Deal or No Deal? Remedying ineffective Assistance of Counsel during Plea Bargaining

Abstract

Does a defendant suffer a remedial prejudice if, as a result of ineffective assistance of counsel during plea-bargaining, s/he rejects a favorable plea offer but subsequently receives a fair trial? Courts on both the federal and state levels remain bitterly divided over this question. Although there is no clear answer, courts have generally taken one of three approaches. The first two options – ordering a new trial or reinstating the original plea offer – are remedial, and assume that the defendant suffers prejudice. The third option finds that the defendant suffered no prejudice because s/he ultimately received a fair trial. Thus, courts that embrace the third approach order no remedy at all. This ARTICLE discusses the strengths and weaknesses of each approach. In particular, it argues that the second approach violates various judicial principles, while the third approach relies on a flawed understanding of the Sixth Amendment. This ARTICLE introduces the notion that ineffective assistance of counsel during plea-bargaining is a structural-error, rather than a trial-error, an argument that hitherto has not been applied to these types of cases, but one that, once applied, supports a finding of prejudice – even if the trial was otherwise “fair.” Given the logistical hurdles involved in reinstating the original plea, I conclude that the only workable solution is to order a new trial.