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Supervising Pleas


Adam Liptak’s roundup of a the forthcoming Supreme Court term — one that could produce the most landmark rulings of any in quite some time — is of course useful. What is likely to be the biggest case is well-known. This is one less prominent case I’ll be keeping an eye on:

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

Given that over 90% of cases plead out, rulings about trial procedure are relevant to most accused persons only indirectly, to the extent that they provide more bargaining leverage to the defense or prosecution. It’s important that the Supreme Court engage in some supervision of the plea bargaining process, where inadequate counsel may be less visible but is nonetheless a serious problem.

In light of the Davis execution, this case will get more attention:

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

I would like to think that the Supreme Court would follow the lead of the New Jersey court, but as of now I’m betting the other way.

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