In a case from Missouri, the U.S. Supreme Court this week extended the defendant's right to an effective lawyer to include plea bargaining negotiations. The 5-4 decision is one of the most significant recent expansions of the Sixth Amendment right to an effective lawyer.  It expands the role of judges in reviewing plea negotiations, which settle 95 percent of all criminal cases.

Justice Antonin Scalia blasted the decision as opening the door to massive litigation that amounts to "retrospective crystal-ball gazing posing as legal analysis." Under the decision, judges must determine if a defendant would have accepted the plea bargain, whether a prosecutor would not have withdrawn it and whether a judge would have accepted it.

The case of Missouri vs. Frye involved Galin Frye, a former Forest Park Community College student, who lives in Columbia, Mo. Frye's public defender had failed to tell him of an offer to allow him to plea bargain for 10-90 days behind bars. Instead, Frye pleaded guilty and was sentenced to three years. Justice Anthony M. Kennedy, joining the court's four most liberal justices, ruled a lawyer's failure to tell a defendant about a plea bargain was clearly a mistake.

Start of update: Some legal experts described the decision as the greatest revolution in criminal justice since Gideon vs. Wainwright, the 1963 decision guaranteeing a defendant a lawyer.

But Susan McGraugh, a Saint Louis University Law School professor and supervisor of the Criminal Defense Clinic, doesn't see it as that monumental. "I would not compare it to Gideon," she said in a telephone interview. "Gideon was a game changer, but this is a warning that there is going to be more scrutiny of plea bargains in the future and we all need to tighten up our game."

McGraugh said the decision should be read as a warning to the Missouri Legislature that it should better fund public defenders. "It is a way for the court to say that if you don't give them the money to do this the right way in the first place, then we are going to make you start over and it will cost more in the long run."

McGraugh doubted that the decision would require a great deal more work. When a judge is accepting a plea, "it's one or two extra questions and if someone is agreeing to go to prison, do we really care that it will take five minutes longer? We are not supposed to do things quickly so much as accurately.

"Prosecutors should be putting their recommendations in writing, they should ‘cc’ the court file on these things. Then when the court opens the court file and reviews it for a plea, the judge will see it.  I teach my students to write a paper trail," she said.

Stephen C. Thaman, another Saint Louis University law professor, wrote in an email that he too supported the decision "as it is true that jury trial is almost irrelevant in the U.S. today and that the plea bargaining system is so coercive that it is very risky to go to trial because the differences in the offered punishment and what one can get when losing the trial are so huge that nearly everyone shies away from a trial. Therefore, if a lawyer doesn't convey a good offer to a client, or misinforms the client about the magnitude of the gap between offer and maximum, then the defendant who 'unknowingly' goes to trial is running a real risk." End update.

St. Louis Circuit Attorney Jennifer Joyce said in an email on Thursday that her office already has a policy of maintaining a written record of communication of plea offers to defense attorneys.

"I will ask my staff to brainstorm with me as to whether there is anything that we, as prosecutors, could do to further ensure that defense attorneys timely communicate those offers to their clients.  As you know, prosecutors are not allowed to converse with represented defendants (scenes from TV’s "Law and Order" notwithstanding). Therefore, we can’t directly convey offers to defendants who have attorneys. In those rare cases where defendants are pro se, most judges spend a considerable amount of time reviewing all the ramifications of a guilty plea with the defendant. In our experience, the vast majority of defense counsel we work with adhere to this practice already."

Frye was picked up August 2007 for driving without a valid license. It was the fourth time he had been caught for the same offense so he was charged with a felony carrying the possibility of four years in prison.

In late 2007, the prosecutor offered Frye's public defender, Michael Coles, a plea bargain with two options: Frye could either plead guilty to the felony with the prosecutor recommending three years probation and 10 days of shock imprisonment in the Boone County jail, or the charge could be reduced to a misdemeanor with Frye serving 90 days in the Boone County jail.

By this time, Frye was living in St. Louis. Coles did not tell him about the prosecutor's offer, and it expired. Two days after it expired, Frye was picked up a fifth time for the same violation. The following March, Frye -- never having been told about the plea bargain -- pleaded guilty in court. The prosecutor recommended a three-year sentence, made no recommendation on probation and asked for 10 days of shock imprisonment. The judge sentenced him to three years in prison. Frye appealed claiming that his Sixth Amendment right to effective assistance of counsel had been denied because he hadn't known about the lenient plea offer. The Missouri Court of Appeals for the Western District agreed.

Attorney General Chris Koster appeared personally in the Supreme Court last fall to argue the case. Koster argued that there is no Sixth Amendment right to a particular plea bargain. After all, a prosecutor can withdraw a plea bargain at any time.

Justice Anthony Kennedy said that Koster's arguments were not without force said but "they do not suffice to overcome a simple reality." Ninety-seven percent of federal cases are resolved with plea bargains and 94 percent of state cases.

"The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages," he wrote.

Kennedy said there was no doubt that Frye's public defender had made a mistake. "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," Kennedy wrote.

But to make an ineffective assistance of counsel claim, a defendant has to prove not only that his lawyer made a mistake but also that it prejudiced him.

To prove prejudice, Kennedy wrote, a defendant in Frye's position has to show he would have taken the plea offer, that the prosecutor would not have withdrawn it and that the court would have accepted it.

Kennedy sent the case back to the Missouri appeals court. But he suggested Frye might have a steep road to climb because his fifth violation might have caused the prosecutor to withdraw the plea or the judge to refuse it.