Jim Porter: Plea bargains are an integral part of the criminal justice system | SierraSun.com

Jim Porter: Plea bargains are an integral part of the criminal justice system

Jim PorterSpecial to the Sun

TAHOE/TRUCKEE andamp;#8212; Ninety-seven percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.That astounding statistic was recently confirmed by the U.S. Supreme Court in Missouri v. Galin E. Frye.Plea BargainGalin Frye was charged in Missouri with driving with a revoked license. As he had been convicted of the same offense three times before, he was charged with a felony carrying a maximum four-year prison term. The Missouri prosecutor sent Fryeandamp;#8217;s attorney a letter offering to reduce the charge to a misdemeanor with a 90-day sentence if Frye pleaded guilty. Fryeandamp;#8217;s lawyer inexplicably did not convey the offer to Frye, which easily qualified as ineffective assistance of counsel.Right afterwards, Frye was arrested a fifth time for driving with a revoked license. He pleaded guilty and was sentenced to three years in prison. He appealed andamp;#8212; all the way to the Supreme Court andamp;#8212; arguing the Sixth Amendment right to effective assistance of counsel extends to plea offers, not only to trials.Right to Competent AttorneyThe Sixth Amendment grants criminal defendants all sorts of rights, including the right to an impartial jury and the right to andamp;#8220;the assistance of counsel for his defence.andamp;#8221; I guess in the old days only men committed crimes. It was a manandamp;#8217;s world in 1789.The Supreme Court addressed whether the right to effective assistance of counsel applies to the plea bargaining process. The Court noted that longer sentences exist on the books largely for bargaining purposes. The critical point for a defendant is not the unfolding of a trial, but the stage of negotiating a plea bargain. andamp;#8220;Horse trading between prosecutor and defense counsel determines who goes to jail and for how long … plea bargaining andamp;#8216;is the criminal justice system.andamp;#8217;andamp;#8221;The Court wrote, andamp;#8220;The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process andamp;#8230; Because ours andamp;#8216;is for the most part a system of pleas, not a system of trials.andamp;#8217;andamp;#8221;RulingThe Supreme Court in its usual 5 to 4 vote extended to criminals the right to competence in the plea bargaining process; however, to succeed in a claim of incompetent counsel, the criminal defendant must also prove that neither the prosecutor nor the trial judge would have rejected the plea bargain.The case was referred back to Missouri to determine whether the prosecutor or the trial judge would have gone along with the plea bargain that was never conveyed to Frye. Given his fifth arrest for driving without a license, his plea bargain most certainly would have been rejected, so my guess is heandamp;#8217;ll stay in prison.Justice Scaliaandamp;#8217;s DissentJustice Scalia, the smart but seemingly angry justice, wrote a dissenting opinion for the four-justice minority (Joining Chief Justice Roberts, Thomas and Alito, the conservatives).Scalia pointed out there is no right to a plea bargain. As a result of the Courtandamp;#8217;s decision he predicted andamp;#8220;cases galoreandamp;#8221; seeking to overturn convictions based upon mishandled plea bargains. His best quote: andamp;#8220;The plea-bargaining process is a subject worthy of regulation, since it is the means by which most criminal convictions are obtained. It happens not to be, however, a subject covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction. andamp;#8216;The constitution andamp;#8230; is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.andamp;#8217;andamp;#8221;Jim Porter is an attorney with Porter Simon, with-offices in Truckee and Reno. He is a mediator and was-the Governor’s appointee to-the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmandamp;#8217;s-website http://www.portersimon.com.