SIXTH ANNUAL CRIMINAL LAW SYMPOSIUM: THE SIXTH AMENDMENT: PANEL TWO: THE RIGHT TO COUNSEL AT TRIAL: THE FUTURE OF EFFECTIVE ASSISTANCE OF COUNSEL: REREADING CRONIC AND STRICKLAND IN LIGHT OF PADILLA, FRYE, AND LAFLER Skip over navigation
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Copyright (c) 2012 Texas Tech University School of Law
Texas Tech Law Review

SIXTH ANNUAL CRIMINAL LAW SYMPOSIUM: THE SIXTH AMENDMENT: PANEL TWO: THE RIGHT TO COUNSEL AT TRIAL: THE FUTURE OF EFFECTIVE ASSISTANCE OF COUNSEL: REREADING CRONIC AND STRICKLAND IN LIGHT OF PADILLA, FRYE, AND LAFLER

Fall, 2012

Texas Tech Law Review

45 Tex. Tech L. Rev. 229

Author

Richard E. Myers II*

Excerpt



I. Introduction



Two cases decided in March of 2012, Lafler v. Cooper 3 and Missouri v. Frye, 4 when read in conjunction with Padilla v. Kentucky 5 from 2010, suggest that there is significantly more room for judicial intervention in the relationship between defense counsel and the defendant under the guise of the Sixth Amendment than previously thought. 6 These cases, taken together, squarely place the courts in the business of regulating the attorney-client advising relationship, including advice regarding whether or not to accept a plea or go to trial; the forecasts of the risks associated with going to trial and counsel's estimate of the likelihood of conviction; and the potential collateral consequences of conviction. 7



The Supreme Court has opened the doors to the previously privileged conversations, notwithstanding the majority's acknowledgment in Frye that this will be very difficult because no formal court proceedings are involved. 8 This leaves the supervising court and opposing counsel out of the picture. 9 "Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event." 10 It also leaves recounting the details of the conversation to the memories of a probably untrained and inherently biased defendant. 11 The Court dismissed those concerns without meaningful discussion, not because the majority had good answers to offer, but because it felt that the pretrial plea-bargaining system was too important. 12 "[P]lea bargains have become ...
 
 
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