding that respondent suffered prejudice and certainly not for granting habeas relief.

The weakness in the Court’s analysis is highlighted by its opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal representation. If a defendant’s Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to give the defendant the benefit of the favorable deal. But such a remedy would cause serious injustice in many instances, as I believe the Court tacitly recognizes. The Court therefore eschews the only logical remedy and relies on the lower courts to exercise sound discretion in determining what is to be done.

Time will tell how this works out. The Court, for its part, finds it unnecessary to define “the boundaries of proper discretion” in today’s opinion. Ante, at 13. In my view, requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer is rejected, and, second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources.

The lower court judges who must implement today’s holding may—and I hope, will—do so in a way that mitigates its potential to produce unjust results. But I would not depend on these judges to come to the rescue. The Court’s interpretation of the Sixth Amendment right to counsel is unsound, and I therefore respectfully dissent.

SUPREME COURT OF THE UNITED STATES

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No. 10–209

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BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

on writ of certiorari to the united states court of appeals for the sixth circuit

[March 21, 2012]

Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to all but Part IV, dissenting.

“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.” Ante, at 9.

“The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. . . . Bargaining is, by its nature, defined to a substantial degree by personal style. . . . This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects . . . .” Missouri v. Frye, ante, at 8.

With those words from this and the companion case, the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965). The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today’s opinions deal with only two aspects of counsel’s plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be worked out in further constitutional litigation that will burden the criminal process. And it would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the plea-bargaining process that the Court today announces “ ‘is the criminal justice system,’ ” Frye, ante, at 7 (quoting approvingly from Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from “the criminal justice system”?

Anthony Cooper received a full and fair trial, was found guilty of all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial. That conclusion is foreclosed by our precedents. Even if it were not foreclosed, the constitutional right to effective plea-bargainers that it establishes is at least a new rule of law, which does not undermine the Michigan Court of Appeals’ decision and therefore cannot serve as the basis for habeas relief. And the remedy the Court announces—namely, whatever the state trial court in its discretion prescribes, down to and including no remedy at all—is unheard-of and quite absurd for violation of a constitutional right. I respectfully dissent.

I

This case and its companion, Missouri v. Frye, ante, p. ___, raise relatively straightforward questions about the scope of the right to effective assistance of counsel. Our case law originally derived that right from the Due Process Clause, and its guarantee of a fair trial, see United States v. Gonzalez-Lopez, 548 U. S. 140, 147 (2006) , but the seminal case of Strickland v. Washington, 466 U. S. 668 (1984) , located the right within the Sixth Amendment. As the Court notes, ante, at 6, the right to counsel does not begin at trial. It extends to “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U. S. 218, 226 (1967) . Applying that principle, we held that the “entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a ‘critical stage’ at which the right to counsel adheres.” Iowa v. Tovar, 541 U. S. 77, 81 (2004) ; see also Hill v. Lockhart, 474 U. S. 52, 58 (1985) . And it follows from this that acceptance of a plea offer is a critical stage. That, and nothing more, is the point of the Court’s observation in Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 16), that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” The defendant in Padilla had accepted the plea bargain and pleaded guilty, abandoning his right to a fair trial; he was entitled to advice of competent counsel before he did so. The Court has never held that the rule articulated in Padilla, Tovar, and Hill extends to all aspects of plea negotiations, requiring not just advice of competent counsel before the defendant accepts a plea bargain and pleads guilty, but also the advice of competent counsel before the defendant rejects a plea bargain and stands on his constitutional right to a fair trial. The latter is a vast departure from our past cases, protecting not just the constitutionally prescribed right to a fair adjudication of guilt and punishment, but a judicially invented right to effective plea bargaining.

It is also apparent from Strickland that bad plea bargaining has nothing to do with ineffective assistance of counsel in the constitutional sense. Strickland explained that “[i]n giving meaning to the requirement [of effective assistance], . . . we must take its purpose—to ensure a fair trial—as the guide.” 466 U. S., at 686. Since “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial,” United States v. Cronic, 466 U. S. 648, 658 (1984) , the “benchmark” inquiry in evaluating any claim of ineffective assistance is whether counsel’s performance “so undermined the proper functioning of the adversarial process” that it failed to produce a reliably “just result.” Strickland, 466 U. S., at 686. That is what Strickland’s requirement of “prejudice” consists of: Because the right to effective assistance has as its purpose the assurance of a fair trial, the right is not infringed unless counsel’s mistakes call into question the basic justice of a defendant’s conviction or sentence. That has been, until today, entirely clear. A defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687. See also Gonzalez-Lopez, supra, at 147. Impairment of fair trial is how we distinguish between unfortunate attorney error and error of constitutional significance. 1

To be sure, Strickland stated a rule of thumb for measuring prejudice which, applied blindly and out of context, could support the Court’s holding today: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. Strickland itself cautioned, however, that its test was not to be applied in a mechanical fashion, and that courts were not to divert their “ultimate focus” from “the fundamental fairness of the proceeding whose result is being challenged.” Id., at 696. And until today we have followed that course.

In Lockhart v. Fretwell, 506 U. S. 364 (1993) , the deficient performance at issue was the failure of counsel for a defendant who had been sentenced to death to make an objection that would have produced a sentence of life imprisonment instead. The objection was fully supported by then-extant Circuit law, so that the sentencing court would have been compelled to sustain it, producing a life sentence that principles of double jeopardy would likely make final. See id., at 383–385 (Stevens, J., dissenting); Bullington v. Missouri, 451 U. S. 430 (1981) . By the time Fretwell’s claim came before us, however, the Circuit law had been overruled in light of one of our cases. We determined that a prejudice analysis “focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable,” would be defective. Fretwell, 506 U. S., at 369. Because counsel’s error did not “deprive the defendant of any substantive or procedural right to which the law entitles him,” the defendant’s sentencing proceeding was fair and its result was reliable, even though counsel’s error may have affected its outcome. Id., at 372. In Williams v. Taylor, 529 U. S. 362 –393 (2000), we explained that even though Fretwell did not mechanically apply an outcome-based test for prejudice, its reasoning was perfectly consistent with Strickland. “Fretwell’s counsel had not deprived him of any substantive or procedural right to which the law entitled him.” 529 U. S. at 392. 2

Those precedents leave no doubt about the answer to the question presented here. As the Court itself observes, a criminal defendant has no right to a plea bargain. Ante, at 9. “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Weatherford v. Bursey, 429 U. S. 545, 561 (1977) . Counsel’s mistakes in this case thus did not “deprive the defendant of a substantive or procedural right to which the law entitles him,” Williams, supra, at 393. Far from being “beside the point,” ante, at 9, that is critical to correct application of our precedents. Like Fretwell, this case “concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry,” 506 U. S., at 373 (O’Connor, J., concurring); he claims “that he might have been denied ‘a right the law simply does not recognize,’ ” id., at 375 (same). Strickland, Fretwell, and Williams all instruct that the pure outcome-based test on which the Court relies is an erroneous measure of cognizable prejudice. In ignoring Strickland’s “ultimate focus . . . on the fundamental fairness of the proceeding whose result is being challenged,” 466 U. S., at 696, the Court has lost the forest for the trees, leading it to accept what we have previously rejected, the “novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty.” Weatherford, supra, at 561.

II

Novelty alone is the second, independent reason why the Court’s decision is wrong. This case arises on federal habeas, and hence is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Since, as the Court acknowledges, the Michigan Court of Appeals adjudicated Cooper’s ineffective-assistance claim on the merits, AEDPA bars federal courts from granting habeas relief unless that court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). Yet the Court concludes that §2254(d)(1) does not bar relief here, because “[b]y failing to apply Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state court’s adjudication was contrary to clearly established federal law.” Ante, at 15. That is not so.

The relevant portion of the Michigan Court of Appeals decision reads as follows:

“To establish ineffective assistance, the defendant must demonstrate that his counsel’s performance fell below an objective standard of reasonableness and that counsel’s representation so prejudiced the defendant that he was deprived of a fair trial. With respect to the prejudice aspect of the test, the defendant must demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different, and that the attendant proceedings were fundamentally unfair and unreliable.

“Defendant challenges the trial court’s finding after a Ginther hearing that defense counsel provided effective assistance to defendant during the plea bargaining process. He contends that defense counsel failed to convey the benefits of the plea offer to him and ignored his desire to plead guilty, and that these failures led him to reject a plea offer that he now wishes to accept. However, the record shows that defendant knowingly and intelligently rejected two plea offers and chose to go to trial. The record fails to support defendant’s contentions that defense counsel’s representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea bargain for defendant.” People v. Cooper, No. 250583 (Mar. 15, 2005), App. to Pet. for Cert. 45a, 2005 WL 599740, *1 (per curiam) (footnote and citations omitted).

The first paragraph above, far from ignoring Strickland, recites its standard with a good deal more accuracy than the Court’s opinion. The second paragraph, which is presumably an application of the standard recited in the first, says that “defendant knowingly and intelligently rejected two plea offers and chose to go to trial.” This can be regarded as a denial that there was anything “fundamentally unfair” about Cooper’s conviction and sentence, so that no Strickland prejudice had been shown. On the other hand, the entire second paragraph can be regarded as a contention that Cooper’s claims of inadequate representation were unsupported by the record. The state court’s analysis was admittedly not a model of clarity, but federal habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a license to penalize a state court for its opinion-writing technique. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (internal quotation marks omitted). The Court’s readiness to find error in the Michigan court’s opinion is “inconsistent with the presumption that state courts know and follow the law,” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) (per curiam), a presumption borne out here by the state court’s recitation of the correct legal standard.

Since it is ambiguous whether the state court’s holding was based on a lack of prejudice or rather the court’s factual determination that there had been no deficient performance, to provide relief under AEDPA this Court must conclude that both holdings would have been unreasonable applications of clearly established law. See Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 7). The first is impossible of doing, since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice. The Sixth Circuit thus violated AEDPA in granting habeas relief, and the Court now does the same.

