What are a criminal defendant’s 6th Amendment rights in a world of plea incentivizing?

Imagine the following scenario: John Doe has been accused of narcotics sales by Assistant District Attorney Brown. Mr. Brown meets Mr. Doe’s court-appointed attorney, Jack Smith, and offers a plea bargain which would result in a maximum sentence of 2 years.

As it is his Office’s policy to incentivize pleas prior to indictment, Mr. Brown makes the plea offer available only until the matter is presented to a grand jury in two weeks. As the deadline for acceptance of the plea offer approaches, Mr. Smith is on vacation and his colleague, Ms. Jones, handles the case instead. As Mr. Smith has failed to adequately document prosecutor Brown’s plea offer, Ms. Jones tells Mr. Doe that his choices are to plead guilty as charged or go to trial. Mr. Doe pleads guilty and receives a 7 year sentence.

This unfortunate scenario and its corollary, going to trial on defense counsel’s flawed evaluation of the strength of the prosecution’s case, play out with maddening frequency in courtrooms all over the country. Their Sixth Amendment implications were argued to the United States Supreme Court on October 31, 2011 in Lafler v. Cooper and Missouri v. Frye.

Was Mr. Doe been deprived of his right to effective representation of counsel? Probably. What is the appropriate remedy? Order the prosecutor to make the 2 years available again? What of the separation of powers? On what legal theory can an appellate court order a prosecutor to make available a plea offer after it has been rejected?

When a defendant enters a valid guilty plea or is convicted after a fair trial, there is no legal remedy which can answer the client’s valid Sixth Amendment claims and still preserve the finality necessary to keep the appellate court system from being flooded with cases for which a plea colloquy was merely the prelude to an extended legal challenge. I expect the Court to cite this public policy argument and decline to overturn the convictions.