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38 Am. J. Trial Advoc. 121 (2014-2015)
After Frye and Lafler: The Constitutional Right to Defense Counsel Who Plea Bargains

handle is hein.journals/amjtrad38 and id is 129 raw text is: After Frye and Lafler: The Constitutional Right to Defense Counsel Who Plea Bargains Todd A. Bergert Abstract In Missouri v. Frye and Lafler v. Cooper, the United States Supreme Court dramatically altered the landscape of the Sixth Amendment guarantee of effective assistance of counsel in the plea bargaining context by extending that right into the plea bargaining process itself. This Article establishes that after Frye and Lafler the failure to participate in the plea bargain ing process violates the Sixth Amendment's guarantee of effective assistance of counsel and setsforth the appropriate analytical framework under which such claims should be analyzed. Introduction . ............................................... 122 I. Strickland Requires Defense Counsel to Affirmatively Initiate Plea B argaining ......................................... 135 A. A Legal Overview of Strickland's Performance Prong ........ 137 B. The Benefits of Plea Bargaining ......................... 138 C. Criminal Defense Standards and Guidelines in the Plea Bargaining Process .................................... 140 D. Padilla v. Kentucky Implicitly Endorses Counsel's Obligation to Initiate Plea Bargaining ............................... 143 II. Weatherford v. Bursey Carries Little Weight When Reviewing Sixth Amendment Claims of Ineffectiveness Assistance of C ounsel . ............................................ 146 A. A Legal Overview of Weatherford ....................... 146 B. The Defendant's Right Is to Be Represented During Plea Bargaining, Not to Receive a Plea Bargain ................. 148 B.A. (2000), George Washington University; J.D. (2003), L.L.M. (2007), Temple University School of Law. Todd Berger is an Assistant Professor of Law and Director of the Criminal Defense Clinic at Syracuse University College of Law. The author would like to thank those who participated in the Syracuse University College of Law Faculty and Junior Faculty Workshops for their helpful comments and suggestions in reviewing this piece. Additionally, the author wishes to thank Professors Mary Helen McNeil and Gary Pieples for their thoughtful critiques of this work and Amy Armstrong for her invaluable editing and research assistance. The author also thanks Hedimay Berger for the many hours spent proofreading. Lastly, the author extends his thanks to Beverly Beaver not only for reading many drafts of this Article, but for her unyielding patience in the process.

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