III

It is impossible to conclude discussion of today’s extraordinary opinion without commenting upon the remedy it provides for the unconstitutional conviction. It is a remedy unheard-of in American jurisprudence—and, I would be willing to bet, in the jurisprudence of any other country.

The Court requires Michigan to “reoffer the plea agreement” that was rejected because of bad advice from counsel. Ante, at 16. That would indeed be a powerful remedy— but for the fact that Cooper’s acceptance of that reoffered agreement is not conclusive. Astoundingly, “the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.” Ibid. (emphasis added).

Why, one might ask, require a “reoffer” of the plea agreement, and its acceptance by the defendant? If the district court finds (as a necessary element, supposedly, of Strickland prejudice) that Cooper would have accepted the original offer, and would thereby have avoided trial and conviction, why not skip the reoffer-and-reacceptance minuet and simply leave it to the discretion of the state trial court what the remedy shall be? The answer, of course, is camouflage. Trial courts, after all, regularly accept or reject plea agreements, so there seems to be nothing extraordinary about their accepting or rejecting the new one mandated by today’s decision. But the acceptance or rejection of a plea agreement that has no status whatever under the United States Constitution is worlds apart from what this is: “discretionary” specification of a remedy for an unconstitutional criminal conviction.

To be sure, the Court asserts that there are “factors” which bear upon (and presumably limit) exercise of this discretion—factors that it is not prepared to specify in full, much less assign some determinative weight. “Principles elaborated over time in decisions of state and federal courts, and in statutes and rules” will (in the Court’s rosy view) sort all that out. Ante, at 13. I find it extraordinary that “statutes and rules” can specify the remedy for a criminal defendant’s unconstitutional conviction. Or that the remedy for an unconstitutional conviction should ever be subject at all to a trial judge’s discretion. Or, finally, that the remedy could ever include no remedy at all.

I suspect that the Court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any “remedy” provided for this will do nothing but undo the just results of a fair adversarial process.

IV

In many—perhaps most—countries of the world, American-style plea bargaining is forbidden in cases as serious as this one, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial. See, e.g., World Plea Bargaining 344, 363–366 (S. Thaman ed. 2010). In Europe, many countries adhere to what they aptly call the “legality principle” by requiring prosecutors to charge all prosecutable offenses, which is typically incompatible with the practice of charge-bargaining. See, e.g., id., at xxii; Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204, 210–211 (1979) (describing the “Legalitätsprinzip,” or rule of compulsory prosecution, in Germany). Such a system reflects an admirable belief that the law is the law, and those who break it should pay the penalty provided.

In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt. See, e.g., Alschuler, Plea Bargaining and its History, 79 Colum. L. Rev. 1, 38 (1979).

Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, “ ‘it is the criminal justice system.’ ” Frye, ante, at 7 (quoting approvingly from Scott 1912). Thus, even though there is no doubt that the respondent here is guilty of the offense with which he was charged; even though he has received the exorbitant gold standard of American justice—a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward, and (in Michigan as in most States 3 ) the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid because he was deprived of his constitutional entitlement to plea-bargain.

I am less saddened by the outcome of this case than I am by what it says about this Court’s attitude toward criminal justice. The Court today embraces the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the Supreme Court.

*  *  *

Today’s decision upends decades of our cases, violates a federal statute, and opens a whole new boutique of constitutional jurisprudence (“plea-bargaining law”) without even specifying the remedies the boutique offers. The result in the present case is the undoing of an adjudicatory process that worked exactly as it is supposed to. Released felon Anthony Cooper, who shot repeatedly and gravely injured a woman named Kali Mundy, was tried and convicted for his crimes by a jury of his peers, and given a punishment that Michigan’s elected representatives have deemed appropriate. Nothing about that result is unfair or unconstitutional. To the contrary, it is wonderfully just, and infinitely superior to the trial-by-bargain that today’s opinion affords constitutional status. I respectfully dissent.

__________________________________

1  Rather than addressing the constitutional origins of the right to effective counsel, the Court responds to the broader claim (raised by no one) that “the sole purpose of the Sixth Amendment is to protect the right to a fair trial.” Ante, at 6 (emphasis added). Cf. Brief for United States as Amicus Curiae 10–12 (arguing that the “purpose of the Sixth Amendment right to counsel is to secure a fair trial” (emphasis added)); Brief for Petitioner 12–21 (same). To destroy that straw man, the Court cites cases in which violations of rights other than the right to effective counsel—and, perplexingly, even rights found outside the Sixth Amendment and the Constitution entirely—were not cured by a subsequent trial. Vasquez v. Hillery, 474 U. S. 254 (1986) (violation of equal protection in grand jury selection); Ballard v. United States, 329 U. S. 187 (1946) (violation of statutory scheme providing that women serve on juries); Stirone v. United States, 361 U. S. 212 (1960) (violation of Fifth Amendment right to indictment by grand jury). Unlike the right to effective counsel, no showing of prejudice is required to make violations of the rights at issue in Vasquez, Ballard, and Stirone complete. See Vasquez, supra, at 263–264 (“[D]iscrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review”); Ballard, supra, at 195 (“[R]eversible error does not depend on a showing of prejudice in an individual case”); Stirone, supra, at 217 (“Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error”). Those cases are thus irrelevant to the question presented here, which is whether a defendant can establish prejudice under Strickland v. Washington, 466 U. S. 668 (1984) , while conceding the fairness of his conviction, sentence, and appeal.

2  Kimmelman v. Morrison, 477 U. S. 365 (1986) , cited by the Court, ante, at 10–11, does not contradict this principle. That case, which predated Fretwell and Williams, considered whether our holding that Fourth Amendment claims fully litigated in state court cannot be raised in federal habeas “should be extended to Sixth Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel’s failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.” 477 U. S., at 368. Our negative answer to that question had nothing to do with the issue here. The parties in Kimmelman had not raised the question “whether the admission of illegally seized but reliable evidence can ever constitute ‘prejudice’ under Strickland”—a question similar to the one presented here—and the Court therefore did not address it. Id., at 391 (Powell, J., concurring in judgment); see also id., at 380. Kimmelman made clear, however, how the answer to that question is to be determined: “The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect,” id., at 374 (emphasis added). “Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial . . . will be granted the writ,” id., at 382 (emphasis added). In short, Kimmelman’s only relevance is to prove the Court’s opinion wrong.

3  See People v. Cooks, 446 Mich. 503, 510, 521 N. W. 2d 275, 278 (1994); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §22.1(e) (3d ed. 2007 and Supp. 2011–2012).

Print this transcript Transcript: 

ORAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 10-209, Lafler v. Cooper.

Mr. Bursch.

Mr. Bursch: 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 the defendant--

Justice Elena Kagan: Could I -- can 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 it, the right to effective assistance, does attach to suppression hearings, obviously where evidence would not make the proceedings more reliable?

Mr. Bursch: --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--

Justice Sonia Sotomayor: Counsel, isn't there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?

There is no right to demand one or to keep it, but isn't there a right to make that kind of critical decision?

Mr. Bursch: --Justice Sotomayor, the -- 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 have you 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.

Justice Anthony Kennedy: Suppose this were a death -- a death case, and roughly the -- the same facts, failure -- failure to communicate.

And that leads me just to one other question that is based on your opening remarks.

We can think about adjudication as 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?

Mr. Bursch: I'm saying--

Justice Anthony Kennedy: So if you could do all of that, including the death penalty.

I--

Mr. Bursch: --Yes, I'm saying that there is no violation, because in order to prove a Sixth Amendment violation you have to demonstrate unreliability of the adjudicatory process.

I am also saying that there is no reasonable remedy, and I will talk about that in a minute.

With respect to the death penalty in particular, I would refer this Court right back to the Fretwell 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 in that case.

Collins obviously was 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.

And so really the remedy -- I'm sorry.

The severity of the sentence doesn't enter the analysis once you have established that there has been no violation.

Justice Ruth Bader Ginsburg: 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.

Mr. Bursch: 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 is still the question of whether this casts some doubt on the reliability of the proceedings.

Justice Elena Kagan: Well, I thought that the second part of the test asked about harm.

And here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage.

So why doesn't that just meet the requirements of Strickland, both deficiency and prejudice?

Mr. Bursch: Well, that's actually the best argument that the Respondent has in this case.

And the reason--

Justice Elena Kagan: Sounds like a good argument.

Mr. Bursch: --Well, the reason why it's wrong is because this Court has been very careful to define what that harm is.

Specifically, the word was "outcome" in Cronic and Strickland.

Justice Elena Kagan: And outcome -- there is a different outcome here.

He is sitting in prison three times as long.

That's a different outcome.

Mr. Bursch: Yes, but the Court went on to define outcome to mean reliability of the adjudicatory process.

Specifically, the language was whether absent the deficiency the defendant -- I'm sorry -- absent the deficiency, the factfinder would have had a reasonable doubt respecting guilt.

And what we have here is a situation where everyone acknowledges--

Justice Elena Kagan: Well, take the sentencing cases.

The sentencing cases, the determination of guilt is over and the question is, is this person sitting in jail for one day longer because his counsel was ineffective?

And if he is we would find prejudice there.

So why isn't the same thing true here?

Mr. Bursch: --Well, I don't believe it's quite that simple.

If there was some legal error, an error to which he had a constitutional right, then certainly what you said is exactly true.

But if you are talking about more or less days because of, for example, a judge thinking that the difference between crack and cocaine sentences was not appropriate or other things that are really up to the discretion of the trial court judge, Strickland says absolutely those things are not Sixth Amendment violations.

Justice Elena Kagan: Well, I guess I don't understand that answer, because that answer seems to suggest that the assistance being provided was not ineffective.

But here, as Justice Ginsburg notes, you've conceded that the assistance is ineffective.

That assistance has led to a much, much, much longer sentence.

As opposed to some of the sentencing cases suggest that 24 hours is enough, this is 10 years or something; and that should be the end of the game, no?

