Effective Assistance on the Assembly Line


What are the obligations of counsel in a mass production system of criminal justice? I propose to examine this question with an assumption that most will consider hopelessly unrealistic: the lawyer should prepare to take all her cases to trial. After looking at what the lawyer must do to prepare for trial, I will descend to “reality” and consider the obligations of counsel in preparing a case for a guilty plea. I will demonstrate that logically, practically, and legally the lawyer preparing for a plea need not make the effort that is required of an attorney preparing for trial.

After I sketch the paltry package of responsibilities that constitutes “effective” assistance in the guilty plea context, I will consider whether we can continue to tolerate the plea bargaining system. There are many conceivable defenses for bargaining, but I submit that ultimately tolerance for plea bargaining must rest on one of two assumptions. One assumption is that after an appropriate discount for uncertainty, bargaining approximates the results that would occur if cases went to trial. Alternatively, in conditions of heavy caseloads, plea bargaining is unavoidable, so bargaining is by definition tolerable even if theoretically “unjust.”

When I have demonstrated that both of these assumptions are false, I will introduce my “new model” of effective assistance. My “new model” is the adversary criminal trial. Some may try to deflate my claim by arguing that my idea is not really new, but I think that many will readily grant that my idea is totally original – and totally silly; it is no accident that hardly anyone, even in academia, has ever made such an outlandishly impractical proposal. I will try to demonstrate that this idea can work – even in New York City.

Suggested Reading

Avi Frey∞ I. Introduction II. Mitigation A. Supreme Court Law B. Defense Practice III. Free Will vs. Determinism IV. Determinist Mitigation: The Substance Focus the Investigation Assess—and Reassess—Investigative Progress Utilize the Science of the Brain Supplement Voir Dire Frontload Determinist