Interpreting the Constitution - Part VI - The Fear of Too Much Fairness

It was just a single comment by Justice Scalia during oral argument yesterday.  He serious.  He wasn't being sarcastic or ironic, wasn't poking fun.  Still, I'm not sure that he really meant what he said - or at least what it implies.  But it gets at a major problem with how we think about the Constitution, the closest thing we have to a sacred text.

A bit of context.

The case is Missouri v. Frye.  You can find the entire oral argument transcript here. Here's the plot.

Galin Frye was charged with driving without a license, a felony.  The prosecutor offered a plea bargain.  to a misdemeanor with 90 days in jail if he accepted the deal promptly.  Frye's lawyer didn't tell him about the offer, and after it had expired, Frye entered a guilty plea to the charge and was sentenced to three years.  While he was in prison serving that 3-year sentence, Frye learned about the 90 day misdemeanor offer.  

Nobody seriously disputes that his lawyer should have told Frye about the offer.  It's an absolutely basic rule:  The lawyer conveys every offer (civil case, criminal, doesn't matter, every offer) to the client.  Why?  Because it's always the client's call whether to take it.  We can advise.  We can browbeat.  But we can't decide.  That's for the client.  So the lawyer fucked up.  Then what?

The Missouri courts concluded that Frye was denied his Constitutional right to effective assistance of counsel and that he should be allowed to withdraw his plea and have a trial or plead again (though not to the misdemeanor plea which is long since off the table.

Here's the legal mess.

Missouri says that however much his lawyer screwed up, Frye entered a lawful and proper plea to what he did.  Since he can't show that he didn't know what he was doing when he entered the plea - or that it was somehow involuntary - he really can't complain about it now.  Frye says that he should be able to get that misdemeanor plea that he would (presumably) have jumped on if he'd known about it at the time.

So what to do?

That original plea offer is long-since off the table.  And if you let everyone take back a plea (or undo a trial, for that matter) when they realize that they passed up a chance at a lesser sentence, well, there's no stopping place.  (Or so says Missouri.)  Which led to this exchange between Scalia and Frye's lawyer, a man with the Dickensian moniker Emmett D. Queener.  (In fact, I have to start with Justice Ginsburg to have this make any sense.)

       JUSTICE GINSBURG: But you are -- you are leaving out of the picture the prosecutor's prerogative to withdraw or flip. You said that the court, that it lacked authority to order the State to offer any bargain, but also the court said, I'm not going to require the prosecutor to renew an earlier offer.
One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
       MR. QUEENER: The -- this is a remedy for the Sixth Amendment violation, and that is to put the defendant back into the position as nearly as possible as he would have been in at the time; and at the time the offer was open -- this is not a situation where the prosecutor is being ordered initially or the first instance to make an offer; it -- this is being viewed as the offer that was originally made is still available and open to the defendant.
       JUSTICE SCALIA: Yes, but at the time that offer could have been withdrawn by the prosecutor. And you are saying now it can't be withdrawn. So you are really not putting him back in the situation he was in.
       MR. QUEENER: There -- there is never going to be a perfect remedy for any of these violations, I don't believe.
       JUSTICE SCALIA: I think that's right.
       MR. QUEENER: Right.
       JUSTICE SCALIA: And that's one of the things that causes us to be suspicious of whether there is a constitutional violation -
       MR. QUEENER: Well -
       JUSTICE SCALIA: -- because there really isn't any perfect remedy.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

In fact, Marshall held that Marbury's rights were, in fact, invaded but that he couldn't sue.  That is, Marbury said that if there's a right there must be a remedy except that there doesn't have to be, proving that the law could be as incoherent and disingenuous and outright dishonest in 1803 as it can be today.

It was probably 15 or more years ago that I was arguing a case in the court of appeals.  The judges agreed with me that what the trial judge did was wrong.  But they couldn't find (and frankly, neither could I) any way to even hint at its having made a difference in the trial.  

What can we do?  We can't tell the judge he was wrong without reversing and we have no basis to reverse?

Which was just silly.  As I told them, they do it to me all the time.

Yeah, you're right, but the error was harmless so live with it.  Do it this time.  You want the judge to stop doing this, but the only way tell him to stop is to say it was wrong.

Which makes perfect sense.  Except the court wouldn't do it.  And to this day, I should add, the judge is still doing the same damn thing.  Because the court took the same position.  No remedy, therefore no error.

Anyway, what I'm interested in today is Scalia's claim that if there isn't a perfect remedy, then it seems there must not have been a constitutional violation.  That feels intuitively wrong, and I think it is.  I think (as I suggested at the beginning) even Scalia wouldn't really buy it.  For while his statement seems to channel Blackstone's (and Marshall's) formulation of the rule (if not Marshall's application of the rule), it doesn't.  The problem is that you can't work backwards that way.

To see why, it's necessary merely to offer a more generalized rule.  Here are two versions.

• If it can't be fixed, it isn't broken.
• If it can't be undone, it didn't happen.

You know immediately that those are wrong.  Lots of broken things cannot be fixed.  (Consider Humpty Dumpty.)  And lots of things that can't be undone did indeed happen.  (Princess Di is, in fact, dead.)

Yet if those counter-examples demonstrate why Scalia is wrong, they don't exactly say how to solve his dilemma:

What do you do when the Constitution is violated but there seems no quick and dirty remedy?

Start by looking at it in the context of Frye's case.  The Sixth Amendment says that he had a right to effective assistance of counsel, which means a lawyer whose performance was not objectively deficient.  That was violated.  His lawyer was objectively deficient in not reporting the plea offer to him.

The Supreme Court says that there is no relief for a Sixth Amendment violation unless there is a reasonable probability of a different outcome had counsel's performance been adequate.  OK then.  On that test, Frye would have to prove that if his lawyer had told him (in time) about the misdemeanor plea offer, there's a reasonable likelihood he would have taken it.  That is, he'd have to show that he isn't just suffering buyer's remorse from the sentence he got after his plea but that he ended up entering this plea because his lawyer was incompetent and didn't tell him about the earlier one.

Ah, but that might open a mess.  People who got sentences they don't like might claim that they would have taken deals if they'd known they were offered or if their lawyers had pushed them harder or something.

Damn.

Breyer suggested that maybe there could be a special test for these cases just to avoid that problem.  Nobody asked why it was a problem.  Because, I suppose, and this is deeply distressing, all nine of the Justices were wary of inflicting too much fairness on the system.

The risk of too many people asking to have their rights vindicated.

But of course, that's what we're supposed to be about.  We embrace that risk.

Unless we're the Supremes (or your local trial, appellate, or supreme court much of the time).  If we're them, we think of floodgates.

The remedy crosses the board.  If someone's constitutional rights have been violated, there really is a remedy.  Put the person her back as close to the position she'd be in if they hadn't been as possible.  Will the remedy be imperfect?  Sure.  Most of the time.  But it's something.

The alternative is to assert that only some constitutional violations - ones that lend themselves to congenial remedies - count.  But that's the cafeteria, not the Constitution.

Back to Galin Frye.  If he can show that he'd likely have taken the deal if he'd known of it (and apparently the Missouri courts were convinced), then do what the Missouri courts wouldn't do and  give him the deal he would have taken.  It's not perfect now.  But it's the best that can be done.

Because Blackstone was right, and Scalia wrong.

And either way, bitch slap his lawyer around some.