Tennessee Supreme Court launches new website--JusticeForAllTN.com

The Tennessee Supreme Court launched a new website this week to provide the public with resources to help navigate the court system. The new site, JusticeForAllTN.com, is intended to assist people with civil legal issues who cannot afford legal representation. A pro bono or self help web site is how one attorney I spoke to referred to the web site.

The Justice for All website includes downloadable court forms, resources for representing yourself in court, information about common legal issues and an interactive map with resources for each of the state’s 95 counties. Thanks to a partnership with the Tennessee Alliance for Legal Services and the Tennessee Bar Association, the site also gives visitors the ability to email a volunteer attorney with questions.

“We view the Justice For All website as a clearinghouse of information and legal resources for Tennesseans facing civil legal issues without the assistance of an attorney,” said Tennessee Supreme Court Chief Justice Cornelia A. Clark. “We hope this site can make the legal system more accessible for all Tennesseans, regardless of income level.”

The Justice For All website also features a dedicated section for attorneys, business leaders and community members who wish to offer their assistance to the access to justice effort. This section of the site includes tools for attorneys to create their own pro bono clinic and links to various volunteer opportunities with legal aid organizations and bar associations across the state.

“Attorneys and community members are valuable partners in our efforts to improve access to justice in Tennessee,” Clark said. “We hope this site provides them with the tools and resources they need to continue the great work they are doing to offer pro bono assistance in their communities.”

Earlier this year, the Tennessee Court system also launched a redesigned version of its website, TNCourts.gov, to provide improved access to court information. The redesigned site features an interactive map of court contact information for each for the 95 counties in the state, an enhanced appellate court opinion search, a c  alendar with appellate court dockets and a robust site-wide search. The site also allows visitors to sign up to receive appellate court opinions or news releases through an RSS feed or via email.

Visitors can also sign up to follow the Court system on Twitter to receive updates about court opinions and other court news throughout the state. Tennessee was of the first court systems in the country to start using Twitter more than two years ago. More than 2,000 people currently receive updates from the Court system via Twitter.

“We believe that using social media offers a great way to reach an expanded audience who may not otherwise seek information about the courts,” Clark said.

Supreme Court Heard Oral Arguments in HIV-Positive Pilot’s Privacy Case

According to reports by CNN and NPR the U.S. Supreme Court heard arguments Wednesday in a case concerning the federal government and an individual’s right to privacy. Here are the transcripts of the Oral Arguments. Specifically, the case before the High Court concerns whether the federal government is liable for damages when it violates the Privacy Act by disclosing that an individual is HIV-positive. Unusually, the government is not attempting to deny its wrongdoing; they fully admit that they broke the law. However, they argue that the Privacy Act only authorizes damage suits when violations have caused economic harm, not merely emotional distress.

The case centers on Stan Cooper, a retired Visa International vice president and a recreational pilot until the 1980s when he was diagnosed HIV-positive. As a result of the diagnosis he allowed his pilot’s medical certificate to lapse. Then in 1994 Cooper reapplied to the Federal Aviation Administration and purposely failed to disclose his HIV status out of fear that he would be automatically disqualified from flying. Cooper then renewed his medical certificate four more times without disclosing his HIV status, even after the FAA changed their rules to allow some HIV-positive pilots to continue flying if they met certain requirements. Cooper claims he would have met the criteria and been able to maintain his medical certificate but that he “didn't want to admit that I had falsified that first application.”

Cooper decided to instead keep quiet. Failing to report your health status to the FAA is a felony under federal law. When Cooper learned the FAA had begun an amnesty program specifically for people like him he began the process of coming clean. 

Sadly for Cooper he waited too long. The FAA and the Social Security Administration had already teamed up to identify pilots who had failed to disclose important medical conditions. The operation, dubbed Operation Safe Pilot, worked by cross-referencing the names of some 45,000 pilots in Northern California with a list of individuals who received Social Security benefits. The project eventually came up with some 3,200 violators. Cooper was among them. In 1995 Cooper applied for and received disability benefits for roughly 12 months. As a result, he was charged with three felonies though this was eventually reduced to one misdemeanor false statement charge. He was then sentenced to two years of unsupervised probation and fined $1,000.

Cooper is the first to admit that falsifying his records was a serious mistake. Though his fine was relatively small his legal fees were colossal, nearly $200,000 to date. 

