Tuesday, November 4, 2014
The Connecticut Law Review will host its Fall Symposium on November 14, 2014, at the law school. The symposiuim is titled "The 50th Anniversary of Griswold v. Connecticut, Privacy Laws Today." The description reads:
Connecticut Law Review presents a symposium every fall to discuss an opportune topic of law. This year, the symposium will address the 50th anniversary of the Supreme Court's decision in Griswold v. Connecticut, exploring the history of the right of privacy through the present day. There will be three main topics discussed: the history of the right to privacy, privacy as sexual autonomy, and privacy as reproductive freedom. The keynote address will be provided by Professor Reva Siegel of Yale Law School.
The website says the symposium is free for those who RSVP by November 10.
Thursday, October 23, 2014
I have posted Effective Plea Bargains for Noncitizens on SSRN. Here is the abstract:
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.
I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April. The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.
Friday, March 21, 2014
Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional. The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).
The statute reads:
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or
(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.
The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied. The court observed that the law's stated purpose was to protect conversational privacy. The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy." The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Therefore, the recording provision violates the first amendment on its face. The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).
The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point. Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party. The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure."
In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):
The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.
Saturday, March 15, 2014
The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively. In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age. The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).
A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery. The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict. Maxwell was 17 when the crime occurred.
The court decided the case 5-4 and generated short two dissents (see here and here). This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity. We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.
Friday, March 14, 2014
In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.
The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014).
Tuesday, March 4, 2014
Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN. The article is forthcoming in the Hofstra Law Review. Here is the abstract:
Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.
To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.
Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area. Such such claims are frequent in the criminal system, and are frought with ethical landmines. Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim? This is a serious question attorneys and courts must address in such cases.
Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient. He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim. The paper is also useful to judges that issue orders compelling responses to such claims. I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.
Monday, February 24, 2014
The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act when it prohibited her from using the girls’ communal restroom at school.
- See more at: http://legalclips.nsba.org/2014/02/06/maine-supreme-judicial-court-rules-in-favor-of-transgender-student-on-bathroom-issue/?utm_source=NSBA+e-Newsletter+Subscribers&utm_campaign=f0060b79c1-Legal+Clips+Newsletter&utm_medium=email&utm_term=0_498fb22860-f0060b79c1-309615025#sthash.kTjL9NbB.dpuf
Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)
Tuesday, October 29, 2013
The Georgia Law Review will host its Fall 2013, symposium, "The Press and the Constitution 50 Years after New York Times v. Sullivan," on November 6, 2013, at the campus. The keynote speaker is Supreme Court Justice John Paul Stevens. The agenda and registration information is here.
Thursday, October 24, 2013
Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013). His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.
Monday, September 30, 2013
Sunday, September 15, 2013
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
Monday, July 22, 2013
We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech and
associational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.
Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’s
Ass’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“The
First Amendment’s protection of the right of association extends to labor union
However, we have never articulated a standard for determining whether, and under
what circumstances, a public entity’s employment decisions violate this right to associate
in unions. With respect to a public employee’s right to associate with political parties, the
Supreme Court stated in Rutan v. Republican Party of Illinois that government employers
may not “condition hiring decisions on political belief and association . . . unless the
government has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.
Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders because
they were not affiliated with Democratic Party violated First Amendment); Elrod v.
Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged they
were discharged because they were not members of sheriff’s political party stated a First
Amendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)
(invalidating state university system’s prohibition on membership in Communist Party).
The Supreme Court was concerned that the government would “wield its power to
interfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,
and noted that “conditioning public employment on the provision of support for the
favored political party ‘unquestionably inhibits protected belief and association,’” id. at
69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political party
affiliation was subject to strict scrutiny and must be “narrowly tailored to further vital
government interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16
(requiring “an overriding interest of vital importance” to fire a public employee solely for
his private beliefs (citation and internal quotation marks omitted)).
Conditioning public employment on union membership, no less than on political
association, inhibits protected association and interferes with government employees’
freedom to associate. It is therefore subject to the same strict scrutiny, and may be done
only “in the most compelling circumstances.” Rutan, 497 U.S. at 76.
