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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