Mr. Bursch: Well, let's try another sentencing hypothetical, where it's clear that there was deficient performance.

Say that there is a local trial court judge and everyone knows that he has a certain predilection that if you like the local sports team he is going to give you a break.

If the attorney comes in and he does not press the argument that this convicted defendant likes the local sports team, he gets a higher sentence.

That's still not a Sixth Amendment violation.

Really, once you shift sentencing, the question is were you legally entitled to the result.

And simply because he failed to appeal to the right discretionary tendencies of the trial court doesn't really make a difference.

Here we are talking, obviously, about the guilt phase and it's much easier here because it says clearly in Strickland and Cronic and Kimmelman and many, many other cases that that outcome difference, the harm difference, has to be reliability of the process itself.

It's a process--

Justice Antonin Scalia: You acknowledge, though, that it's ineffective assistance of counsel if you're -- well, no, I guess you haven't acknowledged.

Let me ask you: Have you provided ineffective assistance of counsel if you are a lousy bargainer?

You are just no good at the -- you know; I don't know -- the game of bargaining.

And so you do a bad job in bargaining down the sentence, I mean a notoriously bad job.

Is that ineffective assistance of counsel?

Mr. Bursch: --Under the Court's first prong of Strickland, you would have to look at whatever the standards of professional practice were and, depending how lousy the bargainer was, it could or could not be deficient.

But the important thing is if it didn't have any effect on the subsequent trial and sentencing, then it would not be a Sixth Amendment violation.

Justice Antonin Scalia: Well, I don't even agree with the first part.

I don't think our legal process is -- is a bargaining game.

It shouldn't be.

Mr. Bursch: Well, we could agree with that.

Bargaining is not what this is about, and that's why this Court has held in Weatherford and other cases that there is no right to the plea bargain itself.

And that's really the second--

Justice Sonia Sotomayor: You can -- you can agree with that when 95 percent of the criminal cases are disposed of by way of bargaining?

Mr. Bursch: --Because in the 95 percent of cases that are disposed of that way, this Court has already held in Padilla and Hill that there is a constitutional right to have effective counsel when you accepting that plea.

And the difference is when you are accepting a plea you're being convicted.

That is the conviction.

And this Court frequently establishes different tests when you are waiving a right, for example the right to go to trial, versus invoking a right, going to trial.

Justice Sonia Sotomayor: How can you talk about the reliability of a process or its fairness when you have an attorney who has fundamentally misgauged the law?

How can a trial be fair when the attorney is going into a trial thinking his client can't be convicted because the shots fired hit below the waist?

So how can that kind of trial ever be fair?

Mr. Bursch: Because there's no evidence here, not even a contention, that his belief had any impact whatsoever on the fairness of the trial proceeding.

And this Court has drawn a bright-line rule at trial.

If you look at the preliminary hearing, if there is attorney error there, deficiency--

Justice Anthony Kennedy: --Well, but you skipped over a step.

I think we do assume that the deficient advice led to the determination to plead not guilty.

Mr. Bursch: --Right again, but that fork in the road is not one to which he has a constitutional right.

Justice Anthony Kennedy: Well, but that's the question -- that's the question we're confronting.

So I think--

Mr. Bursch: Well, I--

Justice Anthony Kennedy: --your answer was a little too facile on that point.

We have to assume there is ineffective assistance of counsel in advising the client the nature of the charge so that the client can make up his mind whether to plead guilty or not guilty.

We have to assume that in this case, correct?

Mr. Bursch: --Correct, we are assuming that.

But what I would submit respectfully is that the plea stage isn't any different than a preliminary hearing or a line-up or a suppression hearing, where if there was some deficient attorney conduct this Court would still then look to see whether it had an adverse impact on the adjudication of guilt.

Justice Ruth Bader Ginsburg: Suppose the defective advice causes the defendant to enter a plea that he would not have entered if he had been properly advised.

Can he get relief?

Mr. Bursch: Absolutely.

Under Hill and Padilla, this Court has said when you give up your right to trial that's a very different situation and that there is a remedy for that.

Justice Ruth Bader Ginsburg: So explain why defective advice causing a plea, that qualifies, but defective advice causing defendant to turn down a plea--

Mr. Bursch: It's just--

Justice Ruth Bader Ginsburg: --does not?

Mr. Bursch: --It's just like the difference between deciding to proceed with counsel, in which case there is no barrier to entry, or deciding to proceed without counsel, giving up the constitutional--

Justice Antonin Scalia: No, the difference -- that's not the difference at all.

It seems to me the difference is when you plead guilty you deprive yourself of the 24-karat test of fairness, which is trial by jury before nine people who have to find you guilty beyond a reasonable doubt.

When you plead guilty, you give up that.

When you don't plead guilty you get what is the best thing in our legal system.

You can't do any better than that.

Mr. Bursch: --Justice Scalia, you said it much more artfully, but that's exactly the point I was trying to make with Justice Ginsburg, that when you invoke your constitutional rights, your right to have an attorney, to go to a trial, to have a jury, we don't set up barriers to entry.

It's only when you give up those rights.

Justice Elena Kagan: I take it, then, Mr. Bursch, you would have the same answer if the State had never provided counsel at all.

So long as -- if the plea negotiations were all done between the prosecutor and the individual defendant, and the State refused to provide the individual defendant with counsel, but so long as the person in the end decided, oh, I don't like this plea, I'll go to trial, then it's all fine and dandy under the Sixth Amendment?

Mr. Bursch: That would be our position, because that's consistent with this Court's holding in Coleman and Wade and Kimmelman.

Justice Anthony Kennedy: And that would also be your position in a capital case?

Mr. Bursch: Yes.

Under Fretwell this Court held definitively that so long as the reliability of the adjudicatory process and sentence were intact, that the deficient advice didn't affect it, that the severity of the punishment was not legally relevant.

Justice Antonin Scalia: So your position is you are entitled to effective assistance of counsel before you plead guilty, but you are not entitled to effective assistance of counsel in evaluating plea offers?

Mr. Bursch: I would say it slightly different--

Justice Antonin Scalia: All right.

Mr. Bursch: --that you are entitled to effective counsel at every critical stage; however, it is not a Sixth Amendment violation unless it casts doubt on the reliability of the adjudication of guilt.

Justice Anthony Kennedy: That gets back to my question: Is it a violation in the abstract, damnum absque injuria?

Mr. Bursch: I'm sorry.

Justice Anthony Kennedy: Damage without injury.

Mr. Bursch: No, because under the Strickland and Cronic cases there is no damage, there's no Sixth Amendment violation, unless you can prove the prejudice.

Justice Samuel Alito: I mean, all of this is theoretically interesting and it may be that capital cases are sui generis here.

But I thought the heart of your argument was that there just is no way to unscramble the eggs in this situation; there is no -- and that was your third point, I understood it--

Mr. Bursch: Correct.

Justice Samuel Alito: --there is no remedy that can put the parties back into the position where they would have been had the error regarding the legal issue not occurred.

Mr. Bursch: That's exactly right.

And let's talk about the two remedies that are most frequently bandied about in the circuit courts.

First is to order a new trial.

And to us it makes no sense to order a second trial after you have already had a first error-free trial.

In addition, you think about these habeas cases; if you are issuing a habeas writ and vacating a sentence 8 or 9 years after the fact, like you are here, essentially you are releasing the, defendant, because witnesses will die, they will move away, memories will be sparse, and so that's the natural effect of that.

And in Cooper's brief, he doesn't even advocate for a second trial; he asks for specific performance.

The problem with that is there you are infringing on the prosecutor's discretion, which is sacred, to say what his plea offer is going to be.

And circumstances have changed once a trial has taken place.

Chief Justice John G. Roberts: "Sacred" is a little strong, don't you think?

I mean, it is a, to some extent, unfair to the prosecutor because he knows already he's got a guilty verdict in his pocket and he has to go back.

But why is it so terribly difficult to tell the defendant he has a right to accept that offer if he wants, but then go through the normal process, which is it has to be approved by a judge and all that stuff?

I don't see what's terribly difficult about that.

Mr. Bursch: We contend it violates the separation of powers.

But you bring up an important point because circumstances have changed in two respects.

The first is that you learn more information.

So here, for example, the prosecutor learned that not only did Mr. Cooper shoot Kali Mundy, but he did it while she was screaming and running away from him.

That's a changed circumstance.

He might not give the same plea.

Even more so in Frye, where they learned that he was picked for another criminal violation after the plea was given, and the prosecutor testified that he would have taken the plea back when he knew that.

But the bigger changed circumstance is the trial itself, because the prosecutor has now gone through the risk of having an acquittal.

He has also put, for example, the 8-year-old sexual abuse defendant on the stand, something he tried to avoid with the plea offer.

And it truly is an egg that cannot be unscrambled.

And unless there are further questions, I will reserve of the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Jay.

ORAL ARGUMENT OF WILLIAM M. JAY ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Mr. Jay: Mr. Chief Justice and may it please the Court:

Petitioner's convictions and sentence are reliable because the proceedings that produced them were reliable.

And to collaterally attack his convictions or his sentence based on allegedly ineffective assistance of counsel, he has to show that the ineffective assistance of counsel prejudiced him.

As this Court's Strickland cases have used that term, that means he has to show that a reviewing court should lack confidence in the proceeding that produced the convictions or the sentence.

Justice Stephen G. Breyer: Well, you -- first, there is nothing about this in the Sixth Amendment, is there?

I mean, the text of the Sixth Amendment talks about criminal prosecutions requiring the assistance of counsel for defense, period.

Mr. Jay: The Sixth Amendment requires the assistance--

Justice Stephen G. Breyer: There is nothing in the Sixth Amendment that has these qualifications.

I haven't seen anything in any case which was other than case specific.

That is, this issue hasn't been decided before, not to my knowledge.

The language can be taken out of those cases, as you have very properly done.

And so there is nothing that I could find in the cases.

There is nothing in the Sixth Amendment itself.