He’s now suing the federal government to force them to pay for the breach of privacy they committed in Operation Safe Pilot. Social Security medical records are strictly confidential. Disclosure of the records to any other federal or state agency, without the consent of the individual in question, is clearly illegal. The Privacy Act spells out that the “United States shall be liable” for “actual damages” sustained by an individual as the result of any violation of the law.

Cooper filed suit arguing he was humiliated, embarrassed and suffering from both mental anguish and severe emotional distress.

Though a federal district court agreed that the feds had violated the Privacy Act, the Court threw out the case because Cooper did not claim specific economic damages. A federal appeals court later reinstated the suit and it has now risen to the level of Supreme Court review.

The Obama administration argues that the language of the Privacy Act is ambiguous and, as a result, the government ought to be given the benefit of the doubt. Since there is no clear authorization to sue for emotional damages, the administration believes no suit should be allowed to continue.

Cooper, however, believes the government violated a fundamental right in their efforts to ensure pilot safety. “This was a fishing expedition,” he says. Cooper remains a licensed pilot though, adding insult to injury, his name and HIV status are still posted on the FAA’s website.

Adam Liptak writes in the New York Times on yesterday's oral argument.

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Photo credit the Greatlondoni

Supreme Court to Decide if Drug Reps Deserve Overtime

A recent article in The Wall Street Journal discussed the Supreme Court’s decision to hear a case regarding whether pharmaceutical sales representatives are entitled to overtime pay. The Court agreed to consider whether drugmakers must pay overtime to as many as 90,000 sales representatives, heeding calls from both sides for review of what may turn into a multibillion-dollar case. The decision will impact the pharmaceutical industry specifically but could have important implications for employers in general. 

The Court announced Monday that they would consider the February 2011 decision by the Ninth Circuit Court of Appeals in San Francisco in Christopher vs. SmithKline Beecham. In Christopher, the appellate court ruled that GlaxoSmithKline’s pharmaceutical sales representatives are exempt under the Fair Labor Standards Act of 1938 and thus not required to be paid overtime. 

There has been a split in the circuits as the July 2010 decision in In re Novartis Wage & Hour Litigation, before the Second Circuit Court of Appeals, indicates. In that case, the Court in New York ruled pharmaceutical sales representatives are not exempt from overtime. The two suits are among the more than a dozen similar cases that have been filed against drugmakers, including Johnson & Johnson, Bristol-Myers Squibb Co. and units of Novartis AG and Merck & Co. With federal appeals courts divided on the issue, business trade groups joined the Glaxo salespeople to urge Supreme Court review.

The Supreme Court announced that two issues would be considered when hearing the case: 1) whether deference is owed to the Secretary of Labor’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and 2) whether the FLSA’s outside sales exemption applies to pharmaceutical sales representatives. 

One Pennsylvania attorney is quoted by The Wall Street Journal as saying that the 9th Circuit “took a practical view of what the sales reps do and said, ‘Yes, they are really engaged in selling pharmaceuticals.’ The 2nd Circuit said, ‘No, they’re not, because the doctors don’t buy anything. All they do is write prescriptions.’” 

However the Court rules it will impact future cases. If the Supreme Court decides to give deference to the DOL’s interpretation of this particular outside sales exemption then it could increase the power of the DOL to shape the law through amicus briefs in the future. 

On the other hand, if the Supreme Court rules there should not be deference given to the DOL’s position, then it is possible that the DOL will take a second look before they decide to weigh in on other future disputes. 

The ruling would not be limited to the pharmaceutical industry but could instead apply across the board to industries that have sales-related employees. The decision might also be felt by employees who are in positions where they travel during the work day and make use of cellphones and emails outside their standard work hours, and thus fall into that gray, or semi-gray, area between exempt and non-exempt. 

The justices will hear arguments and rule by the middle of next year.

