Friday, June 8, 2012

Ineffective assistance - expanding recognition of plea bargaining's role

Ineffective assistance of counsel - the denial of the fair adversary proceedings contemplated by the Fifth - and especially the Sixth Amendments of the federal constitutions - extends to the plea bargaining process.  The point was obviously made in Padilla v. Kentucky when a veteran and resident alien facing charges for transporting marijuana pled guilty without being advised by his lawyer that deportation would be a result.  This past term has extended that trend in Lafler v. Cooper and Missouri v. Frye,  as I have discussed.  Looking back Dean Erwin Chemerinsky finds them among the most significant of the decisions the court has made in the past year.  Notably the usual 5-4 split was seen with Kennedy tilting left on this issue and Scalia drawing a list of slippery slope horribles.
Chemerinsky: Effective Assistance of Counsel Now a Right in Plea Bargaining - News - ABA Journal:
by Erwin Chemerinsky

As the flurry of end of the term decisions is about to begin from the U.S. Supreme Court, it is important to not lose sight of two cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Fryeand Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned.Both cases were 5-4 decisions, with Justice Anthony M. Kennedy writing a majority opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. In Frye, the defendant was charged with driving with a revoked license. The prosecutor wrote to Frye’s defense counsel and offered two different plea possibilities with a maximum sentence of 90 days in jail. Frye’s lawyer did not communicate the plea offers to his client and Frye was convicted and sentenced to three years in prison.The court concluded that plea bargaining is a “critical stage” of criminal proceedings and thus the right to effective assistance of counsel applies. Justice Kennedy noted that 97 percent of federal convictions and 94 percent of state convictions are gained via guilty pleas.

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