Counsel's Role in Bargaining for Trials

Counsel’s Role in Bargaining for Trials Gregory M. Gilchrist  ABSTRACT: This Essay examines how counsel might use plea bargaining to mitigate the harm of plea bargaining: rather than bargaining only for pleas, counsel should bargain for trials. INTRODUCTION .................................................................................... 1980 I. TRIAL BARGAINING .............................................................................. 1983 A. T HE G UILTY P LEA .......................................................................... 1983 B. P LEA B ARGAINING .......................................................................... 1985 C. T RIAL B ARGAINING ........................................................................ 1987 II. TRIAL BARGAINS DEFENSE COUNSEL MIGHT PROPOSE ....................... 1988 A. T IME -L IMITED OR W ITNESS -L IMITED T RIALS ................................... 1988 B. R EDUCED J URY S IZE ........................................................................ 1989 C. T HE D EFENDANT ’ S T ESTIMONY ....................................................... 1991 D. T HE V ALUE OF S HORTER , S IMPLER , L ESS U NCERTAIN T RIALS ........... 1992 III. PRACTICAL CONCERNS WITH TRIAL BARGAINING ................................ 1996 A. C OUNSEL C ANNOT B E E XPECTED TO D EVELOP T RIAL B ARGAINS ....... 1996 B. P ROSECUTORS W ILL N OT B ARGAIN FOR T RIALS ............................... 1997 CONCLUSION ....................................................................................... 1998  Associate Professor of Law, University of Toledo. A.B. Stanford University; J.D. Columbia Law School. I would like to thank the organizers and participants associated with the 2013 Fifty Years of Gideon Symposium at the University of Iowa College of Law. Many people have helped me on this project, and I am particularly grateful for comments and guidance from Kara Bruce, Brad Colbert, Jelani Exum, Brian Gallini, Todd Haugh, Brooks Holland, Bryan Lammon, Kate Levine, Chris Lund, Nancy Marder, Susan Martyn, Geoff Rapp, and Rebecca Zietlow. 1980 IOWA LAW REVIEW [Vol. 99:1979 INTRODUCTION Plea bargaining defines our criminal-justice system and counsel’s role in most criminal cases. Forty-nine years after Gideon , 1 the Supreme Court ruled that a defendant’s right to “effective counsel during plea negotiations,” can be violated where counsel’s deficient performance costs the defendant a favorable plea deal. 2 In reaching this conclusion, the Court quoted Professors Scott and Stuntz approvingly: “[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.” 3 The Frye and Lafler decisions implicitly reaffirm two principles: first, effective counsel during bargaining is necessary for a fair process; second, plea bargaining is a significant part of the actual process. 4 Guilty pleas resolve almost all criminal cases. In 2012, in federal court, ninety-seven percent of all criminal convictions resulted from guilty pleas. 5 The numbers are comparable in state courts. 6 In almost all cases, those guilty pleas are secured through bargaining. The fiftieth anniversary of Gideon , this Symposium, and the Frye and Lafler decisions offer an auspicious moment to consider the role of counsel in plea bargaining, and how counsel might work to limit plea bargaining. Professor Stuntz identified “ Gideon ’s requirement that indigent defendants receive counsel” as one of a very few doctrines in criminal procedure that enjoys near universal support. 7 The other doctrine he identified as enjoying near universal support is “that the ratio of guilty acquittals to innocent convictions should be high.” 8 Plea bargaining undermines the latter of these doctrines because it has a tendency to shift the balance between wrongful acquittals and wrongful convictions. 9 But the 1. Gideon v. Wainwright, 372 U.S. 335 (1963). 2. Missouri v. Frye, 132 S. Ct. 1399, 1407–08 (2012). 3. Id. at 1407 (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract , 101 YALE L.J. 1909, 1912 (1992)). It is worth considering the massive shift over five decades that led to this recognition by the Court. As recently as 1965, the Supreme Court wrote: “Trial by jury has been established by the Constitution as the ‘normal and . . . preferable mode of disposing of issues of fact in criminal cases.’” Singer v. United States, 380 U.S. 24, 35 (1965) (alteration in original) (quoting Patton v. United States, 281 U.S. 276, 312 (1930)). 4. See Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Frye , 132 S. Ct. at 1407; see also Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 58 (1985). 5. See U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ ANNUAL STATISTICAL REPORT, FISCAL YEAR 2012, at 8, available at http://www.justice.gov/usao/reading_room/reports/ asr2012/12statrpt.pdf. (“During Fiscal Year 2012, a total of 78,647, or 97 percent, of all convicted defendants pled guilty prior to or during trial.”). 