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March 20, 2013

"Lafler and Frye: A New Constitutional Standard for Negotiation"

The title of this post is the title of this new paper by Rishi Batra, now available via SSRN.  Here is the abstract:

In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated 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.”  This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains.  It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains.  Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain.  For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance.  It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.

March 20, 2013 at 09:49 PM | Permalink


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"Well sir, while I have a great respect for the law, can't a...can't say the same for lawyers, myself included. For a lawyer, justice is inconsequential; victory is paramount.--"Goodnight Justice", 2011, by Tippi & Neal Dobrofsky

Posted by: Adamakis | Mar 20, 2013 10:34:50 PM

In the federal criminal context, this raises significant issues about discovery practices in the plea negotiations phase. The likely sentence to be imposed at the end of a plea negotiation is one of the most, if not the most, important issues a defendant considers in accepting or rejecting a plea offer. But much of the evidence that comes in at sentencing is not considered by many prosecutors to be "discoverable" in the guilt/innocence phase because it is not probative of the charged count(s). But at the sentencing phase, when relevant conduct comes into play, relevant conduct facts often come out of the woodwork. Has a defense lawyer who has failed to advise her client about the relevant conduct implications on their likely sentence violated the standard of practice? What if she makes specific requests for materials and is rebuffed during plea negotiations because they are not probative of guilt or innocence on the charged count? Does the effectiveness of counsel depend on whether she has been able to evince the relevant conduct facts from her own interrogations of her clients?

Posted by: AFPD | Mar 21, 2013 10:31:26 AM

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