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The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process is at least as important as competence in investigation or trial. Nor is there reason to believe that the decisions will present administrative problems for federal habeas courts. Most of the Circuits have recognized such claims for years, and the lower courts have experienced no more difficulty assessing plea-bargaining ineffective assistance of counsel claims than similar claims regarding trial performance.


Criminal Law | Criminal Procedure | Law