For some trial judges, figuring out how to adequately oversee effective assistance in plea bargaining is daunting.  There is risk that you invade the attorney-client privilege, and there is risk that you really don’t know the case as a well-prepared defense counsel.  So, when in doubt, try reading:

Using Outcomes to Reframe Guilty Plea Adjudication

Anne R. Traum

University of Nevada, Las Vegas, William S. Boyd School of Law

November 4, 2013

Florida Law Review, Vol. 65, 2014 Forthcoming

UNLV William S. Boyd School of Law Legal Studies Research Paper

Abstract:

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Frye v. Missouri lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to effective counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. This Article traces these significant doctrinal shifts and argues that they supply both impetus and authority for trial courts to regulate guilty pleas by monitoring plea outcomes. This proposal builds on market-based concepts while strengthening the judicial role in safeguarding constitutional values. By monitoring outcomes, courts can detect and correct factors in the plea market, like prosecutorial overreaching and deficient defense counsel, which can distort the parties’ ability to negotiate fair results. Outcomes monitoring is justified for practical reasons because it builds on courts’ expertise and unique place in the plea markets, it can be implemented at the trial court level, it reinforces courts’ traditional sentencing authority, and it can prevent litigation of prejudicial ineffective assistance in post-conviction proceedings.