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Lafler, Part I

An anonymous commenter on Sentencing Law & Policy succinctly states why Lafler is a disaster:

Lafler is potentially revolutionary in that the State is now entirely at the mercy of defense counsel when it offers a plea.

Prior to Lafler, a competent prosecutor could try a clean case and present sufficiently solid evidence that any minor mistake by the trial judge would be a harmless error. Equally, by presenting an overwhelming case at trial, the prosecutor could try to make a solid case that any incompetence by trial counsel would not be [later seen as] prejudicial.

Under Lafler, however, [the same] overwhelming case which defeats a trial ineffectiveness [claim] now helps prove that counsel was incompetent in advising his client to go to trial [in the first place]. I think most prosecutors could have lived with ineffectiveness limited to failure to advise -- that [is something] a prosecutor can cure on the record prior to a plea expiring.  But including misdavising is open season for attorneys opting to fall on the sword for their client which is not as infrequent as the Kennedy opinion assumes.

If I were back in the US Attorney's Office, I would think long and hard before I offered a defendant a plea bargain, ever.


Trial attorneys "falling on their swords" to help their clients at post-conviction hearings on ineffective assistance is absolutely more common than Kennedy seems to think.

I know. It was a cottage industry in the EDVA when I was there.

How much of a problem is Lafler from a work-a-day perspective? Seems that it's the "law" already in most of the country.

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