Plea Bargaining, Just as it Ever Was?

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Mayhew-Hite Report on Dispute Resolution and the Courts


Newspaper articles and constitutional scholars have called the recent U.S. Supreme Court cases of Missouri v. Frye and Lafler v. Cooper “landmark” and “game-changing” as the cases held that defendants have a right to competent assistance of counsel during plea bargaining. Beyond the constitutional and appellate court implications, will these cases make a difference in the day-to-day practice of plea bargaining? My first reaction, as a former Deputy Public Defender in Los Angeles was to scoff and say, “no way!” Any competent defense lawyer knows better than to do as Frye’s lawyer and fail to convey an offer, which is a basic ethical duty of all lawyers. Likewise, every first-year law student should understand how wrong Lafler’s lawyer was to advise his client that the prosecutor would not be able to prove an attempted murder charge because the four shots he fired landed below the victim’s waist and not above. However, on further reflection, I think these cases may lead to some changes in plea bargaining practice, in large part due to how judges and prosecutors are reacting.

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Ohio State University Moritz College of Law