Excerpt:
Unfortunately, some state and federal prosecutors’ response to Lafler and Frye’s application of the Sixth Amendment right to effective assistance of counsel during the plea stage was to demand the waiver of that right.27 We contend that effective assistance of counsel waivers are unjust and could topple our current plea bargaining system; therefore, the Court and the Department of Justice should not have condoned them.28 In Part II of this essay, we will describe the growth of non-trial-related waivers. We will focus here on two waivers that have not yet been ruled on by the Court: waivers of the due process right to obtain exculpatory evidence as to guilt and punishment and waivers of the Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. In Section A, we offer the results of an empirical project that Professor Klein undertook at the United States Sentencing Commission, counting discovery and habeas corpus waivers. In Section B, we report Defender Elm’s national survey of all waivers contained in federal plea agreements. In Section C, we examine post-Lafler and Frye state and federal case law regarding pre-trial waivers of effective assistance of counsel. In Part III, we argue that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.