There are two articles worth the read looking back over some of last terms criminal law cases.

Orin Kerr reviews Fourth Amendment cases from the 2011 SCOTUS term, at SCOTUSBlog.

The 13 August National Law Journal has a piece, by Laura Levinson, Retroactivity of cases on criminal defendant’s rights.  (You will need to be a subscriber to NLJ to view it on the web.  But for those of us with Androids, download the NLJ app, and read the weekly NLJ for free.)

Of interest in the Levinson piece is a brief discussion of Missouri v. Frye, and Lafler v. Cooper.  The BLUF on these two cases is that there is a right to effective assistance of counsel during the pretrial negotiation process.  She predicts “a flood of petitions[.]”

Frye:  Holding: The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.”  (Per SCOTUSBlog)

Lafler:  Holding: Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.  (Per SCOTUSBlog)

See also, here.

My Liege Dwight Sullivan may remember this case from our days together at Appellate Defense, United States v. Lonetree, 35 M.J. 396, 413-14 (C.M.A. 1992), cert. denied 507 U.S. 1017 (1993).  The case was remanded for a Dubay on the IAC claim.

Lonetree asserts that his civilian counsel erred by failing “to explore the possibilities of a pretrial agreement, negotiate with the Government over the terms of such an agreement, and present a potential pretrial agreement to their client for his consideration.” Brief for Appellant at 18.

As the basis for his claim, Lonetree details civilian counsels’ total hostility to entering a plea bargain that might have resulted in a 10-, rather than a 25-, year sentence. Lonetree’s affidavit describes his civilian counsels’ assurances that he was not “legally guilty” and that he would prevail at trial, as well as their attempts to convince Lonetree that the Government’s case was racially motivated. . . .

Lonetree offers us colorable claims consistent with the existing record that civilian counsel offered him bizarre and untenable advice, consistently attempting to instill in him a distrust of his military counsel and consistently inducing him away from a plea bargain assuring him substantial leniency in the face of overwhelming evidence of his guilt.

If recollection serves, upon remand they negotiated a “PTA,” for 20 years.  Again, if recollection serves there were “political” overtones to the case at trial.  One of the civilian attorney’s in the case was William H. Kunstler.

The Kunstler firm has, however, not consistently cleaved to the bar’s professional duties in their legal practice. See, e.g., United States v. Lonetree, 35 M.J. 396, 411-13 (C.M.A. 1992) (hearing is ordered to determine whether William Kunstler provided ineffective assistance of counsel when he advised his client not accept a plea agreement that would have significantly reduced his sentence in order to argue at trial that the government’s case was racially motivated), cert. denied, 123 L. Ed. 2d 444, 113 S. Ct. 1813 (1993). Indeed, in this matter, the Kunstler firm has again demonstrated that in their practice, media publicity and notoriety are simply more important than the law, professional ethics, or even their clients for that matter.

United States v. Salameh, 856 F. Supp. 781, 784  (D.C. S.D.N.Y. 1994).

As an aside, the case is useful for its discussion of merged investigations and the need for Article 31, UCMJ, warnings.

3 Responses to “In the Supremes”

  1. Dew_Process says:

    Lonetree was also notable for – if my memory serves me right – allowing the testimony of an “anonymous” witness for the prosecution.

  2. Phil Cave says:

    Yes, DP.  I highly interesting case.  There’s a book and several other articles about the case.

    QP:   DOES AN ACCUSED HAVE A SIXTH AMENDMENT RIGHT TO KNOW THE TRUE IDENTITY OF A U.S. INTELLIGENCE AGENT WHO TESTIFIES AGAINST HIM?

    BLUF:  No!  The reasons are secret.

  3. Bruce MacKenzie says:

    Phil – from an entirely different perspective, I knew Phil Roberts, I think, fairly well.  You may remember him as the trial judge in this and many high viz cases in the late 80s and early 90s.  In many regards, a very interesting character.  Of course, I am not endorsing or criticizing any rulings or decisions made by Phil in his colorful past, but your post made a few neurons spark.  There are lots of Phil Roberts stories out there and I think they all make for good happy hour banter.