In 95 percent of the cases, they do plead guilty.

And what's the problem about ordering the prosecution to simply repeat the offer he gave before?

Well, I mean, I don't really see if there -- And prejudice?

Well, if a person's been executed, if he had gotten the -- if he had gotten the plea offer, he would have pled guilty for 50 years in jail, okay?

That's my imaginary case.

I can think of one where there's prejudice.

He's dead.

All right.

So what's the answer in my imaginary case, if it's not in the amendment, not a holding, etc?

Mr. Jay: --Well, I think that -- Let me address that capital hypothetical that has come up several times.

And I think that it's instructive, Justice Breyer, to look at this Court's Strickland cases and look at what remedy they order when there has been ineffective assistance that shakes the reviewing court's confidence in the proceeding that produced it.

They order a new proceeding.

They don't order a specific sentence.

That's why the outcome has never been the yardstick by which ineffective assistance--

Justice Stephen G. Breyer: I don't want to -- I want to stop you there because I don't understand it.

The suggestion is -- I'm not taking this case, I'm making up a hypothetical since we are discussing it really based on the next case.

The defendant never heard the offer, never heard it.

It is crystal clear that if he'd heard it, he would have accepted it.

Okay.

I'm trying to separate out difficulties of this case, which strikes me as difficult because of the facts, from the principle.

And what I want you to do is to tell me why I shouldn't accept the principle, and then we can worry about what's a clear case.

Mr. Jay: --But I think the principle, Justice Breyer, is that you look at what -- you look at what it is the Court's being asked to set aside.

Justice Stephen G. Breyer: Death.

Let's say death.

Mr. Jay: Right.

So in this case you look at the death sentence.

How was that death sentence produced?

If the defendant can show, for example, that he got bad advice about the plea--

Justice Stephen G. Breyer: He shows that never did he ever become aware, because his lawyer was sleeping and moved on vacation and never told him about the plea offer.

That's my hypothetical.

Mr. Jay: --I think that's actually an easier hypothetical than the bad advice because you could show that if the lawyer then gets -- stands up and does a bang-up job at trial -- the defendant is convicted of capital murder, the defendant can't show any prejudicial effect on the trial -- that means that no other lawyer doing a better job could have gotten the defendant -- could even show a reasonable probability that a different verdict would ensue.

That defendant has a reliable capital murder conviction.

Justice Samuel Alito: The Court has said that death is different.

Do you think it is inconceivable that there could be a different rule for capital cases, such as a rule requiring that in a capital case any offer of a noncapital sentence as part of the plea bargain can actually be waived by the defendant in court so that this doesn't come up?

This is not a capital case.

Mr. Jay: This is not a capital case, and I think that it certainly--

Justice Stephen G. Breyer: All right, if you don't want to do the capital case, I'm still trying to get to the principle.

Mr. Jay: --I'm happy to do the capital case--

Justice Stephen G. Breyer: I will change my hypothetical and say all that happened was that this perfect trial because of mandatory sentencing rules led him to prison for 50 years, as compared with a plea bargain that would have given him 2 years.

Now, he is in prison for 48 years more, and I consider that that is at least harmful to him.

So where the amendment doesn't speak of it, where the misbehavior of the lawyer is crystal clear, where it's 48 years more in prison, what is it that bars what seems to me obvious that an inadequate assistance of counsel, remedial through a specific decree saying reinstitute the offer, led to enormous unfairness and prejudice.

Mr. Jay: --Two points, Justice Breyer, and I want to make sure I get out my answer to your capital hypothetical, because you don't look just at whether the sentence that resulted was worse than the sentence that could have resulted.

If that were the case, Fretwell would have come out the other way.

That is death, with no objection made, life sentence if the objection had been made.

So it's not an outcome -- it's not a narrow comparison of outcomes.

What you look at is how the sentence was produced.

Is this defendant entitled, had this -- to a lesser sentence?

Is this -- had this defendant had a better lawyer at sentencing, is there even a reasonable probability that that lawyer, through a different strategy for identifying a legal error--

Justice Antonin Scalia: Mr. Jay, you disagree with the assertion that Justice Breyer made that this was unfair.

This man deserved to get the sentence he got, didn't he?

He had a full and fair trial.

A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence.

How could it be unfair to give him the sentence that he deserved?

Mr. Bursch: Yes, that's correct.

In every case--

Justice Stephen G. Breyer: Let's say there is an occasion where people don't get the sentence that they deserve because, for example, the lawyer was inadequate.

I mean--

Mr. Jay: --And in those cases, Justice Breyer, you show that the lawyer had a bad strategy at sentencing.

That may well have been the same bad strategy that led the lawyer to recommend a not guilty plea.

Let's go to trial on my crazy strategy.

If he can show that and he can show that a better lawyer with a better strategy would produce a different result, then the Sixth Amendment entitles that person to a new proceeding.

The Sixth Amendment never entitles a person to have a court order a particular sentence.

And you can't use the prosecutor's offer made at a different time as the benchmark and say: Well the prosecutor was okay with it at this other time; therefore, the prosecution must be forced to live with it now.

And that's because a plea offer rests on a number of considerations: The need to obtain the defendant's cooperation in other cases; the desire to spare the witnesses and the victim the burdens of trial; and frankly, to avoid the risk of an acquittal.

And the prosecution in this case and in cases like this one, where there has been a reliable conviction and reliable sentencing, the prosecution has already incurred all of those burdens.

So to look at the 51-month minimum offer that was made 8 years ago and have that be the benchmark simply is not something that this Court has ever done in its Strickland cases.

And I think it's revealing about the Respondent's--

Justice Elena Kagan: Mr. Jay, you don't contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you.

Mr. Bursch: --We don't -- we don't think -- that's not part of our argument here.

Justice Elena Kagan: Yes, because we have said that many times, isn't that right?

Mr. Bursch: Well, the Court -- let me be precise, Justice Kagan, because there are two things that the Court can be talking about.

There's the -- there's the interaction between the State and the defendant, and that's where the Court has customarily used language like "critical stage", a confrontation between the defendant and the prosecution.

That's not what we have here.

This is about private advice between the lawyer and the client, and we're not contesting--

Justice Elena Kagan: What we have to recognize -- is that plea bargaining is a critical phase because about 98 percent of the action of the criminal justice system occurs in plea bargaining.

And to deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment.

That's what we've said.

Isn't that right?

Mr. Bursch: --Well, I don't think the Court has faced up -- faced this particular situation, Justice Kagan.

Justice Elena Kagan: So it's not a critical phase.

It's only a critical phase depending on the outcome of what happens at that phase?

Mr. Jay: --We are -- we are assuming that -- that Mr. Cooper in this case had a right to receive effective advice about whether to enter this plea.

But our position is that he wasn't prejudiced because what--

Justice Elena Kagan: Has -- have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase, where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?

Mr. Jay: --Well, again, we don't think this is in any way crucial to deciding this case, but Scott v. Illinois, Justice Kagan, is an example of that.

Justice Antonin Scalia: Mr. Jay, couldn't -- couldn't it be said that what our cases hold is that pleading guilty is a critical phase.

Would that be enough to explain our cases?

Mr. Jay: It certainly is correct that pleading -- a guilty plea hearing, where the defendant--

Justice Anthony Kennedy: Well, it's correct, but is it enough?

Do you want us to write an opinion that plea negotiations are not a critical stage of the criminal process unless at the end of the day a guilty plea results?

Mr. Jay: --That's not at all what we are asking, Justice Kennedy.

What we are asking--

Justice Anthony Kennedy: So Justice Kagan and I want to know what your test is.

Mr. Jay: --Our test to resolve this case is to look at what it is that the habeas petitioner is challenging.

He's challenging the conviction and the sentence.

In the conviction, he was found guilty by a jury.

He now says, page 14a of the red brief, that he is guilty and he wishes he had pleaded guilty sooner.

No basis for challenging the conviction.

May I finish the thought on the sentence?

Chief Justice John G. Roberts: Sure.

Mr. Jay: And -- on this sentence, he was sentenced in accordance with law.

He had effective representation at sentencing and he got the sentence that corresponds to the counts of conviction.

What he wants is to reinstate a deal that was in the prosecution's discretion to offer once upon a time.

Thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Newman.

ORAL ARGUMENT OF VALERIE R. NEWMAN ON BEHALF OF THE RESPONDENT

Ms Newman: Thank you, Mr. Chief Justice, and may it please the Court:

It is uncontroverted here that Anthony Cooper received incompetent advice from his counsel.

It is uncontroverted here that as a result of that incompetent advice Mr. Cooper is serving between 100 and 134 months of extra time of imprisonment.

Justice Ruth Bader Ginsburg: I think it's not -- that he got ineffective assistance, yes, that is not controverted.

But that he would have gotten the 51 months or 68 is certainly controverted because of two interventions: The prosecutor can say no deal; I'm withdrawing it, even after an initial acceptance; and the judge can say, I think 51 to 68 is entirely improper for what this man did.

Ms Newman: Those are both true, Justice Ginsburg -- Justice Ginsburg, but however the Strickland test requires a reasonable probability of a different result.

And on this record, we have no reasonable probability -- we have no reason to expect that that's not exactly what would have happened.

Justice Samuel Alito: The relief that you want is specific performance on the plea bargain.

Ms Newman: Correct.

Justice Samuel Alito: Isn't that correct?

What if it had come to light, come to the prosecutor's attention during this intervening time, that your client had committed four or five other shootings?

Would you still be entitled to specific performance?

Ms Newman: Yes.

We evaluate the case, and the Strickland analysis is an imperfect -- the Strickland remedy is an imperfect remedy.

It has always been an imperfect remedy.

It will always be an imperfect remedy.

Justice Anthony Kennedy: What -- what is the judge supposed to do?

Let's say the remedy is it goes back before the judge.

We are trying to unwind the clock or whatever the metaphor is.

Does the judge have to prescind all knowledge of what he learned in the trial?