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TN Court of Appeals Affirms Hamilton County Trial Court's Denial of Motion to Suppress

• State of Tennessee v. Kenneth D. Gann

On November 22nd, the TN Court of Criminal Appeals affirmed the trial court's decision to deny a motion to suppress on the case of Kenneth D. Gann. Gann was convicted for the murder of his wife. On the night of the murder, he also attempted to commit suicide by taking pain killers and sealing a plastic bag over his head. When police arrived at the scene, Gann was still alive. He was taken to the hospital and was placed in ICU. When he first made it to the ICU, his condition was stable. However, he was not responsive to the normal tests. After a few hours, he began to wake up and was able to sit up, talk, and drink water without his assistance. He answered correctly to questions about his name and the identity of his parents. Shortly after he woke up, a nurse alerted the police. The police then arrived to take Gann's statement. They explained his constitutional rights and he signed a waiver of rights form. During this interview, he confessed to killing his wife. The interview with the police took a little over one hour. On the recording of the interview, Gann spoke clearly and answered the officers' questions in detail. He said he understood his rights but wanted to give a statement.

After his conviction, Gann appealed, arguing that the statement taken was not given willingly or voluntarily. The appeals court examined a number of factors to determine whether the statement was given voluntarily. Based on the totality of the circumstances, Gann's conviction was upheld. Specifically the court was convinced of the adequacy of the statement by Gann's age, the fact that he was an educated high school graduate, that he was not deprived of food or water during the interview, that he did not receive threats of physical abuse, and that the interview lasted barely over an hour. Further, the court mentioned that Gann spoke clearly on the recording, there was testimony from doctors and nurses that his "thought processes were pretty clear," and that the doctor approved him for discharge. All of these factors taken as a whole failed to prove that the trial court erred in its denial of the motion to suppress.

Georgia's Requirement of Proof of Mental Retardation Beyond a Reasonable Doubt Constitutional

On November 22, 2011 the Eleventh Circuit held that Georgia’s requirement that criminal defendants prove their mental retardation beyond a reasonable doubt constitutional in Hill v. Humphrey.

Georgia was the first state to enact a prohibition against the execution of the mentally retarded. Years later, and after a national consensus adopting this policy was formed, the United States Supreme Court held in Atkins v. Virginia that imposing the death penalty on the mentally retarded is unconstitutional in violation of the 8th amendment.

In Hill, the sole question before the en banc Court was “whether the Georgia Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt standard does not violate the Eighth Amendment— is contrary to clearly established federal law, as announced in Atkins.” As noted above, the Eleventh Circuit held that it was not.

Atkins appears to be straightforward—the government can’t execute the mentally retarded. However, the Supreme Court did not provide guidelines for how to determine who is mentally retarded nor did it address how to allocate the burden of proving mental retardation. The Eleventh Circuit in Hill relied primarily on the fact that the Supreme Court left these decisions to the states.

The Eleventh Circuit determined that the state standards regarding mental retardation that Georgia did adopt are within reason. Georgia’s definition of “mentally retarded” means (1) having “significantly sub average general intellectual functioning,” (2) “resulting in or associated with impairments in adaptive behavior,” and (3) “which manifested during the developmental period.” The court opined that Georgia’s definition essentially tracks the AARM and APA definitions of mentally retarded, which were mentioned in Atkins.

The court then noted that Georgia’s reasonable doubt standard, to be ruled unconstitutional, would have had to have been contrary to clearly established federal law. The court noted that this is a difficult requirement to meet “because the purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction.” The majority did not address the merits of the beyond-a-reasonable-doubt standard at any length, only noting that it was not discussed in Atkins.

Finally, the court noted that Georgia has sufficient procedural protections in place by allowing a criminal defendant to assert mental retardation and allowing the jury to find the defendant guilty, but mentally retarded.

Justices Martin, Barkett, Marcus, and Wilson dissented. Unlike the majority, the dissent primarily focused on this burden of proof itself and the effects of imposing such a high burden. The dissent opined that the effect of the beyond-a-reasonable-doubt standard would be contrary to the purpose of the Supreme Court’s decision in Atkins—that Georgia’s beyond-a-reasonable-doubt standard would result in the execution of the mentally retarded.

Supreme Court Must Answer “The Broccoli Question”

With the recent decision by the Supreme Court to hear the challenge brought by states against President Obama’s national healthcare plan, the justices will be left to answer the broccoli question. Namely, “If Congress can order you to buy health insurance, why can’t it order you to buy (and eat!) broccoli?”

The answer isn’t as simple as it seems. If the Supreme Court finds the insurance mandate in the healthcare reform act is constitutional, it is endorsing a very expansive view of Congress’ power to regulate interstate commerce under Article I of the Constitution. The Obama administration argues Congress is well within its rights to regulate an interstate industry that delivers a product virtually every American will use at some point in his or her life. That administration argues that for an individual to go without health insurance is to impose costs on other Americans.

