Page 6 - White-Collar Crime

S6 | MONDAY, SEPTEMBER 29, 2014 | White-Collar Crime
| NYLJ.COM

Assistance of Counsel
Effective from counsel,6 the court in 2012, through its

companion opinions in Laler and Frye, made
clear that the right to effective assistance of
In Plea Negotiations After ‘Laler’
counsel extends to the plea negotiation stage
of criminal proceedings.7 Although the court
held that the Strickland two-prong test applies
to these claims, it did little to clarify what
advice from counsel is required in order to
pass muster. Predictably, the jurisprudence
is developing rapidly and in all directions as

courts attempt to parse through the count-
less scenarios with which they are presented
under Laler, but for which the Supreme Court
declined to offer speciic guidance.
The court’s holding in Frye was fairly
straight-forward: An attorney’s failure to
inform a criminal defendant of a formal plea
offer falls below an objective standard of

reasonableness.8 Unlike the bright-line rul-
ing in Frye, however, the court in Laler left
many questions unanswered, arguably as a
result of the peculiar facts at issue in that
case. The court in Laler, was presented with
a relatively uncommon factual scenario: The
attorney whose advice was at issue conceded
his ineffectiveness based on having counseled
the criminal defendant that the prosecution

would be unable to establish intent to mur-
der because the victim was shot below the
waist.9 The court therefore expressly declined
to address the question of whether counsel’s
advice in that case fell below an objective
standard of reasonableness, the irst prong
of the Strickland analysis.10 The court did
note, however, that “an erroneous strategic
prediction about the outcome of a trial is not

necessarily deicient performance.”11
For those engaged in white-collar criminal
defense, the fact pattern at issue in Laler
is all too familiar and almost inevitable: In
every case, defense counsel is asked, likely on
more than one occasion, about the strength
of the prosecution’s evidence, the likelihood
of successfully defending the case and the

advisability of accepting a plea offer. In any
case that goes to trial, there is at least the
statistical likelihood that the case will be lost,
that the sentence that is ultimately imposed
will be greater than a sentence that was
offered as part of pre-trial plea negotiation,
and that the defendant will ultimately seek
a way to reverse that outcome. This inevi-
table sequence of events is arguably all that

is required to trigger a Laler claim.
OCK
GST
The Aftermath of ‘Laler’
BI
Attorney errors come in an infinite
A review of post-Lafler decisions on duct of defense counsel and observing that
effectiveness of representation during plea BY MARANDA E. FRITZ
the decision could cause counsel to recom- variety . [t]hey cannot be classi-
negotiations makes clear that while the antici- AND GABRIELLE Y. V́ZQUEZ
mend any plea offer to avoid going down the ied according to likelihood of causing
pated lood of Laler-type claims has in fact road of a trial, an inevitably higher sentence prejudice. Nor can they be deined with
occurred, very few of those claims have In the immediate wake of the U.S. Supreme in the event of conviction, and a charge of suficient precision to inform defense
attorneys correctly just what conduct
succeeded. As courts have faced the steady Court’s widely lauded (and criticized) com- ineffective assistance of counsel.4
to avoid. Representation is an art .5
low of Laler claims, a number of outstanding panion decisions in Laler v. Cooper1 and Two years later, it is clear that these Laler
questions have been addressed including the Missouri v. Fr ye,2 dire predictions abounded. claims are a ixture of Sixth Amendment liti- This article explores some of the salient
substantive and procedural requirements of In his dissent in Laler, Justice Antonin Sca- gation, but uncertainty abounds about both issues that continue to plague the criminal
a successful claim and the appropriate rem- lia warned that the decision would create “a the substantive and procedural aspects of defense (and prosecution) community in the
edies therefor.
whole new ield of constitutionalized criminal those claims, including the core question of wake of the court’s conirmation that Strick-
The Effect of a Proclamation of Innocence.
procedure: plea bargaining law.”3 Judge Jed what constitutes “ineffective assistance of land applies in the plea negotiation phase of
A body of law began to develop immediately Rakoff expressed a very different concern, counsel” at the plea negotiation stage of a criminal proceedings.

after Laler regarding the impact of a client’s focusing on the impact of Laler on the con-
criminal case. The Supreme Court has long
“innocence proclamation” on the effective resisted the temptation (and public demand ‘Laler’ and the Sixth Amendment
assistance inquiry. The scenario is certainly for) clear guidance on the answer to this ques-
common, particularly in white-collar matters MARANDA E. FRITZ is a partner and GABRIELLE Y. tion. As the court stated in the seminal Sixth Having long recognized that the Sixth
where the offenses are often highly technical V́ZQUEZ is an associate at Thompson Hine in New Amendment case, Strickland v. Washington, Amendment safeguards the right of a criminal
and turn on issues of intent. Any seasoned
York.
it adheres to the belief that:
defendant to “reasonably effective assistance”