March 21, 2013

New article on Negotiation and Plea Bargaining

By Cynthia Alkon

Rishi Batra, currently a Visiting Assistant Professor at Whittier Law, and soon to be an Assistant Professor at Texas Tech Unveristy School of Law (congratulations Rishi!), has a new article that is being published by the Cardozo Journal of Conflict Resolution: Lafler and Fry:  A New Constitutional Standard For Negotiation, available here .

The abstract is:

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.

 

Last 5 posts by Cynthia Alkon

| Permalink

Comments

  • Art H. says:

    Just read the piece – two thumbs up !!

    Thanks for writing it Rishi.

  • Rishi says:

    Thanks for kind words, Art.

  • Plea bargaining is one of the most important processes in criminal cases. Because 95% of all criminal cases are resolved using negotiation and plea bargaining, a defense attorney must adequately assist his or her client in that process to ensure their constitutional rights are not infringed. Attorneys are required to represent their client competently and diligently. If an attorney does not communicate effectively the possible plea bargains offered by the prosecution the attorney has failed this duty. The consequences of this failure are substantial in that the defendant’s liberty may be taken away for longer than if the attorney effectively communicated the prosecutor’s offers. In the Frye case, the defendant’s counsel was deficient because he did not communicate the written plea offers given by prosecution. I believe the court correctly decided that failure to effectively communicate plea offers is intolerable.

Post a comment

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>