Ms Newman: Well, this Court has stated numerous times that it presumes a conscientious decisionmaker, and a conscientious decisionmaker would put--

Justice Anthony Kennedy: Well, I'm asking what -- I'm a conscientious decisionmaker and I'm asking for your advice on what I should do.

I know the details of this crime, which were more horrific than I would have expected because I've heard them at the trial.

Do I just somehow forget about that -- prescind that?

Ms Newman: --You would evaluate the case as you would have evaluated it at the time of the proceedings.

Justice Anthony Kennedy: The answer is "yes".

I -- I ignore everything that I learned during the trial?

Ms Newman: Yes, because the deficient -- you evaluate things at the point of the deficient performance.

And at the point of the deficient performance, the judge had a certain amount of information before him, the prosecutor had a certain amount of information before him, and the defense attorney had a certain amount of information--

Justice Samuel Alito: I mean, that's pretty incredible.

It doesn't matter what the defendant has done in the -- has been discovered to have done in the interim.

Committed five murders, ten murders?

Ms Newman: --Well, in that case--

Justice Samuel Alito: Wipe it out of your mind; you get -- you get the plea bargain that was offered at an early point in -- in the investigation of the case?

Ms Newman: --Yes, because what happens in ineffective assistance of counsel claims is the State has to bear the burden of the unconstitutionality.

And so that is a price that this Court has said the State will bear when there is -- when there is a constitutional violation, because there is no perfect--

Justice Ruth Bader Ginsburg: The judge -- the judge, he knows what the plea -- let's say he knows what the plea bargain was, but he also knows that for one of the crimes, felon in possession, that alone, the sentencing range is 81 to 135.

So without any, considering anything that happened at trial, the judge knows that the plea bargain was for less than if the man had been charged with -- only with a felon in possession.

Ms Newman: --Yes, that's accurate.

Justice Ruth Bader Ginsburg: So it -- it seems most unlikely that a judge would have accepted the plea bargaining for 51 to 68 for the crimes that were charged.

Ms Newman: No, I would disagree with that.

In this court and I can represent to the Court in my practice before this court, which I have practiced before this court for many, many years, this plea bargain was an ordinary plea bargain.

This was not anything extraordinary.

It was very run of the mill.

It was -- it was a run of the mill case--

Justice Ruth Bader Ginsburg: That may be, but is it not true that the sentence range was 81 through 135 for felon in possession?

Ms Newman: --I did not -- typically, you only score out the guidelines for the most serious offense.

So the guidelines may have been high for the felon in possession offense, but however the judge -- in fashioning the remedy, you are not going to -- this Court would not take discretion away from the judge.

So in fashioning the remedy, in adopting the remedy of the Sixth Circuit if this Court were to do that, this case would go back before this same judge if he's still on the bench, and it would be -- would put people back -- Mr. Cooper would accept the plea, but if -- the judge retained sentencing discretion.

Justice Stephen G. Breyer: It wouldn't be a problem.

The problem with Justice Alito's hypothetical, I take it, is what the order would say is that the prosecution has to for a reasonable time extend the same offer.

And then if it's accepted, you go to the judge.

The judge doesn't have to accept the plea.

Ms Newman: Right.

You can't find--

Justice Stephen G. Breyer: You can't make him do that.

But I have a bigger problem with this case, which is -- which I may be the only one to have.

But as I've looked at it, I don't see ineffective assistance of counsel within the AEDPA meaning.

That is, you have two courts in the State which have said this is not ineffective, and as I look at it it's somewhat ambiguous at best -- and we have the Sixth Circuit saying it is.

Well, I know both sides agree, but I mean, both sides couldn't make us decide a case by saying there's a murder when in fact it's not.

I mean, so what am I supposed to do about that?

I find this a tough case.

I have read the record, and in my own opinion at this moment, perhaps no one else's, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside -- a contrary finding of the State court.

So what do I do?

Justice Sonia Sotomayor: If Justice Breyer permits me to add an addendum to give the reasons why I might agree with him, or a way of viewing this, as I read the lower court's decisions, they said there wasn't ineffectiveness, because he was just trying to get a better deal.

And I think that, translating what he said, the very reasonable view by the court was, the prosecutor may think of a lesser charge, because if this guy really wanted to kill this woman he would have hit her head or her chest, but he aimed low, so he was really just angry and shooting enough so that if he hit her, okay, if she died, okay.

But he really didn't have that heinous intent to execute a gunshot to the brain.

And so he was hoping to negotiate something better.

If that's -- and Justice Breyer's shaking his head.

If that in fact, if this is an AEDPA case, and we have to give deference to the State courts, doesn't that resolve this case?

Ms Newman: --No.

Justice Sonia Sotomayor: We have to give deference to their finding.

Ms Newman: You do have to give deference to their finding, there is no question under AEDPA there is deference.

And there is actually no question, there is sort of a doubly deferential review, given the Strickland analysis.

However, the State courts did not decide this case on Sixth Amendment grounds, so there is nothing to give deference to.

The State courts decided this and the trial court said Mr. Cooper made his own choices.

That is not an ineffective assistance of counsel analysis.

The court of appeals in Michigan also did not engage in a Sixth Amendment analysis.

They adopted the trial court and said that Mr. Cooper made his own choices.

So there is -- and this claim was raised specifically on Sixth Amendment grounds from the very beginning of the appeal until it reached this Court.

So there is no AEDPA deference to give to the State court's decision.

There is no question as well that it was ineffective assistance, because the State court record does not bear out that Mr. McClain was trying to get a better deal.

Chief Justice John G. Roberts: You said earlier that the district court, the trial court judge, still retains discretion as to whether or not to approve the plea bargain, right, whether to accept it?

Ms Newman: The sentencing.

Chief Justice John G. Roberts: Yes -- well, which is it, the bargain or the sentence?

It includes the sentence, correct?

Ms Newman: It's a sentence recommendation and under Michigan law the judge cannot--

Chief Justice John G. Roberts: He has discretion -- he has discretion.

So is he allowed to take into consideration all that's happened before, not just with respect to guilt or innocence or the result of the trial, but in imposing the sentence or approving it?

Ms Newman: --Well, he can take into account anything that he could have taken into account in the first place.

But in this case--

Chief Justice John G. Roberts: But nothing that he learned at trial, I take it.

Ms Newman: --I would argue no.

I mean, certainly the court will set the parameters of--

Justice Antonin Scalia: What if he -- what if he turns it down, Ms. Newman.

He says, no, I can't accept this.

What happens then?

He had a new--

Ms Newman: --I would say there is not an option -- oh, I'm sorry, so the judge--

Justice Antonin Scalia: --Yeah, the judge.

It goes back to the judge.

We agree with you and we send it back to the judge.

We reinstate the offer, okay.

He accepts the offer and it goes to the judge and the judge says, no, this is outrageous.

No, I'm not going to approve of this plea bargain.

What happens then?

Ms Newman: --Well, in that case, the case would proceed under Michigan law.

In that case the judge--

Justice Antonin Scalia: We would have a new trial, is that it?

Ms Newman: --No.

I think -- I think it would be perfectly acceptable to say that a new trial is not an appropriate remedy in this case, because he had a trial.

Justice Antonin Scalia: Okay.

So if the judge turns it down, then the prior trial is valid, is that right?

Ms Newman: It would depend on the reasons why the judge would turn it down.

If would have to be a legitimate reason under a state law, otherwise there would--

JUSTICE SCALIA.

Yeah.

Then the prior trial is okay?

Not that it's okay, but I think under imperfect circumstances it's the result that we're--

Justice Stephen G. Breyer: Why?

Why?

Why, why wouldn't the remedy be -- as -- judging from what you said before, is an order saying to the prosecution, re-institute the plea bargain and give him, a week or whatever it is.

Now we imagine the defendant says I accept.

So then they go to the judge, just as they would have before.

Ms Newman: --Right.

Justice Stephen G. Breyer: And the judge has the freedom to accept that or to reject it.

Ms Newman: Correct.

Justice Stephen G. Breyer: If he rejects it, there is no plea agreement.

Now the defendant must plead.

He can plead guilty or not guilty.

And whatever flows from that, flows from that.

Ms Newman: That's also a perfectly acceptable -- that's also a perfectly acceptable remedy.

The purpose -- the reason--

Justice Antonin Scalia: Wait.

Both can't be perfect.

Either he has another trial, although he's just been found guilty by a jury of 12, with an entirely fair proceeding or else he doesn't have a new trial.

Justice Stephen G. Breyer: His suggestion is perfect but mine is more perfect.

[Laughter]

Ms Newman: --Okay.

[Laughter]

Justice Stephen G. Breyer: You don't, you would -- he's right, you would have to, under my suggestion, have a new trial; even though there was a trial that took place two years ago or whatever it is, correct?

Ms Newman: Correct.

Justice Stephen G. Breyer: But that isn't the end of the argument.

So, if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial.

Ms Newman: No.

The bar on habeas -- well the bar on Strickland, even not on habeas, is a very high bar, as this court said in Padilla.

And it's not a bar that can often be met.

And so you have to show under a Strickland analysis deficient performance and prejudice.

Chief Justice John G. Roberts: A deficient performance--

Justice Samuel Alito: Well, I don't know if that's going to be so hard to show.

Do you think it's feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?

A favorable plea bargain is offered, caps the guy's possible sentence at let's say three years.

The defense attorney says, we've got a great shot at an acquittal, let's go to trial.

I'm going to rip the prosecution's witnesses apart.

The trial turns out to be a disaster.

Convicted on all counts.

25 years.

Do you think that it's impossible for the rule that you want us to adopt here to be applied in that situation as well?

Ms Newman: I think it would be much more difficult, because this Court on habeas review and state courts on non-habeas review are very deferential to strategic decisions.

Almost anything that qualifies--

Justice Anthony Kennedy: Well, you say that.

But, as an administrative matter, I think we have to have some concern that these plea negotiations and discussions are in myriad circumstances.