6. See Lafler , 132 S. Ct. at 1388 (“[N]inety-four percent of state convictions are the result of guilty pleas.”). 7. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice , 107 YALE L.J. 1, 13 (1997). 8. Id. 9. See Lafler , 132 S. Ct. at 1397 (Scalia, J., dissenting) (plea bargaining “presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid 2014] COUNSEL’S ROLE IN BARGAINING FOR TRIALS 1981 first of these doctrines— Gideon ’s promise of counsel—might help restore the balance. Specifically, counsel could decrease the dominance of plea bargaining by bargaining differently —counsel could bargain for trials. This is, admittedly, a counterintuitive proposal. Defendants are entitled to trials, so what would it mean to bargain for something to which one is entitled? It means that defendants could bargain away limited trial rights in exchange for leniency. By this mechanism, defendants might preserve adjudication on the merits while still securing some of the leniency normally reserved for those defendants who plead guilty. In a system that only provides trials to a tiny fraction of all defendants, the practice of securing leniency in exchange for limiting the trial rights that are so rarely exercised might fairly be understood as bargaining for trials. This Essay is part of a larger project exploring the possibility of revitalizing criminal trials through trial bargaining. There are numerous suggestions about how to fix plea bargaining, which one could roughly group into three camps. First, there are proposals to ban or limit the practice of plea bargaining. 10 Second, there are proposals to regulate plea bargaining. 11 Finally, there are proposals to import some aspects of the trial into plea bargaining. 12 To the extent trial bargaining fits into the existing massive risk by pleading guilty to a lesser offense”); Russell D. Covey, Signaling and Plea Bargaining’s Innocence Problem , 66 WASH. & LEE L. REV. 73, 80 (2009) (describing plea-bargaining’s “innocence problem” as referring “not merely to the fact that innocent people plead guilty, but that the economics of plea bargaining drives them to do so”). 10. See Albert W. Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System , 50 U. CHI. L. REV. 931, 935–36 (1983) (exploring “a range of reforms that might be implemented within the American criminal-justice system to end [the] unjust practice [of plea bargaining]”); Oren Gazal-Ayal, Partial Ban on Plea Bargains , 27 CARDOZO L. REV. 2295, 2313 (2006) (proposing a partial ban on plea bargaining by limiting “sentence concessions to a certain percentage of the post-trial sentence”). 11. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial , 117 HARV. L. REV. 2464, 2528 (2004) (proposing changes to “rules governing defense counsel, pretrial detention, sentencing guidelines, discovery, and plea colloquies . . . to . . . compensate for some of the problems [of plea bargaining]”); Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection , 99 CALIF. L. REV. 1117, 1151–59 (2011) (proposing regulations based on a consumer-protection model to ameliorate the problems of plea bargaining); Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings , 82 TUL. L. REV. 1237, 1242 (2008) (“No defendant could receive a punishment after trial that exceeded the sentence he could have had as a result of a plea offer by more than a modest, predetermined amount.”); Gregory M. Gilchrist, Plea Bargains, Convictions and Legitimacy , 48 AM. CRIM. L. REV. 143, 148, (2011) (proposing a formal differentiation between guilty plea convictions and trial convictions and a bar on leniency conditioned on an acknowledgement of factual guilt). 12. Professor Appleman has proposed introducing a plea jury to listen to a defendant’s allocution before accepting a guilty plea: Instead of pleading guilty and explaining his offenses solely to the judge, the defendant would direct his plea and allocution to the plea jury. The jury would then determine whether the facts admitted by the defendant match the original charges; whether the plea was knowing, willing, and voluntary; and whether the proffered sentence was appropriate. Although the court would still need to first 1982 IOWA LAW REVIEW [Vol. 99:1979 literature, it is most akin to these last proposals. Trial bargaining seeks to revitalize key aspects of the jury trial within a system dominated by bargaining. 13 Trial bargaining is not without precedent; one can see the contours and possibility of trial bargaining in agreements to stipulate to certain facts as well as in agreements to try a case before a judge rather than a jury. 14 However, as far as I am aware, this is the first proposal that counsel systematically bargain for leniency in exchange for limited...