When 95% of criminal cases are resolved in conference rooms, over the phone,
and via email between prosecutor’s and defense lawyers, it is vital that
the lawyer be competent and effective. For the first time in our country’s
history, yesterday the United States Supreme Court extended this 6th Amendment
protection to the plea bargaining process.
Criminal defendants have a constitutional right to effective lawyers during
plea negotiations, the Court ruled on March 21, 2012 in a pair of 5-to-4
decisions that vastly expanded judges’ supervision of the criminal
When bad legal advice leads to defendants rejecting favorable plea offers
is now subject to new constraints.
Now we have a new question in criminal law. What is to be done in cases
in which a lawyer’s incompetence caused the client to reject a favorable
It appears as though this isn’t as easy as rejecting a deal, going
to trial, and if you lose appealing on “ineffective assistance”.
The defendant has to try and prove that he would have accepted the original
offer as well as demonstrate that prosecutor’s would not have later withdrawn
the offer had he accepted it and then prove that the judge would have
accepted it. That’s a huge uphill battle.
So what is the best practice for defense lawyers and their clients? In
my opinion, all offers should be written down, signed by counsel, signed
by the accused, discussed on the record and if the defendant is rejecting
it prior to trial, that the judge have some meaningful dialogue with the