The defense attorney is by the water cooler and the prosecutor walked by and says I'm thinking of offering you a good bargain in the Jones case.

He knows he's going to have that prosecutor in court the next day and really beat him.

He thinks he's going to soften him up, so he doesn't communicate it to the client and the prosecutor later says withdrawn.

We are going to have inquiries post hoc on all these negotiations and discussions.

And it seems to me that absent some other rule, like I don't think we have the authority to impose that all plea offers must be in writing and be stated with specificity, if that is what you are proposing, is simply unworkable.

Ms Newman: --I disagree, Your Honor.

We have had Strickland that held jurisprudence for three decades.

There was a flood gates argument when Hill was decided that we are going to have all these people -- that we -- and we have had since McMahon v. Richardson, this Court saying plea bargaining is a critical stage.

Justice Elena Kagan: And most of the circuits follow your rule, isn't that right?

Ms Newman: Right.

We already had unanimity--

Justice Elena Kagan: And the flood gates have not opened.

Ms Newman: --I'm sorry.

Justice Elena Kagan: Go ahead.

Ms Newman: Yes, we have unanimity in the federal circuits and we have -- almost every state that has addressed this issue has addressed it in the same manner.

Justice Ruth Bader Ginsburg: Unanimity on the remedy?

Here the court said that the writ shall be granted conditioned on the state taking action to offer the 51 to 85 months plea.

So that doesn't bind the judge, but it does bind the prosecutor.

Ms Newman: Correct.

Justice Ruth Bader Ginsburg: And it removes the possibility of the prosecutor saying,

"I would have withdrawn that initial offer. "

Ms Newman: Correct.

Justice Ruth Bader Ginsburg: So the prosecutor -- the remedy is -- is that the remedy that's uniform?

That the prosecutor has no discretion, only the judge does?

Ms Newman: Well, the remedies vary.

When I said unanimity, I didn't mean every Court in every circuit does exact -- handles this exactly the same way.

Unanimity in the sense that every federal circuit and almost every state that has addressed this issue, and they have addressed this issue for over 30 years, has found that there is a cognizable Sixth Amendment violation that can be remedied on appeal.

Justice Elena Kagan: And perhaps the lack of unanimity on the remedy question is appropriate.

I mean people have been trying to suggest different remedies.

But perhaps one way to deal with the remedy question is to recognize that these cases present very different factual circumstances, that there is a lot of variation in them.

And to give a substantial amount of discretion to the lower courts to work out what the best remedy is, consistent with that factual variation.

Ms Newman: Absolutely.

And it's the same thing the courts have been doing, again, since Strickland and Hill were decided.

Justice Antonin Scalia: Like what.

What factual variation do you think justifies a categorically different remedy.

I mean, it seems to me some of the remedies are good and some are bad.

Ms Newman: Correct.

Justice Antonin Scalia: What factual -- I mean, give me an example of the different remedies and how a certain fact situation could make one okay and the other not okay.

Ms Newman: Well, even in the two cases before the Court today.

I mean, in Mr. Frye's case he accepted a plea and the state court ordered a new trial as a remedy for the ineffective assistance of counsel violation.

In my case and Mr. Cooper's case--

Justice Antonin Scalia: Right.

And why was that okay there?

Why was that okay there?

What factual circumstances made that okay there?

Ms Newman: --Well, that's just -- I don't know that the factual circumstances make it okay, but it was the remedy that the State -- I'm not sure I understand your question.

It was a remedy that the State ordered and in this case it's just the remedy that was ordered by the Federal court was a remedy--

Justice Samuel Alito: --a situation where the -- where the defendant turns down -- where a plea is turned down and the defendant goes to trial, are there any facts in -- any facts that would make any remedy other than specific performance the correct remedy in that situation?

Ms Newman: --These cases are so fact-specific, Your Honor, I don't want to evade the question about a hypothetical, but there -- every case is so fact-specific that I think there -- the possibility exists that a -- that--

Justice Samuel Alito: You're recommend -- you're recommending specific performance as the remedy for your case, and I agree with you that is, if there is to be a remedy, it's the only remedy that makes a -- any modicum of sense.

The remedy of giving a new trial when the person has already had a fair trial makes zero sense.

Ms Newman: --That's correct.

Justice Samuel Alito: So what I'm looking for is any situation -- you said leave it to the discretion of the trial judge.

But what is -- what discretion is there?

What remedy in that situation other than specific performance would be an appropriate -- would remedy what you claim to have been the violation?

Ms Newman: Well, in -- in Mr. Cooper's case I think the -- the remedy in the Sixth Circuit is the only appropriate remedy that -- that puts every -- that is narrowly tailored to the Sixth Amendment violation, and that's what this Court has said.

I mean, this Court has given direction to the courts, to lower courts that you just narrowly tailor the remedy to fit the situation, because there is so many factual--

Justice Stephen G. Breyer: Well, let's go back because I'm now becoming convinced -- I am -- I am trying out what Justice Scalia suggested.

Maybe that does work better.

What -- what you'd say is first, throw the defendant out, unless you are convinced that not only is there ineffective assistance, but also it would have made a difference; he would have accepted the plea bargain.

Ms Newman: --Correct.

Justice Stephen G. Breyer: So now they have to hold the plea bargain open.

They then do it.

They then go to the judge, like any plea bargain.

90 percent of the time the judge will say fine, and that's the end of it.

Ms Newman: Correct.

Justice Stephen G. Breyer: But should the judge decide that this is a case where he would reject the plea bargain, for any one of a variety of reasons, then our assumption was wrong and we reinstate the previous trial.

Now does a judge just say it's over, you were tried, you were convicted, that's the end of it?

What's wrong with that as a remedy?

I mean, what's -- why is that -- why does that muck up the criminal justice system in some way?

I think that's pretty much what Justice Scalia suggested, and I -- and I am now trying that out, because the more I think about it, the more I think maybe that's okay.

Ms Newman: Well, I -- I believe that is what is suggested.

And I--

Justice Antonin Scalia: Don't -- don't blame it on me.

[Laughter]

I don't -- I don't -- it's your suggestion that we set aside a perfectly fair conviction.

Justice Stephen G. Breyer: Yes, but I--

Justice Antonin Scalia: This is just a hypothetical.

If you are going to set it aside--

Ms Newman: --Right.

Justice Antonin Scalia: --I think you should put it back in.

Ms Newman: Well, again, right.

It is going to depend on what happens -- happens below, and that -- we don't -- I mean, the -- the concept here is one--

Justice Sonia Sotomayor: You're -- you are begging the question.

Ms Newman: --Okay.

Justice Sonia Sotomayor: Okay?

Because yes, I think Justice Breyer's first statement, you have to prove the guy was going to take the plea, because there is no sense in -- in giving him a remedy that he would have never sought.

Ms Newman: Right.

Absolutely.

Justice Sonia Sotomayor: All right?

But it goes back to, I think it was Justice Alito or Chief -- or the Chief Justice's question of on what basis can the judge reject the plea?

You have said earlier that he has to put aside any information he learned during the trial, and that's really the nub of this case.

What are the grounds that you are proposing the judge can use to reject the plea?

Ms Newman: That -- any grounds that would have existed in the original circumstances.

So if the judge -- in -- in Michigan there is a variety of reasons why a judge can say I -- I'm not going to accept this sentencing recommendation.

Chief Justice John G. Roberts: --So how are you ever going to know that the defendant would have accepted the plea agreement?

Because by not accepting it he has a chance of going scot-free.

He's going to have a fair trial, that's the assumption; and he may be acquitted.

So how is a judge supposed to say -- I mean, presumably the defendant will always say, I would have taken that deal, because it's better.

So how is a judge supposed to go back and decide whether that's true or not?

Ms Newman: Well, always -- in large part, it's not going to depend on the defendant, it's going to -- in larger part it's going to defend on -- depend on defense counsel--

Chief Justice John G. Roberts: Why?

Ms Newman: --in making that determination, because Strickland always looks at strategy.

I mean that -- that's the underlying--

Justice Anthony Kennedy: I think you can answer the Chief Justice's question.

The Chief Justice said how are you going to know -- you have to show prejudice.

Ms Newman: --Correct.

Justice Antonin Scalia: And there is no prejudice unless he would have accepted the deal.

How are you going to know that he would have?

Of course he is going to say he that would have, but how is a trial judge going to make a credibility determination on that -- on that issue?

I guess it's just a credibility determination.

I don't know how he's going to do it.

I think you can answer the Chief Justice's question yes or no.

Ms Newman: Yes -- I don't think I can answer it yes or no.

Chief Justice John G. Roberts: How is the judge -- how is the judge ever going to know, be able to decide whether the defendant would have accepted the deal or not?

Ms Newman: The same way that -- that trial courts decide any question of fact.

In this case we had testimony from the trial attorney.

The trial attorney told the judge, I told him not to accept the plea because he legally could not be convicted of the charge.

I mean, Mr. Cooper--

Chief Justice John G. Roberts: It's the defendant's choice, not the lawyer's choice.

It's the defendant's choice.

Ms Newman: --But he -- but he has the right to assistance -- to the effective assistance of counsel in making that critical choice, and he didn't have the effective assistance of counsel on -- Mr. Cooper wrote letters to the judge--

Chief Justice John G. Roberts: That's the effectiveness question.

I understand that to be taken out of the case by the concessions on the other side.

I'm talking about the prejudice question.

Ms Newman: --Correct.

Chief Justice John G. Roberts: How is a judge supposed to know?

Ms Newman: The judge looks at the record before him.

So in this case we had Mr. Cooper's testimony--

Chief Justice John G. Roberts: People have different -- some people are willing to take the chance.

Okay?

Let's say the there is a 20 percent chance that the person will be found guilty.

Some people will say, I'm willing to take that chance because I just don't want the chance of -- of going to jail.

I am willing to roll the dice.

Other people will say no, that's too much.

Whether you want to go to jail may cut one way or the other, but how is a judge supposed to decide?

