Page 7 - White-Collar Crime

NYLJ.COM |
White-Collar Crime | MONDAY, SEPTEMBER 29, 2014 | S7

How much is it

criminal defense attorney is also aware that suficient,18 while others, including the Second

really worth?
such proclamations may be predicated on and Seventh Circuits, have held that objec-
an array of factors and may be at odds with tive evidence is required.19 Of those courts
the law and evidence in the case. While many requiring “objective evidence,” there is discor-
practitioners can conirm that counsel’s role dance as to the type of objective evidence that
is perhaps even more critical under those would sufice. Objective evidence has been
When it’s time to make important decisions circumstances, others may argue that a cli- found to include, for example, a signiicant
such as buying or selling a business, valuing an ent’s protestation of innocence essentially disparity between the sentence offered and
opportunity or assessing what may have gone absolves the attorney of any obligation to the sentence received.20
pursue or to counsel regarding a plea offer. The Proper Remedy for Successful ‘Laf-
wrong in a business deal, your clients need to
know where they really stand.
By the time the Supreme Court granted cer- ler’ Claims. Another area of intrigue arising
tiorari in Burt v. Titlow,12 the legal community out of Laler is the appropriate remedy for
Estimating the value of assets is both art and and legal commentators were hopeful—and a successful claim. In Laler, the Supreme
science. You need someone to value your at times demanding—that the Supreme Court Court held that the proper remedy in that
clients’ interest and communicate the opinion would not only address the innocence ques- case was to order the state to re-offer the plea
tion raised therein, but also provide guid- agreement and noted that if the defendant
effectively.
ance on the proper analysis of a Laler claim accepts the offer, the state trial court would
EisnerAmper‘s team has the expertise to generally. The Supreme Court did not meet then exercise its discretion, as customary.21

assess your clients’ interests, helping you meet expectations.
The court explicitly left “open to the trial
their needs and make their case.
In Burt, the Supreme Court was present- court[s] how best to exercise that discre-
ed with, and upheld, the Michigan Court of tion in all the circumstances of the case[s].”22
Read more about valuation at
Appeal’s conclusion that “[w]hen a defendant Although courts are generally in agreement
EisnerAmper.com/valuation
proclaims . innocence ., it is not objectively that defendants should be restored to the
unreasonable to recommend that the defen-
position they would’ve been in absent the

A review of post-’Laler’ decisions on efectiveness of representa-

Let’s get down to business.® eisneramper.com 212.891.4170 tion during plea negotiations makes clear that while the anticipated
MichaelAronow [email protected]
lood of ‘Laler’-type claims has in fact occurred, very few of those

claims have succeeded.

dant refrain from pleading guilty—no matter ineffective assistance of counsel,some have
23
how ‘good’ the deal may appear.”13 However, outright ordered the government to re-offer
the court clariied, in an oft-quoted passage, the plea,24 while others have taken intervening
that “[a]lthough a defendant’s proclamation circumstances into account.25
of innocence does not relieve counsel of his Extension of ‘Laler’. The decision in Laler
normal responsibilities under Strickland, it has already been expanded to apply to situ-
may affect the advice counsel gives.”14 Jus- ations other than those where a defendant
tice Sonia Sotomayor attempted to clarify the declined to take a plea offer on advice of
limits of the court’s opinion in Burt, stating counsel, and convicted at trial. For example,

that regardless of an innocence proclama- in United States v. Hibler,26 the district court
tion, counsel must provide “competent and explained that counsel can be found deicient
fully informed advice,”15 but the quagmire even where there was no prior or better
surrounding the effect of an innocence proc- plea offer. That principle was also applied
lamation remains intact. The Supreme Court’s by the Second Circuit Court of Appeals this
decision in Burt merely reinforced that some year in Kovacs v. United States,27 a decision
weight must be given to such proclamation that involved a counsel’s failure to prop-
but offered no meaningful guidance for courts erly advise the client regarding deportation
or counsel as to what would constitute effec- consequences. While that aspect of the case

tive assistance of counsel in such situations.
was not surprising, the court’s treatment of
The Adequacy of Evidence. Sotomayor’s the prejudice issue was: Although no “bet-
concurrence in Burt addressed a second, and ter” plea offer existed at the time, the court Get the information you need to win
equally important concern, raised by that nonetheless upheld the Laler claim based
case and in most other ineffective assis- on its view that a better plea offer could have cases and negotiate from strength.
tance cases: What is the evidentiary show- been obtained.
ing required to succeed on an ineffective
assistance of counsel claim?16
We know you need quick access to verdict information. That’s why we created
Courts are split on the exact evidentiary Considerations and Recommendations
VerdictSearch, so you can have over 180,000 verdicts and settlements,
updated daily, at your ingertips. Search for award amounts, expert witnesses
burden required to make the necessary show- To this point, Laler has not, and likely will
ing under Strickland, for which the prejudice not, have a substantial impact on the extent and more to win cases and negotiate from a position of strength.
prong is particularly dificult to satisfy. Defen- of successful claims of ineffective assistance
dants face a signiicant hurdle on the issue of of counsel because of its limited reach and GeT a free 24-hour Trial
prejudice under Strickland,17 which requires factual dissonance. It has, however, estab-
them to show not only that they would have lished a framework for an airing of counsel’s
accepted the plea if properly advised, but advice in plea negotiations. Counsel’s conduct VerdictSearch.com
also that the prosecution wouldn’t have with- is now far more likely to be the subject of a

drawn the offer and that the court would have hearing and counsel may have to consider
accepted it.
and perhaps reevaluate if not the content then
In determining what type of evidence is at least the memorialization of her advice.
To get started, visit VerdictSearch.com or contact
required to satisfy the heavy burden placed Courts are also well positioned to allevi- the VerdictSearch Sales Team at 1-800-445-6823
on defendants raising Strickland claims, some ate some of the recurring challenges that are
courts have held that a defendant’s afidavit is
raised in a typical Laler claim. » Page S11