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For the first time, the Supreme Court has ruled that defendants have a constitutional right to decent lawyering in plea bargains. And the court went further, declaring that when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea bargain offer. The case was decided by a five-to-four margin. NPR legal affairs correspondent Nina Totenberg tells us more.

NINA TOTENBERG, BYLINE: The court's ruling came in two cases. In one, a Missouri college student named Galin Frye was charged with a felony for a fourth offense of driving with a revoked license. The prosecutor sent Frye's lawyer a letter offering to reduce the charge to a misdemeanor if the defendant would plead guilty and agree to a 90-day sentence. The lawyer, however, never informed his client of the offer. And when it expired, an uninformed Frye pleaded guilty with no conditions and was sentenced to three years in prison, 10 times the plea offer.

In a second case, Anthony Cooper was charged with assault with intent to murder after he shot a woman in the thigh and buttocks. Prosecutors twice offered a plea deal with a recommended prison term of four to seven years. But Cooper's lawyer advised him to reject the offer, because the lawyer said Michigan law did not permit an attempted murder conviction for wounds below the waist. The advice was indisputably wrong. Cooper was tried, convicted and sentenced to three times as much time in jail.

In both cases, the state conceded that the lawyers provided ineffective legal assistance to their clients. But the states contended that didn't matter since there's no constitutional right to a plea bargain. Today, however, the Supreme Court rejected that argument by a five-to-four vote.

The reality is that for the most part, criminal justice today is a system of pleas, said Justice Anthony Kennedy on behalf of the court majority. Ninety-five percent of all convictions are the result of a plea bargain, not a trial, and the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the central role plea bargains play. For the most part, plea bargaining determines who goes to jail and for how long. It's not some adjunct of the criminal justice system. It is the criminal justice system, Kennedy said.

The court then went on to fashion a remedy, telling the lower courts that consistent with state law, the defendants should get a second chance to accept the original offer if they can show they likely would have done so originally, that the prosecutor would not have withdrawn the offer, and that the judge would have approved it.

In an unusual oral dissent from the bench, Justice Antonin Scalia blasted the decision as absurd. Until today, Scalia said, plea bargaining was a somewhat embarrassing part of the criminal justice system, a necessary evil to prevent the system from grinding to a halt if most cases went to trial.

The court's decision, he charged, seeks to assure more than a constitutionally-guaranteed fair trial. It, quote, "embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house, that is to serve less time than the law says he deserves."

Experts across the ideological spectrum were surprised by the breadth of the court's ruling. Kent Scheidegger of the Criminal Justice Legal Foundation said that in the Michigan assault case, the prosecution is getting the worst of both worlds.

KENT SCHEIDEGGER: What it bargained for was avoiding trial, and that trial's already happened.

TOTENBERG: And Stanford law professor, Robert Weisberg, notes that it will often be difficult to put the genie back in the bottle after the fact.

ROBERT WEISBERG: It's as if we have to erase history, forget that the defendant was convicted at a fair trial, and somehow reconstruct behind some veil of ignorance the original plea bargain to see if it would have gone down, and that's not easy.

TOTENBERG: Rachel Barkow, director of the NYU Center on the Administration of Criminal Law, counters that she expects the courts will devise ways to deal with these problems, just as they have dealt with other new Supreme Court rulings in the past.

RACHEL BARKOW: This is a very practical court. And I think what this is, is a court that says: Look, practically speaking, plea bargaining is where we need to be policing things. This is for 95-plus percent defendants. All those defendants have is their lawyer. And if their lawyer is deficient, then these defendants have nothing.

TOTENBERG: Professor Weisberg adds that the court has often been infuriated by egregiously bad lawyering.

WEISBERG: The court is very worried about the quality of legal representation for poor people. It doesn't expect it to be very good representation, but it's appalled when it's horrifically bad representation. And it's sort of saying to the world: Get real. Most of the bad lawyering occurs in cases that involve plea bargaining because most cases involve plea bargaining.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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