But that same argument works for broccoli, the eating of which is believed to protect against colon cancer. Reducing the rate of colon cancer would reduce healthcare costs and thus have a direct economic impact on the interstate healthcare market.

Advocates of Obama’s plan have had difficult identifying what makes healthcare different from many other markets. David Kopel, a conservative constitutional law expert with the Cato Institute points out, “You can think of lots of products everybody consumes. Clothing. Food.”

In fact, health insurance is one of the few products that by law can’t be purchased on an interstate basis as states aggressively protect their power to regulate the industry. So on that basis, Kopel said, healthcare might be one of the least interstate markets Congress can regulate.

The dispute hinges on the meaning of the Commerce Clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Necessary and Proper Clause says Congress may do whatever is “necessary and proper” to enforce its Commerce Clause authority and other “enumerated powers” contained in the Constitution.

The key cases concerning the Commerce Clause are U.S. vs. Lopez and U.S. vs. Morrison, two modern decisions that set limits on Congress’s Commerce Clause powers. In Lopez, the court struck down a law prohibiting guns near schools as being too disconnected from any reasonable concept of interstate commerce. And in Morrison, the court did the same. Congress tried to tie both laws to the aggregate effects of criminal acts on the economy, but in Morrison the majority held that was constitutional overreach.

In the majority opinion in Lopez Chief Justice William Rehnquist said the law was “invalid as beyond Congress’ power under the Commerce Clause.” The “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce,” the opinion said.

In Morrison, Justice Steven Breyer penned a dissent making the very point Obamacare critics make. It’s impossible to formulate a rule, he wrote, that allows Congress to, say, outlaw growing marijuana for your own consumption but not violence against women. “Virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State,” Breyer wrote. Instead of being a defect, the idea of almost unlimited Commerce Clause powers is a fact of the modern world.

But Breyer lost that argument. The majority “wanted a limiting principle” on Congress and came up with one by deciding that federal laws can regulate a lot of seemingly uneconomic activity but must have a firm economic basis at their core.

To answer the broccoli question, when the Court hears the healthcare case the justices could rule that requiring people to buy insurance fulfills an interstate regulatory scheme, while forcing them to eat broccoli is too distant from any rational economic goal.

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Health Care Battle Brings Calls for Recusal

According to a recent report from United Press International, The U.S. Supreme Court, with it’s 5-4 conservative majority, may be poised to make major changes to the national healthcare reform law when it rules next year on a challenge brought before it by 26 sates. Such a move by the Court could also deal an important blow to President Obama’s re-election chances. The significance of the case and its possible political ramifications have caused scrutiny of the justices themselves.

For instance, some Republicans are demanding that Justice Elena Kagan recuse herself from the case because, before she was named to the Court, she served as the Obama administration's top courtroom lawyer when the Patient Protection and Affordable Care Act was brought before Congress.

Justice Kagan is also reported to have emailed a friend and former colleague, Harvard Law professor Larry Tribe, expressing her excitement over the bill’s passage.

Not just Republicans are concerned about potentially tainted justices, some Democrats are demanding Justice Clarence Thomas withdraw from the case because of his wife’s links to organizations dedicated to overturning the healthcare law.

Democrats have also seized on news that on the same day the Court decided to accept the challenge, Thomas and Justice Antonin Scalia were attending a dinner sponsored by the law firm that will be arguing the case before the Court, the Los Angeles Times reported.

According to the Politico, many experts asked about the matter dismissed the calls for Justice Thomas’s recusal and generally agreed that his wife’s activities would come into play only if she had a financial interest at stake in the case, which she does not. Even a former member of the Obama Counsel’s office did not consider it “fair to ask him to recuse himself merely because his wife is active in groups opposing the law.”

Those same experts also agreed that Kagan cheering on passage of the health care law did not mean much and that justices are permitted to have and to express personal views on issues before the Court. Even though some conservatives have seized on the fact that Kagan’s email to Tribe contained two exclamation points — “I hear they have the votes, Larry!!” — her excitement over the bill’s passage does not rise to the level of conflict and would thus not require her to recuse herself from the case.

