Plea bargaining and the right to counsel at bail hearings

A couple million indigent defendants in this country face bail hearings each year, and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held on bail will plead guilty when faced with any deal that promises he will serve less time than he expects to wait in jail. Because a bad outcome at a bail hearing can prejudice the defendant in subsequent plea bargaining, bail is now a critical stage.INTRODUCTIONImagine a prosecution in Texas for, say, disorderly conduct. The facts of the case are simple: the defendant was arrested while waiting for a friend in the lobby of a housing project. The only issue in the case is legal: Did the defendant's conduct "tend[] to incite an immediate breach of the peace"?1 The defendant is brought before a magistrate and, without counsel, held on bail that he cannot pay. A few days later, the prosecutor calls with a plea deal to time served. The defendant is constitutionally entitled to counsel in accepting or rejecting that plea deal,2 but the prosecutor reminds him that appointing counsel can take quite a long time-and, don't forget, if he takes the deal, he gets out today. The defendant takes the deal without counsel,3 although his conduct could not possibly have tended to incite a breach of the peace: there was no one else around.When the defendant was brought before the magistrate and held on bail, was he denied the assistance of counsel at a critical stage of his proceedings?The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."4 But the defendant only actually gets a lawyer when two criteria are met. First, the right to counsel must have "attached." "Attachment" occurs at the first formal, adversarial proceeding against the defendant, even if that procedure does not involve a prosecutor.5 Second, the proceeding at which the defendant seeks assistance of counsel must be a "critical stage" of the prosecution.6 Critical stages are pretrial procedures so dangerous to the defendant, or so similar to a trial itself, that they require the presence of counsel to protect the defendant's trial rights.7The Sixth Amendment right to counsel requires the effective assistance of counsel, as well as her mere presence, at all critical stages. For an attorney's performance to qualify as ineffective, it must be both constitutionally deficient and prejudicial.8 The prejudice prong of the inquiry requires that the result in the case absent the attorney's errors and omissions would have been better for the defendant.9 In two recent companion cases, Lafler v. Cooper10 and Missouri v. Frye,11 the Supreme Court held that a plea bargain is a "result" that can be the basis for an ineffective assistance of counsel claim: if your lawyer's deficient representation causes you to reject a plea bargain that you would have otherwise taken, and the actual result at trial is worse than what was offered during the plea bargain, your Sixth Amendment right to the effective assistance of counsel has been violated.Among other adverse consequences,12 a bad outcome at a bail hearing can force an indigent defendant to plead guilty. Many indigent defendants cannot post even minimal bail.13 Defendants who are required to post bail that they cannot afford may end up pleading guilty to avoid waiting in jail.14 If the sentence offered by the prosecutor in a plea deal is shorter than the expected wait for trial or bail review,15 all but the most stubborn of defendants would plead guilty. …