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Effective Assistance and Plea Bargaining

Now here is something you don't see every day.  Or every term.  In a Supreme Court argument, counsel for the certiorari petitioner has 8 minutes reserved for rebuttal.  He says 82 words and asks if the Court has any questions. Nope. End of argument. Not a good sign for the other side.

So went Premo v. Moore, today's case on ineffective assistance before a plea bargain.  The transcript is here. The claim is that the lawyer was ineffective for not moving to suppress a confession.  The Attorney General of Oregon concedes that earlier in the litigation they forfeited the argument that a motion to suppress was meritless and would not have been granted.  That was a mistake but probably not a fatal one.  Counsel for defendant got beaten up on the "prejudice" point.  There is not a reasonable probability of a better outcome for the client in any event.  They had him nailed on kidnapping, and the victim indisputably died during that kidnapping.  That is all the state needs for felony murder and the 25 year sentence the defendant received.

Looks like a win for the state, possibly 8-0, and yet another Supreme Court reversal for Judge Reinhardt.


"There is not a reasonable probability of a better outcome for the client in any event."

And there was a significant possibility of a far worse outcome for Moore had he chosen to go to trial. Defense counsel likely thanked his lucky stars for the plea offer.

Note that the FPD, Wax, conceded on page 28 that the Ninth Circuit panel got the law wrong.

Take that, Judge Reinhardt.

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