Mitchell H. Rubinstein
Tuesday, July 9, 2013
The New Jersey Supreme Court issued an important just compensation decision yesterday in Borough of Harvey Cedars v. Karan, No. 070512 (N.J., July 8, 2013).
In this case, the borough condemned part of the Karan's beachfront residential property to construct 22-foot high dunes to serve as a barrier against storm tides. All parties agreed that the Karans' were entitled to just compensation - the case turned on what evidence should be admitted in determining that just compensation.
At trial, the court allowed the Karans' evidence relating to lost value due to the dunes obstructing their "oceanfront vista." The trial court denied, however, the borough's evidence relating to the enhanced value for the Karans' property attributed to the added storm protection afforded by the dunes. In the trial court's view, the storm protection constituted a general benefit. The issue before the court was whether or not the cost incurred by the Karans, the part taken plus damages to the remainder, should be offset to the benefit the Karans might receive from dune project.
The Supreme Court reversed the trial court. The court rejected the 19th century general benefits/special benefits dichotomy to hold that "just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking." The trial court erred, according to the opinion, but allowing the jury to hear evidence relating to the lost value due to the dunes, but not evidence relating to increased storm protection that would potentially enhance value.
This opinion, issued unanimously, is a lengthy and detailed one and includes some history about just compensation law and the general damages/special damages rule. We cover this issue in my Damages course so I will be incorpating either this case or the concepts this fall semester.
Friday, July 5, 2013
The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright. This issue includes:
- Why Civil Gideon Won’t Fix Family Law, Rebecca Aviel;
- Gideon Exceptionalism?, John H. Blume and Sheri Lynn Johnson;
- Fifty Years of Defiance and Resistance After Gideon v. Wainwright, Stephen B. Bright & Sia M. Sanneh;
- Poor People Lose: Gideon and the Critique of Rights, Paul D. Butler;
- Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services, Jeanne Charn;
- Race and the Disappointing Right to Counsel, Gabriel J. Chin,
- Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law, Martha F. Davis;
Gideon’s Migration, Ingrid V. Eagly;
- Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda, Roger A. Fairfax, Jr.;
- Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?, Bruce A. Green;
Valuing Gideon’s Gold: How Much Justice Can We Afford, M. Clara Garcia Hernandez & Carole J. Powell;
- Investigating Gideon’s Legacy in the U.S. Courts of Appeals, Emily Hughes;
- An Immigration Gideon for Lawful Permanent Residents, Kevin R. Johnson;
- Gideon at Guantánamo, Neal Kumar Katyal;
- Enforcing Effective Assistance After Martinez, Nancy J. King;
- Gideon’s Law-Protective Function, Nancy Leong;
- Gideon’s Shadow, Justin Marceau;
Gideon at Guantánamo: Democratic and Despotic Detention, Hope Metcalf & Judith Resnik;
- Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures, Pamela R. Metzger;
- Federal Public Defense in an Age of Inquisition, David E. Patton;
- Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures,
Eve Brensike Primus;
Implicit Racial Bias in Public Defender Triage, L. Song Richardson & Phillip Atiba Goff;
- Effective Plea Bargaining Counsel, Jenny Roberts;
Lessons from Gideon, Erwin Chemerinsky; and
Gideon at Fifty: A Problem of Political Will, Carol S. Steiker
Tuesday, May 28, 2013
Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN. Here is the abstract:
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.
This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.
Tuesday, May 21, 2013
Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause. But can the government open such legislative sessions with prayers exclusively with one faith? The Supreme Court will decide this question next term in Town of Greece v. Galloway. Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause. Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:
The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.
What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”
It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.
Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.
Wednesday, May 8, 2013
In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness. Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.
The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6). The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.
The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes. Defendant argued that for this reason, the records were not business records - records kept for a business purpose. The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business. The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business." Slip Op. at 5.
Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights. The majority rejected this argument also. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.
The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason. The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.
This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.
Monday, May 6, 2013
Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
This Essay is forthcoming in the Yale Law Journal.
Thursday, April 25, 2013
Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days. I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here:
- Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
- Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
- Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
- Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
- Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
- Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
- Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
- Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
- Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
- Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).
Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments. As an aside, I predict a healthy increase in law review submissions by professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.
Tuesday, April 23, 2013
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.