Kagan, however, was more than just excited about the bill. She was also the head of the office that would have to defend the law in the case of a constitutional challenge. It is this position and her role, if any, in preparing the Obama administration’s defense of the law, that may lead to increased pressure to distance herself from the case. The rule of thumb is that a judge should not participate in a case if he or she was involved in it as a government attorney. Kagan stated in her Senate confirmation hearing that she was not involved in preparing a potential defense of the law. But some internal emails that have been released indicate that she was at least asked about the question, even though she was too cagey to answer the questions over email and suggested a phone conversation instead.

It’s the appearance of a conflict here that prompts many to say the Justice should recuse herself. However, as one former White House Counsel member put it, in the end “justices recuse when they want to recuse, and there’s nothing we can do about it.” Moreover, if Kagan were going to recuse herself, it would almost certainly have been noted in the order issued by the Court upon accepting the case.

Despite the calls from both sides none of the justices have given any indication that they are willing to step down before the challenge is heard for five and a half hours in March 2012.

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Photo Credit: Flickr/DonkeyHotey/image linked

U.S. Supreme Court to Examine Potential Prosecutorial Misconduct

The United States Supreme Court heard a case recently dealing with the appeal of a death-row inmate from Louisiana. The Defendant, Juan Smith, argued that the Prosecutors wrongfully withheld favorable evidence from Smith's lawyers during the course of his trial. The well-known precedent set by the Supreme Court nearly 50 years ago of Brady v. Maryland requires the prosecution to disclose any evidence that is material to a defendant's guilt or innocence.

Smith argued for a new trial due to the withholding of evidence. What is interesting about his case is that it involves prosecutors from New Orleans. According to Smith's lawyers, courts have overturned 4 death sentences due to violations of Brady. In fact, this case involves prosecutors who worked for Harry Connick, Sr., a prosecutor who has already gone before the Supreme Court with allegations of misconduct. An opinion issued by the Supreme Court in March involved the question of whether prosecutors can be held civilly liable for their misconduct. That case involved Harry Connick Sr. and whether he adequately trained his staff to turn over evidence to defense attorneys. The defendant in the criminal case, John Thompson, spent 14 years on death row before being exonerated. He successfully sued the prosecutor's officer and received a $14 Million award.

The Supreme Court stripped Mr. Thompson of his award, holding that he failed to prove a pattern of deliberate indifference by the prosecutor's office. One instance of misconduct was not enough to hold the prosecutors liable.

While Juan Smith is only arguing for a new trial, if the court grants it, will that provide enough examples of deliberate indifference? Will Harry Connick, Sr. and his office survive another civil liability suit? It should be interesting, but the Supreme Court will first decide whether Smith deserves a new trial.

We reported on this case in March, Thompson case link here, and the Washington Post reported on Juan Smith's case a few weeks ago, and WP reported on the Thompson case earlier this year.

TN Attorney General Opinion Nov. 15, 2011

The following opinion and link to analysis below discusses administrative rules and the Tennessee Department of State. A question that only a law librarian could love.


QUESTION
 How does the judicial invalidation of an amendment to an administrative rule affect the manner in which the rule is published by the Tennessee Department of State?


OPINION
 When an amendment to an administrative rule is judicially invalidated, then the previously existing rule is reinstated and should be published by the Tennessee Department of  State.


Link to full publication: Publication of Rule Following Court’s Invalidation of Rule Amendments 

Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine

  The memorandum linked below estimates the impact on crack cocaine offenders currently incarcerated in the federal prison system of the Fair Sentencing Act of 2010 (the “FSA”) if the United States Sentencing Commission (the “Commission”) were to permanently  amend the federal sentencing guidelines to incorporate the statutory changes made by that act and make the guideline amendment retroactively applicable to offenders currently incarcerated in the federal prison system. 

• Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 201

Officials hold secret meeting on Occupy Chattanooga

The Tennessean reports Officials hold secret meeting on Occupy Chattanooga."Hamilton County commissioners held a secret meeting with their attorney on Friday to discuss Occupy Chattanooga protesters, possibly signaling a determination to make some move against them. The state’s Open Meetings Act requires most meetings of local officials to be open to the public, but the Tennessee Supreme Court has said public bodies can meet privately with an attorney about pending or contemplated litigation. County Attorney Rheubin Taylor told the Chattanooga Times Free Press that the topic discussed Friday did not involve a suit now in litigation."



Below is a clip from the city council meeting on the Occupy Chattanooga protesters. (The audio clears up after a little bit.)

