Plea Bargains and Effective Assistance of Counsel

Over at Volokh, Orin Kerr takes a look at the US Supreme Court's recent decisions about effective assistance of counsel in the context of plea bargaining. The two cases deal with scenarios that are familiar in the context of legal malpractice cases arising out of civil litigation. In one, Missouri v. Frye, the prosecutor offered a deal for a limited time but the defense counsel failed to communicate the deal on time. The accused claims that he would have accepted the deal. In the other, Lafler v. Cooper, the accused claims that defense counsel offered bad advice about whether to accept the deal or go to trial. Read the post by Kerr and, for that matter, there lots of discussion of these two important cases around the blawgosphere.

Comments

[Rick Underwood]

I sent this out to our faculty as soon as I saw it. I sometimes feel that everything I teach (trial advocacy, evidence, trial ethics, scientific evidence) is all ancient history, because we don't try cases like we used to - we process people. Sad. In any event, this impacts many courses.

On the other hand, what is it with Scalia. Seems like if you don't pass on plea offers you violate the objective standard of Strickland (Rule 1.2) and the prejudice is rather obvious. So why all the angst?