In Missouri v. Frye, the justices held that the constitutional guarantee of a fair trial extends to pre-trial activities such as plea bargains. "This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."
In Lafler v. Cooper, in which there was actually a trial, the same justices explained that defendants are entitled to a remedy when they can show that there is a reasonable probability they would have accepted the plea bargain had they not received bad advice from their lawyer and that the trial court would have accepted the guilty plea. In such cases, the trial court would then have the discretion to replace the stiffer sentence with the plea agreement, to throw out part of the conviction and re-sentence accordingly, or leave the original sentence in place.
Justice Antonin Scalia summarized his dissent from the bench, ridiculing the majority for "its newly discovered constitutional right" and calling the remedies discussed in the Lafler decision "nothing short of extraordinary."
"Nowhere in our constitutional jurisprudence have we ever suggested that the remedy for an unconstitutional conviction could be entirely subject to a trial judge's discretion or that the remedy could ever be no remedy at all," said Scalia.
