Ineffective Assistance of Counsel in Plea Bargain Negotiations

I. INTRODUCTION Criminal defendants have a constitutional right to counsel. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."1 The Supreme Court has interpreted the Sixth Amendment Right to Counsel Clause to mean that criminal defendants have the right to "effective assistance of counsel."2 In Strickland v. Washington3 the Court held that the assistance provided to a criminal defendant is ineffective if (1) the counsel's performance was "deficient" and (2) the deficient performance "prejudiced" the defense so as to deprive the defendant of a fair trial.4 If counsel's assistance to a criminal defendant is ineffective, then the defendant's conviction may be reversed or his sentence may be set aside.5 The Court later extended this right to effective assistance of counsel to state court defendants in Gideon v. Wainwright.6 In Williams v. Jones,7 the U.S. Court of Appeals for the Tenth Circuit considered a unique question: whether a defendant's murder conviction should be reversed or his sentence set aside where his counsel's assistance in plea bargain negotiations was deficient, notwithstanding his conviction following a fair trial. On appeal, the Tenth Circuit held that the defendant established both "deficient performance and prejudice."8 Accordingly, the court remanded the case so the district court could determine the proper remedy for the constitutional violation.9 The question presented in Williams has national significance and has vexed state and federal courts alike. Some courts presented with evidence of deficient counsel during plea bargain negotiations have found a constitutional violation; those courts, however, have struggled to define the proper remedy for the constitutional violation.10 Other courts simply have denied that a constitutional violation occurred where counsel's performance was deficient during plea bargaining, so long as the defendant was afforded a subsequent fair trial.11 The Tenth Circuit in Williams grappled at length with the nature of the constitutional violation implicated by deficient attorney performance during plea negotiations. In the end, a divided panel held that a constitutional violation occurred. In remanding the case, however, the court was unable to set any meaningful guidelines for the lower court to utilize to determine a proper remedy. In 2006, the Supreme Court granted certiorari in Hoffman v. Arave,12 a case similar to Williams, and asked the parties to brief the following question: "What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?"13 Before deciding the case, however, the Supreme Court dismissed it as moot on unrelated grounds (the defendant voluntarily asked that the ineffective assistance of counsel portion of his case be dismissed).14 Given the disagreement and uncertainty in the courts (and on the Tenth Circuit panel), the Supreme Court may conclude that Williams merits its review. Part II of this Note discusses the facts and procedural history of the Williams case, the defendant's conviction for first-degree murder and his sentence to life in prison without parole, and his subsequent petitions for relief due to his attorney's deficient performance during plea negotiations. Part III considers the Supreme Court's interpretation of the Constitution's Right to Counsel Clause. It argues that the Supreme Court decisions interpreting the Right to Counsel Clause reveal that the clause, and the Sixth Amendment as a whole, operates to provide fair trials for criminal defendants. Part IV analyzes the Tenth Circuit's decision in Williams v. Jones, as well as the dissenting opinion of Judge Neil M. Gorsuch. Specifically, it describes the panel majority's lack of appreciation for the underlying purpose of the Counsel Clause - to ensure a fair trial. …