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14 U. Pa. J. Const. L. 1161 (2011-2012)
Embracing a New Era of Ineffective Assistance of Counsel

handle is hein.journals/upjcl14 and id is 1171 raw text is: EMBRACING A NEw ERA OF INEFFECTIVE ASSISTANCE OF COUNSEL Justin F Marceau ABSTRACT The recent decisions in Missouri v. Frye and Lafler v. Cooper reprevent a seismic shift in the Court's rght to counseljuisprudence. No longer is the right to counsel limited to protecting the fairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue. This Article identifies the salient features of this new-non-trial oriented-conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law. Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event. INTRODUCTION No longer is the right to counsel limited to protecting the fairness and adequacy of the trial itself. With the Court's decisions in Missouri v. Frye' and Lafler v. Cooper a new era in the jurisprudence of the Sixth Amendment has begun. This Article identifies the salient fea- tures of this new-non-trial oriented-conception of the right to counsel and explains its far-reaching impacts on the day to day prac- tice of criminal law. Frye and Lafler represent the two most significant ineffective assistance of counsel cases since the right was first recog- nized in Strickland v. Washington.' In view of the fact that ineffective * I am grateful to Rebecca Aviel, Alan Chen, and Ian Farrell for their insightful comments and assistance with this project. I am also indebted to Hermine Kallman, Neal McCono- my, and Gabriel Olivares for their research assistance. I would also like to thank the ex- ceptional team of editors that worked on this Article. At the time of writing this article, certiorari had not yet been granted in Lafler and Frye. Only because of the patience and flexibility of this journal was I able to adapt the Article to reflect the import of these deci- sions on my thesis. 1 No. 10-444, slip op. (U.S. Mar. 21, 2012). 2 No. 10-209, slip op. (U.S. Mar. 21, 2012). 3 466 U.S. 668 (1984). See Lafler v. Cooper, No. 10-209, slip op. at 1 (U.S. Mar. 21, 2012) (Scalia,J., dissenting) (describing the two cases as opening a whole new field of constitu- tionalized criminal procedure); see Lafler v. Cooper, No. 10-209, slip op. at 2 (U.S. Mar. 21, 2012) (Scalia, J., dissenting) (noting that the holding is certainly a new rule of law for purposes of constitutional retroactivity); see aLso Missouri v. Frye, No. 10-444, slip op. at 5 (U.S. Mar. 21, 2012) (Scalia, J., dissenting) (describing the cases as inconsistent with the Sixth Amendment and decades of our precedent). In describing these decisions as 1161

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