Douglas County prosecutors and defense attorneys Thursday were still digesting new standards for criminal plea bargains one day after a landmark U.S. Supreme Court decision that involved two cases.
Thursday morning in one Douglas County case, Eve Kemple, an assistant district attorney, told District Judge Michael Malone in open court she had made a plea offer to defendant Raymond C. Morgan in a 2010 Lawrence robbery case.
Morgan, 28, of Kansas City, Kan., told Malone in court he had received the plea offer and rejected it. His defense attorney Jason Billam also explained in court he had printed an email from Kemple that outlined the plea offer and also gave Morgan a copy of his response to the offer.
Plea negotiations now come under constitutional scrutiny because a divided Supreme Court ruled Wednesday that convictions can be overturned if defense lawyers don’t adequately assist clients in deciding whether to accept such offers.
The rulings, which were 5-4 and crafted by Justice Anthony Kennedy, mean that criminal defense lawyers are now required to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must give their clients good advice on whether to accept a plea bargain at all stages of prosecution. If they don’t, Kennedy said, they will run afoul of the Sixth Amendment guarantee that criminal defendants have a right to assistance of counsel.
Justice Antonin Scalia in dissent said plea bargaining is not “covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction.”
Kemple said Thursday the district attorney’s office would form a committee to closely examine the Supreme Court rulings.
“We’re going to try to have a discussion about what are things that we can do and what we can ask the court to do,” she said. “We’re in the investigative stages and trying to figure out the impact on our cases and on our victims.”
The main ramification for prosecutors appears to be if appellate courts overturn cases involving plea deals for ineffective assistance of defense counsel, prosecutors would likely then have to retry the cases.
Kemple said she was confident Billam had properly notified his client about the offer, but because the decisions came down one day earlier she wanted to mention the rejected plea offer so it would be in the court record.
Billam said in an interview he likely would begin to put more information about plea negotiations in writing to make a record of what he communicates with his clients about every plea offer he receives. Currently most of his communication is done verbally where he explains to clients the pros and cons of their case and how much time they face in certain circumstances.
“It’s never the attorney’s decision if something goes to trial,” Billam said. “I can’t make them plea, and I can’t make them go to trial.”
The Associated Press contributed to this report.