Justin Marceau, "Embracing a New Era of Ineffective Assistance of Counsel"

Article. Abstract:

The recent decisions in Missouri v. Frye and Lafler v. Cooper represent a seismic shift in the Court’s right to counsel jurisprudence. No longer is the right to counsel limited to protecting the
fairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue.

This Article identifies the salient features of this new — non-trial oriented — conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law.

Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event.

Comments

[Rick Underwood]

It seems to me that this argues in favor of a position that waivers of ineffective assistance of counsel claims in plea bargain agreements are improper - prosecutors should not ask for them, and defense lawyers have a conflict in advising them. Of course, I am probably missing something. Help me out on this Monroe?

[mt45]

And after Martinez v. Ryan, it appears any defendant can raise ineffective assistance of counsel claims for the first time in federal habeas corpus proceedings.

I'd like to see ineffective assistance of counsel have the same stigma and consequences (including possible bar sanctions) that come with prosecutorial misconduct. IAC can be just as damaging to the rights of a defendant as prosecutorial misconduct, even where both involve "innocent" mistakes. If a defense attorney can't provide the level of assistance of counsel that the constitution requires, they shouldn't be defense attorneys.

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