Only 6% of criminal prosecutions wind up leading to a trial. 94% of the cases are settled between the prosecution, defense, and judge. That process, plea negotiations, is where the experience, wisdom and patience of a good lawyer can make the difference in their client's life. What happens when a client hires or is appointed a lawyer who is overworked, lazy, inexperienced or just having a bad day? As a result, the client gets stuck with making a bad decision or an uninformed decision? I think this happens alot more than folks realize.

Today the United States Supreme Court is listening to oral arguments in a case called Missouri v. Frye (No. 10-144). The Sixth Amendment protects citizens' right to a fair trial, the right t counsel, and to "effective" counsel. But, what about the many times every year in America when busy criminal defense lawyers fail to inform their client of a plea offer, the benefits of a plea offer, or to communicate the plea offer in a manner designed for the listening and comprehension skills of the defendant? In other words, should the 6th Amendment reach deep into the plea bargaining / negotiations process? If so, what is the remedy? Sanction the lawyer? Apologize to the defendant? Or put the defendant back in the position he or she would have been had the lawyer done his or her job effectively?

I say the client should be able to undo the mess created by ineffective lawyering. Without a doubt, criminal law is fraught with peril at every turn. Every decision a lawyer makes or a defendant makes is a cost-benefit analysis. Lawyers, especially public defenders, are overworked as it is. It is all many of them can do to make it to court on time. Writing letters and/or scheduling private meetings tends to be a luxury item reserved for defendants who have the money to pay for the extra time and attention.

Lawyers have an absolute duty to keep clients informed of plea communications. In the Frye case being heard today, the public defender failed to inform his client of a significant plea offer. Charged with a felony carrying up to 4 years in prison, the prosecutor offered a misdemeanor and 90 days in jail. The defendant, a college student, never heard about the offer. His lawyer, inexplicably, never called his client, emailed his client, scheduled a meeting with his client, or mailed his client a letter communicating the offer. The offer expired and the client was sentenced to 3 years in prison for a felony driving under suspension.

The big issue today is this -- how does Mr. Frye demonstrate (now) that he would have accepted the offer had his lawyer communicated it to him? Can a client claim "ineffective assistance of counsel" during the plea bargaining phase? I expect the United States Supreme Court to conclude that the failure to inform a client is the substantial equivalent of absence of counsel during a critical stage of a prosecution.

Every federal Court of Appeal and 25 of 27 states that have addressed this issue have rejected the argument that the protections arising in a change of plea hearing are sufficient to insure a knowing, voluntary, and intelligent guilty plea. A meaningful dialogue between the judge and defendant cannot put the defendant in a position he would have occupied absent the ineffective assistance of counsel.

In a few months, I anticipate the United States Supreme Court to protect clients in the criminal prosecution process when lawyers fail to uphold a reasonably objective standard of effectiveness.