Ask him, are you -- do you take chances?

Ms Newman: --No, by -- by looking at -- Mr. Chief Justice, by looking at the evidence in the record before him.

In this case Mr. Cooper wrote--

Chief Justice John G. Roberts: So the judge should decide whether he would take the deal.

Ms Newman: --No--

Chief Justice John G. Roberts: Look at the evidence before him and say, boy, I would take that deal.

[Laughter]

Ms Newman: --No, no -- no, no, no.

Mr. -- Mr. Cooper wrote two letters to the judge saying I want to accept a plea.

Mr. McLean, the trial attorney who provided the incompetent advice, told the judge in a post-conviction hearing that Mr. Cooper wanted to take a plea.

I mean, there -- there is no -- it is beyond question in this case.

Justice Samuel Alito: Do you think the length and the complexity of the trial has any bearing on this?

This was a relatively short and simple trial.

But let's say a prosecutor offers a plea deal in a case in which the trial is going to take 6 months and it's going to cost a million dollars and if they try that case, there are going to be other cases that they won't be able to try.

The plea is rejected, the case is tried, and then afterwards the -- the remedy is to -- to -- to reinstate this plea offer, which was predicated on the relieving the prosecutor of the burden of having to try that case.

Ms Newman: Well, every plea bargain is predicated on relieving the prosecution of having the burden of -- of trying a case.

I mean, the key here is, let's get back to what Strickland stands for and it's the unreliability or the unfairness of the proceedings.

It's not just an unreliability determination.

So in this case Mr. Cooper had two choices.

He could take a certain plea with almost a certain sentence or he could have a -- really what was a charade of a trial because his attorney told him, you -- you can't be convicted of this offense; you will not be convicted of this offense following the trial.

You can be convicted of a lesser--

Justice Ruth Bader Ginsburg: You conceded -- you conceded he had a fair trial.

That's not in the case.

Justice Anthony Kennedy: Right.

Ms Newman: --I didn't--

Justice Ruth Bader Ginsburg: It can't be a charade and still be fair.

Ms Newman: --It's an unfairness of the entire proceedings that were presented.

All right?

So there is no separate habeas claim with respect to the trial, but the -- but reality is when you look at the criminal -- when you look at the Sixth Amendment, it talks about the criminal--

Justice Anthony Kennedy: You are saying it was unfair to have a fair trial?

Ms Newman: --I'm saying it's unfair to go to trial when your attorney tells you, you can't be convicted.

Justice Anthony Kennedy: You are saying it's unfair to have a fair trial; isn't that correct?

Ms Newman: I'm--

Justice Anthony Kennedy: That has to be your position.

Justice Antonin Scalia: It is.

Ms Newman: --I'm saying it's unfair to say that the trial erases the unfairness when there was no possibility but for a conviction at the end of the road.

So this was a certain guilty plea or this was a -- wrong guilty plea under the math of a trial.

Chief Justice John G. Roberts: Oh, but you can never say that there is no possibility of acquittal.

Juries can decide not to convict no matter what the evidence.

Ms Newman: There was no defense.

I mean, there was no possibility--

Chief Justice John G. Roberts: That's up to the jury.

It's not up to us ex ante to decide this guy is definitely going to lose, so let's not waste our time.

Juries -- I don't want to say often but it is not -- it's certainly not inconceivable that the a may decide for whatever reason we are not going to convict this guy.

Right?

Ms Newman: --That's true, but in this case, Mr. McLean told Mr. Cooper he would be convicted.

I mean, he assured him of conviction.

He said: You will be convicted at the end of the trial; you're just going to be convicted of a lesser offense.

Justice Sonia Sotomayor: Counsel, what was the defense at trial?

Ms Newman: I'm sorry?

Justice Sonia Sotomayor: What was the defense at trial?

Ms Newman: There wasn't -- there was no defense presented.

There was no real defense presented at trial because--

Justice Sonia Sotomayor: Did he deny having committed the act of the shooting?

Ms Newman: --Never.

Justice Sonia Sotomayor: At trial?

Ms Newman: No.

Justice Sonia Sotomayor: Is it the case that in most of the cases in which motions of this kind are brought to trial judges if there is a defense of mistaken identity or of "I didn't do it", that judges often find the defendant has not proven that they would have taken the plea?

Ms Newman: I didn't--

Justice Sonia Sotomayor: In most cases in which a trial is had, where the defendant is pleading misidentification or: I just didn't do this act.

In those cases, do most of the trial judges not permit or don't find that the defendant has met their burden of proving that he or she would have taken the plea?

Ms Newman: --I don't know that the cases bear out that if you have a valid defense it would be harder.

But I would agree with that -- if that's a hypothetical, that if you have a valid defense, it would be a lot harder to be in this position of showing that you would have taken the plea.

Justice Sonia Sotomayor: I thought of this case, and you can correct me if I am wrong, that your client told the attorney from the beginning: I did it; I want to plea.

Ms Newman: That is correct.

There was never -- There was no question in this case at any step, at any stage of the proceedings and there was no -- never, never anything from the trial attorney other than incompetent advice.

He never went to trial for an acquittal.

He went to trial because he believed legally his client would be convicted of a lesser offense that would put him in a better position than if he had accepted the plea.

That's the only reason.

Chief Justice John G. Roberts: You said that -- I want to make sure I understood your point.

You said there was no defense.

Does that mean you didn't -- he had a frivolous defense or that he literally did not put on a defense, just said: Just this state has to prove the case and they haven't done it.

Ms Newman: Well, he held the state to its burden, and that is a defense.

I mean, I--

Chief Justice John G. Roberts: Did he--

Ms Newman: --I'm not saying literally no defense, and I apologize if that's the what he it came across, but no cognizable defense.

It was not mistaken identification or we didn't intend to hit her.

I mean, he never contested the basic facts of that case.

Chief Justice John G. Roberts: --Something the jury could have accepted, right?

Even if it's not legally true that if you shoot him at the -- the person below the waist, that's not a defense, but I can see a reasonable juror saying he probably didn't intend to kill her.

He shot her below the waist.

Maybe that is not such a bad strategy.

Ms Newman: Except the defense counsel on this record specifically said that he -- that he was not running a strategy and hoping for that, that he told the client legally the only thing that could happen to him so he was in a better position by going to trial.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Bursch, four minutes.

REBUTTAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER

Mr. Bursch: Thank you.

I would like to start at the one point where I think all of us, including counsel on both sides agree, and that's that a second trial after an error-free first trial doesn't make sense.

And that right there says a lot about Mr. Cooper's case, because a Strickland remedy is typically a new trial.

And it's exceedingly strange that they are now saying that: I don't want a new trial.

That demonstrates that what they are claiming is not a Strickland violation.

I would like to address, Justice Breyer, your suggestion that maybe you could have specific performance of the plea; and if it's rejected, then the trial result could simply be re-imposed.

And the question is: Well, what's the problem with that?

And I can tick off at least five.

First, as Justice Ginsburg pointed, out it takes away the prosecutor's ability to withdraw the plea which he or she undeniably would have had the right.

Second, as Justice Alito said, it ignores that there is information that could be learned in the interim.

Mr. Cooper could have shot three or to four other people.

Third, it ignores the fact that an error-free trial has taken place.

The prosecutor has taken the risk of putting that the 8-year-old sexual abuse victim on the stand, and you cannot take that risk away.

Fourth, as I already mentioned, we have the separation of powers issue and prosecutorial discretion.

Fifth, we are going to have intractable problems.

Say the offer was plead to A, we will dismiss B; he rejects it based on deficient advice; you go to trial; he is convicted on A and acquitted on B, and now we are going to try to enforce the plea on A?

I mean, that's almost a double jeopardy problem.

So there is intractable problems.

The second point I want to make is about the death situation.

And that's one we take very seriously.

And, Justice Alito, it may be that in a death penalty situation there could be a due process right or some other constitutional right that may mitigate in favor of requiring something be put on the record.

But what is clear is that under this Court's existing precedent, that is not a Strickland violation because the amount of the sentence, whether it's death or 50 years, has nothing to do with the reliability of the adjudicatory proceeding and the sentence.

Finally, the last point that I want to make is something else on which we can all agree.

Mr. Cooper is guilty of shooting Kali Mundy.

He also got exactly the sentence that the people prescribed for the crime that committed.

There is very little unfair about holding him to that sentence.

As Justice Kennedy said,

"It's the position of Mr. Cooper that it is unfair to have a fair trial. "

And from our perspective, that is really the beginning and the end of this inquiry.

And unless you have any further questions--

Justice Anthony Kennedy: I have one -- It's more proper, I think, for the government of the United States under the Federal rules, Rule 11, there has to be a colloquy before a plea is entered.

Do you think the Federal rules and perhaps state rules should be amended so that judges, trial judges before imposing a sentence inquire: Have there been plea offers; have they all been communicated to the defendant?

Is that good practice?

Mr. Bursch: --It could be good practice, but it wouldn't have solved the problem here, because even if they had put the fact of the plea on the record, the problem was the alleged deficient advice that the lawyer gave to the client in private.

And so that doesn't solve the core problem.

The core problem is that they are trying to claim that it was unfair to have a fair trial.

Justice Anthony Kennedy: Well, if they had -- if plea offer had come out -- I don't know how it would work.

When you enter a not guilty plea, you enter a not guilty plea.

Mr. Bursch: Right.

You know, the judge under your theory then would have had to inquire: Well, what advice did your attorney give you with respect to that?

And then evaluate whether that advice was good advice or bad advice.

And I respectfully submit that that would not be a good policy to adopt by rule.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

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Justice Antonin Scalia: As you heard, I filed a dissent in each of these cases.

In Missouri versus Frye, the Chief Justice and Justices Thomas and Alito have joined my dissent.

In Lafler, Justice Thomas has joined in full and the Chief Justice has joined all but one part.

I have not taken the trouble to figure out which of my following comments have been joined by whom, lest I put words in other people mouths, you can assume I speak only for myself and Justice Thomas.

