Constitutional Ethics: Leveraging Sixth Amendment Responsibilities to Avoid Compressed Plea Offer Timeframes

By John J. Dowling III, guest contributor https://www.dhirubhai.net/in/johndowlingiii/

Attorneys often think of the rules of professional responsibility, or ethics rules, in three ways.?First, as negative commands, or things we cannot do.?Second, we see them as barriers to pursuing courses of action and as trip mines—“If I do X, I can be sued or lose my license.”?Third, we think of these rules as being found in our jurisdiction’s formal rules of professional responsibility.?This is largely the right way to think about many ethical rules.?Today, however, I address one ethical rule unique to criminal defense attorneys that should be thought of as a powerful, helpful tool.?And this one does not emanate from the rules of professional responsibility, but from the Constitution itself.

The Sixth Amendment to the U.S. Constitution imposes an affirmative obligation on criminal defense counsel to conduct a thorough investigation of the facts and the law of a case.?I first address the scope of the obligation on the attorney, and the corresponding right enjoyed by the criminal defendant.?I then explain how counsel can use that duty to his advantage to avoid making decisions on plea offers in compressed timeframes.

I.????????The Constitutional Obligation to Conduct a Thorough Investigation.

A criminal defendant has a Sixth Amendment?right?to have his lawyer conduct a thorough investigation of the facts and law involved in a case.?And defense counsel has a corresponding?responsibility?to conduct the investigation.

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.”?The right to counsel is the right to the “effective assistance of counsel.”?Strickland v. Washington, 466 U.S. 668, 686 (1984).?“That a person who happens to be a lawyer is present . . . alongside the accused . . . is not enough to satisfy the constitutional command.”?Id.?at 685.?The right to the effective assistance of counsel “assures the fairness, and thus the legitimacy, of our adversary process by ensuring that defendants have a fair opportunity to contest the charges against them.”?Greiner v. Wells, 417 F.3d 305, 318-19 (2d Cir. 2005).

The right to counsel embraces a right to have defense counsel conduct a thorough investigation.?Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).?The duty to investigate extends to both legal research and factual research.?See Hinton v. Alabama, 571 U.S. 263, 274 (2014).?“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”?Kimmelman, 477 U.S. at 384.?Indeed, the Supreme Court has held that the failure to investigate, or the failure to make a reasonable decision to forego investigating, the government’s case through discovery, may constitute “[s]uch a complete lack of preparation [so as to] put[] at risk both the defendant’s right to an ample opportunity to meet the case of the prosecution and the reliability of the adversarial testing process.”?Id.?at 385 (citations omitted).?The duty to investigate is not obviated merely because a defendant expresses a desire to plead guilty; the right to counsel, and all of its accoutrements, applies in the pre-pleading stage as well.?Padilla v. Kentucky, 559 U.S. 356 (2010);?Hill v. Lockhart, 474 U.S. 52 (1985).

Although the duty to investigate does not compel counsel to conduct a comprehensive investigation of every possible lead or defense,?Strickland, 466 U.S. at 699, or “to scour the globe on the off-chance that something will turn up,” “[r]easonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.”?Rompilla v. Beard, 545 U.S. 374, 383 (2005).?

The American Bar Association has incorporated these concepts into a compendium.?In?Criminal Standards for the Defense Function, Am. Bar. Ass’n (4th ed. 2017), the ABA advises that “[d]efense counsel has a duty to investigate in all cases[.]”?Standard 4-1.4(a).?The ABA goes on to recognize that the duty to investigate does not dissolve merely because of “a client’s expressed desire to plead guilty or that there should be no investigation[.]”?Id.?4-1.4(b).?Nor does the duty disappear because of the ostensible strength of the government’s case or the fact that a client straight up admits guilt.?Id.??The Supreme Court has embraced these standards as a benchmark for evaluating defense counsel’s performance under the Sixth Amendment.?Rompilla, 545 U.S. at 387 & 387 n.6-7.

II.???????Avoiding Unreasonable Plea Offer Deadlines.

By the time counsel is retained or appointed in a criminal case, the prosecutor has likely spent weeks or months reviewing the evidence and the law before making a charging decision.?Naturally, because the prosecutor has already decided what type of plea deal he is willing to offer, he often makes that offer early on in the case.?Then he puts a clock on it.?Sometimes this timeframe can be as early as “by the next court date.”

When this happens, defense counsel can explain that he is not yet in a position to advise his client on the attractiveness of a plea offer (of any kind) because he is still investigating.?If the prosecutor sticks to the short date, counsel should explain that he has a constitutional obligation to conduct a thorough investigation and that it would be impossible to do so in such a compressed timeframe.

In one case, my client was under investigation for a white collar fraud offense.?Two days after I was hired, I spoke to the prosecutor and the FBI agent who laid out the evidence they had on my guy.?Then the agent asked me if my client was willing to come in and cooperate “next week.”?I politely said that I was not even close to being able to make a decision on that subject, one way or the other, as I still needed to investigate.?The agent was almost shocked at first, and he explained that he had bank statements and emails proving guilt.?“What more do you need to know?” he said.?I responded with something like this:

Look, agent Smith, I believe that you believe my client is guilty.?I believe that you believe these records are sufficient to prove intent.?But I have not seen these papers; I have not interviewed my client at length; I have not interviewed any witnesses; I have not calculated his sentencing exposure; I have not poured over my client’s emails for evidence of good faith; and I have not done the math.?I have an obligation to do all of that.?And once I finish, I will be prepared to decide on how to proceed, but I don’t think I can meet my constitutional obligation in one week.?How am I supposed to do all of that in one week?

We ultimately pushed that decision out by about three months.?If I had just asked for more time, the prosecutor probably would have read my approach as a delay tactic and just indicted my guy the next day.?But because I fell back on my duty to investigate, the government understood the reason for the extended timeframe and did not overpressure me into making a decision on the spot.?

Of course, there are situations when counsel, based on his review of the papers and his experience, quickly determines that a guilty plea is an attractive option; sometimes you don’t have to watch the whole movie to know how it ends.??So I am not saying to delay in all cases.?At the very least, however, defense counsel should usually have solid grounds (with constitutional backing) to justify a reasonable timeframe if he needs to by reminding the prosecutor that counsel cannot advise his client until the investigation is complete.?The same approach can (and should) be used if the court has set the case for an unreasonably quick trial track.?In that scenario, not only is the argument about the time needed for an investigation, but also about the Sixth Amendment right to present a defense.

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The Sixth Amendment right to counsel embraces a panoply of protections for criminal defendants.?The moment counsel files a notice of appearance, it triggers a duty on the part of counsel to investigate.?Defense attorneys should rely on that duty to avoid being railroaded into making decisions on plea offers in compressed timeframes.?