In a pair of recent decisions Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that criminal defendants have the right to effective assistance of counsel during the plea-bargaining process, the means by which 97 percent of federal cases and 94 percent of state cases are resolved. Legal scholars were quick to describe the decisions as “bold” and “huge.” See Erica Goode, “Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals,” N.Y. Times, March 22, 2012, at A12. Wesley M. Oliver, a professor at Widener University School of Law, even went so far as to assert that Lafler and Frye “constitute the single greatest revolution in the criminal justice system since Gideon v. Wainwright,” the landmark 1963 case in which the Supreme Court held that criminal defendants must be provided an attorney when they can’t afford to hire their own. See Adam Liptak, “Justices’ Ruling Expands Rights of Accused in Plea Bargains,” N.Y. Times, March 21, 2012, at A1.
Lafler and Frye no doubt provide an important remedy to criminal defendants who didn’t receive effective assistance from their lawyers in plea negotiations and, thus, were subjected to less favorable outcomes. But neither decision provides any real support to attorneys actually looking to effectively help their clients decide whether or not to go to trial. Rather, only changes in the rules governing governmental disclosure obligations will.