Chattanooga Times Free Press reports today, "Some of the protesters say they expect to be occupying for a year, maybe more. But as of this morning, they have slept out there for just 12 days, and winter’s worst is yet to come. Occupy Chattanooga has so far avoided the arrests and animosity with police that some Occupy groups in other cities across the nation have experienced. The local group started with meetings and discussions about issues from universal health care to banking regulations. It held two protest events, one outside a fundraising event for U.S. Rep. Chuck Fleischmann, R-Tenn., and the other in support of living wages, better education and immigration reform.

Submitting Evidence from Social Networks

How to authenticate evidence from social networking websites is a relatively new issue for the courts. The following link is to an academic paper that gives an overview to the issue and describes four of the most common approaches taken by courts across the country. One approach looked at and criticised is Tennessee's approach. Click here for article.

Ira P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN.

The Tennessee Court of Appeals used a different approach to authenticating social-networking postings and messages. It found that a message was properly authenticated when the recipient testified under oath that the posting accurately reflected the communications she had with the defendant.109 In Dockery v. Dockery, a woman had a “‘no contact’ order of protection” issued against her ex-husband after multiple instances of alleged domestic violence.110 The ex-husband later attempted to contact her by sending MySpace messages to her friend.111 In the lower court proceeding, the recipient of the MySpace messages testified that she printed the conversations “directly from her computer” and that the printouts accurately reflected their conversation while “identif[ying] which party to the conversation was making a particular statement.”112 The court found her testimony alone sufficient to authenticate the messages as authored by the defendant; that finding was upheld on appeal.113 By relying solely on the recipient’s testimony, the court failed to address the obvious reliability concerns with the MySpace messages. The court did not address the possibilities that the documents could have been altered, that the proponent could have been lying, or that someone other than the defendant could have authored the messages. The court’s failure to make these basic inquiries undermined the fairness of the ultimate outcome of the case because potentially unreliable, inculpatory evidence was admitted against the defendant.

Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony

• Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony

In oral arguments yesterday in Perry v. New Hampshire, the Supreme Court seemed unpersuaded that the Court should view problems with eyewitness testimony any differently than other types of evidence.  Below is Adam Liptak's article with a link to the oral arguments.

By ADAM LIPTAK— Though studies and lower court decisions have found that eyewitness testimony can be both unusually problematic and unusually persuasive, the Supreme Court on Wednesday did not seem inclined to rule that the Constitution requires judges to view such evidence with special skepticism. Ordinary trial procedures, several justices suggested, should be adequate to address the potential unreliability of eyewitness identifications.

U.S. Supreme Court to Hear Arguments Regarding Ineffective Counsel and Plea Agreements

The New York Times reports that the U.S. Supreme Court will hear arguments regarding the effect of ineffective counsel involving plea agreements on a defendant's constitutional rights. The Sixth Amendment is a regular topic of conversation in the criminal law realm. It is most known for its guarantee of effective counsel to all defendants. As many know, ineffective counsel at trial is grounds for an appeal and potential reversal of a conviction.

The upcoming issue before the Supreme Court involves ineffective counsel in the context of guilty plea agreements. Anthony Cooper, one of the defendants involved in the cases before the Court, was told by his attorney that because his four bullets had impacted his victim below the waist, he could not be convicted of assault with intent to murder. Because of this advice, Cooper rejected a plea agreement sentencing him to 4-7 years. He was later convicted at trial, and is now serving a sentence of 15-30 years. Another defendant, Galin Frye, was not informed of a plea offer by his attorney that called for a mere 90 days in prison. Once he learned of it, the agreement had expired, forcing him to agree to another plea which carried a 3-year sentence.

The Prosecutors for the two defendants have put forth interesting arguments. They have argued that the 6th Amendment only ensures the defendant a fair trial. While a defendant is entitled to a fair trial, no defendant is guaranteed a plea offer. The Prosecutors also admitted that while the conduct of the attorneys for both defendants fell below the standards of professionalism, they could not turn back time. In other words, the fact that the attorneys for the defendants were ineffective involving the plea bargains for their clients is not their problem.

A factor likely to be considered by the Court is how plea agreements should be regulated. Because they are so unbelievably common in the everyday conversations of criminal attorneys, effective regulation may seem impossible. However impossible it may seem, many argue that constitutional regulation is imperative.