Let me begin with our prior case law to which the majority opinions today claimed to be faithful.

For nearly three decades, ever since we decided the seminal case of Strickland versus Washington dealing within effective assistance of counsel, we have explained that the ultimate focus, “the ultimate focus" in any ineffective assistance case must be "the fundamental fairness of the proceeding whose result is being challenged".

The test was not whether the result would have been different but for the ineffective assistance, but whether the in effective assistance destroyed the fairness of the conviction.

Thus in a case called Lockhart versus Fretwell, decided in 1993, counsel had failed to make an objection which under the then current law pronounced by the Court of Appeals would have compelled the trial court to give the defendant a life sentence instead of the death sentence that he, in fact, received.

We nonetheless found no ineffective assistance in the constitutional sense because that case from the Court of Appeals was wrong and had later been reversed by this Court.

So, even though counsel's error deprived the defendant of a life sentence, that's what he would have gotten.

It did not deprive him of a fair trial. Today's opinion changes that.

There is not doubt that the defendants in these cases were convicted and sentenced pursuant to fair and constitutionally valid procedures.

One of them got the gold standard of American justice, a full-dress jury trial before 12 men and women tried and true, who unanimously found him guilty beyond a reasonable doubt.

The other defendant confessed his guilt after a judicial proceeding that assured his confession was voluntary and true.

They are both without a doubt guilty, they do not claim otherwise, and have been a judge so and sentenced by the fairest of procedures.

What they claim in this appeal is that they should not have had to suffer fair conviction and sentence because it was only mistake of counsel that deprived them of a better plea deal, a few words about plea bargaining.

In many, perhaps most countries of the world, American style plea bargaining, at least in cases such as serious as these, is forbidden, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less simply to save the State the expense of trial.

In Europe, many countries adhere to what they call the "legality principle" which requires prosecutors to charge all offenses they believe they can prove.

In the United States, of course, we have plea bargaining a plenty, but until today, we have regarded it as a necessary evil.

Sure, it causes some people to plead guilty to offenses they are really not guilty of simply to avoid the enormous expense and the risk of being tried for higher offenses and sure, it causes a lot of guilty defendants, perhaps most of them, to get off with a less punishment than the law says they deserve.

Even so, we accept it because many believe that without plea bargaining, our long and expensive process of criminal trial could not sustain the burden imposed on it and our system of criminal justice would grind to a halt.

But until today, no one has thought that there is a constitutional right to a plea bargain, a constitutional right not to plead guilty on the basis of bad advice, yes, because pleading guilty deprives a defendant of a fair trial but not a constitutional right to plea bargain.

In all States and the Federal Government, the prosecution does not have to offer a plea bargain.

The prosecution can withdraw it until it is accepted and even after it has been accepted, the judge can refuse to approve it.

In some States, including Missouri, the State involved in Frye, the plea offer can be withdrawn by the prosecution even after the defendant has accepted it, right up until the time that the judge approves it and accepts the defendant's guilty plea.

After today, however, plea bargaining is no longer a somewhat embarrassing adjunct to our criminal justice system.

The Court says, quoting approvingly from a law review article, "It is the criminal justice system."

And since it is, defendants are entitled, constitutionally entitled to have counsels who are effective plea bargainers, not in order to assure that the defendants get a fair trial but in order to assure that they have a fair chance to escape a fair trial and get less punishment than they deserve.

The Court today embraces the sporting chance theory of criminal law in which the State functions like a conscientious casino operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves and when a player is excluded from the tables, his constitutional rights have been violated.

Today's opinions open a whole new field of constitutionalized criminal procedure, the field of plea bargaining law.

The Court announces this new field in opinions that almost seem designed to sow confusion.

Today's decision -- decisions deal with only a few aspects of constitutional plea bargaining law, attorney' failure to pass along a plea offer and attorney failure to counsel acceptance of a plea offer because of mistake regarding what their prosecution would have to prove at trial.

What other counsel bargaining inadequacies might there be?

The Court does not say, though it acknowledges that that is a difficult question and, of course, if plea bargaining is the criminal justice system, the prosecution must have some responsibilities as well.

Must it leave a plea offer open for a decent amount of time so that the defendant can ponder it?

Is the rule that a plea offer can be withdrawn at anytime before the Court accepts the plea even after the defendant has accepted it?

Is that rule now unconstitutional?

The Court leaves all this to be worked out in further litigation, which you can be sure there will be plenty of.

Perhaps the most perplexing aspect of today's opinions is the majority's discussion of the appropriate remedy for violations of its newly discovered constitutional right.

In Lafler, the Court requires the State to reoffer the plea agreement that was rejected because of counsel's bad advice.

That just turns out to be meaningless however because according to the Court, "The state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly or to leave the convictions and sentence from trial undisturbed."

That is nothing short of extraordinary.

Nowhere in our constitutional jurisprudence have we ever suggested that the remedy for an unconstitutional conviction, which this is said to be, could be entirely subject to the trial court's discretion or that the remedy could ever be no remedy at all.

There are other things wrong with these opinions.

In the Frye case, whether the defendant suffered any prejudice from his attorney's failure to inform him of the plea offer depends on, one, whether he would have accepted the plea offer, two, whether the prosecution would have withdrawn it, as -- as the Missouri law allows and three, whether the trial judge would have approved it.

All of these woulders are purely speculative.

On remand, the Court is to determine prejudice by a process of retrospective crystal ball gazing posing as legal analysis.

As for the Lafler case, that is here on federal habeas corpus and Congress has passed a law that says we cannot reverse a state court decision on federal habeas unless it violated clearly established federal law.

No one could possibly think that a constitutional right to plea bargain was clearly established federal law.

Perhaps, the plea bargaining process is a subject worthy of regulation, but it happens not to be a process regulated by the Constitution, which is not a judicial cure-all for all of society's problems.

The Sixth Amendment is concerned not with the fairness of bargaining, but with the fairness of conviction.

In today's cases, the Court's zeal to bring perfection to everything requires a reversal of perfectly valid, eminently just convictions.

It is not wise, it is not right.

Print this transcript Transcript: 

Justice Elena Kagan: The second case on these issues is Lafler versus Cooper.

Respondent Anthony Cooper was charged with five crimes, including assault with intent to murder and all of those crimes arose out of a single incident where he shot and wounded the victim.

Before trial, the prosecution offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months imprisonment, and that would all be in return for Cooper’s guilty plea to two other charges.

Cooper ultimately rejected the plea offer.

He now alleges that his attorney convinced him wrongly that the prosecution would be unable to establish the intent to murder the victim because the shots had hit her below the waist.

The prosecution made a second and less favorable plea offer on the first day of trial, and Cooper again rejected it.

The -- they went to trial.

Cooper was convicted by a jury on all counts and received a mandatory minimum sentence of 185 to 365 months imprisonment.

It's substantially higher than what he would have received had he accepted the plea bargain.

After the admission in the Court's denied relief on the ineffective assistance of counsel claim, respondent filed a petition for federal habeas relief.

The Federal District Court found respondent's counsel had been ineffective.

It granted a conditional writ, ordering specific performance of the original plea agreement containing the 51 to 85 months sentence.

The United States Court of Appeals for the Sixth Circuit affirmed.

This Court granted certiorari and for the reasons set forth, the Court now vacates the decision of the Court of Appeals.

As the Court makes clear today in Frye, the case just announced, defendants have a right to effective assistance of counsels during the plea bargaining process.

This case comes here with a concession by all parties that respondent's attorneys -- the respondent's attorney, his performance was deficient.

Today, the Court holds that for a defendant who claims that ineffective assistance led him to turn down a plea officer -- offer and as a result, receives a more severe sentence after trial, the defendant must show the following.

He must show that but for the ineffective assistance there is a reasonable probability that he would have accepted the plea and that the prosecutor would not have withdrawn it.

He must show that the court would have accepted the plea and he must show that the conviction and sentence under the plea would have been less severe than none of the judgment and sentence imposed after the trial.

The petitioner and the Solicitor General of the United States, as amicus, propose a more narrow view of the Sixth Amendment.

They contend they cannot be prejudiced under Strickland one arising out of -- of -- out of plea negotiations if the defendant is later convicted at a fair trial.

The Court rejects this view.

First, that contention ignores the fact that the Sixth Amendment does not protect just the trial itself, it applies to all critical stages of the criminal proceedings.

This Court has not said that errors occurring before trial are always remedied by an otherwise fair trial.

Here, as a result of ineffective advice, respondent went to trial and received a sentence three-and-a-half times more severe that he would have received by pleading guilty.

Second, while defendants have no constitutional right to accept the plea offer and no right that a judge accept the plea, when their offer is in fact made they do have the right to effective assistance of counsel when considering it.

Third, the Sixth Amendment is concerned not only with the reliability of the conviction, but also with the fairness and the regularity of the processes that preceded it.

A blanket rule that a trial wipes clean any deficient performance during the plea bargaining process is inconsistent with the reality of the plea bargaining process and with Sixth Amendment principles.

Those principles are consistent with the test that has been adopted by appellate courts now for over 30 years without demonstrated difficulties or systemic disruptions.

There remains the question of an appropriate remedy.

The Court discusses this question in more detail and in the opinion.

In circumstances like this case, the proper remedy may be for the judge to require the prosecution to re-offer the plea and then to exercise discretion in deciding whether to vacate the conviction from trial or lead the conviction undisturbed.

As a remedy here, the state court should exercise its discretion in determining whether to sentence respondent pursuant to the plea agreement, vacate only some of the convictions from trial or leave the convictions and sentence from the trial undisturbed and these matters should be explored in further state proceedings.

Therefore, the decision of the Court of Appeals for the Sixth Circuit is vacated.

The case is remanded for further proceedings consistent with this opinion.

Justice Scalia has filed a dissenting opinion, in which Justice Thomas joins and the Chief Justice joins except as to Part IV. Justice Alito has also filed a dissenting opinion.