|Associate Justice Anthony Kennedy|
But the court did innovate regarding remedy. Though it infuriated Justice Scalia the court did declare that a man who took his lawyer's stupid advice and was convicted of murder in a fair trial is nonetheless entitled to a remedy: We "order the State to re-offer the plea agreement", Justice Kennedy declared in the majority opinion. Cooper, now serving 185 - 365 months for murder, is sure to grab the opportunity to reduce that to the 51 - 85 months sentence that will make him a free man.
Justice Scalia (joined by Roberts, Alito and Thomas) is alarmed:
[I]t would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the plea bargaining process... Is it constitutional, for example, for the prosecution to with draw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from [the plea bargaining process]?Such Pandora's Box arguments are the stock in trade of dissenters. I am reminded of Caperton v. A.T. Massey three years ago. A liability verdict was vacated because one of the judges who decided it had benefited from a coal mine operator's enormous independent election campaign expenditures on the judge's behalf. A flood of recusal motions was predicted by Chief Justice Roberts. Didn't happen then. Won't happen now. But we can hope that there will be remedies in the likely modest number of cases where a criminal defendant was shortchanged by a lawyer, learns about it, and obtains relief.