By B John Burns
March 30, 2012

I’ve heard a lot of rhetoric about the two March 21, 2012 decision of the Supreme Court in Missouri v. Frye and Lafler v. Cooper.  The Court is clamping down on defense attorneys.  We’re going to have to be a lot more vigilant in plea negotiations.

Hopefully not.

Hopefully, the standards of performance we adhere to after Laflerand Frye are no different than what they were before.  Presumably, neither case told us anything more about how we should engage in plea negotiations than what we already knew.

The underlying issue in both was the same.  Is a plea negotiation a stage of trial during which a defendant is entitled to counsel, and to the effective assistance of counsel?   Granted, there is no constitutional right to a plea deal.  But, like many other non-constitutional rights, such as a direct appeal, if counsel is provided during that stage of trial the defendant is entitled to effective assistance from counsel.

So Justice Kennedy in both cases wrote for a 5-4 majority, holding that where the defendant, to his or her detriment, does not accept a favorable plea offer, and the failure to accept the offer is the result of a breach of a professional duty by counsel, then the Strickland v. Washington test should be applied to determine whether the defendant is entitled to relief.

Justice Kennedy’s majority opinion reflected the realization that our system of justice is primarily founded on the guilty plea, and not the trial,

As one might expect, Justice Scalia wrote spirited dissents in both cases, expressing his displeasure with a system that encourages prosecutors to overcharge in order to bargain down to a fair result, and which often results in the most culpable defendants reaping undeserved benefits and faring better than much less culpable defendants.

What guidance do Frye and Lafler give us in our efforts to provide competent defense?

By B John Burns
February 17, 2012

I was in a conversation last night with someone (whom I will not identify) who bemoaned the fact that I have been noticeably absent from this blog in recent weeks (to which I plead guilty as charged).   As if there was no connection between the two topics of conversation, that person then proceeded to ask me if I thought the Iowa Supreme Court actually expected anyone to watch the live streaming video coverage of their night session next Tuesday, when they tackle oral arguments in the case of Homan v. Branstad.

Believe it or not, I know when I’m being played.  This person is trying to prod me into writing something that inevitably is going to get me into trouble.  That’s been the story of my life since I was in the fourth grade.

Well, here goes.

I don’t know much about Homan v. Branstad.  Maybe if I knew more about it, I would care enough to read the briefs, published on the Supreme Court’s website, and perhaps form an opinion as to how it should come out.  

I know it’s a sequel.  It’s a challenge to Governor Terry Branstad’s exercise of the line-item veto.  I know this came up before in another series of cases, a decade or so ago, and the Court resolved the issue.  I know that one of the parties in  those cases was an Iowa governor by the name of Branstad.
            
“How can that be?” the youngsters ask.  Terry Branstad took office just last year.  Maybe the Branstad family is like the Bush family – no matter unappealing it sounds, a new one manages to finagle his way into office every generation or so.  Maybe the 1988, 1989 and 1991 Branstad was Terry’s grandfather.

No, it’s the same guy.  And it’s the same issue.