DOJ Change On Waiver-Of-Appeal Policies Isn’t Enough

October 20, 2014Articles Law360

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.

Resolution by guilty plea has been and remains by far the most common disposition of criminal prosecutions. It has also become commonplace for United States Attorney’s Offices around the country to insist that plea agreements contain provisions that hamper the ability of pleading defendants, and their lawyers, to advocate for a more favorable sentence. Prosecutors frequently demand stipulations to sentencing guidelines provisions with the intention of framing the starting-point sentencing range and, as a corollary, require the defendant to waive his right to seek a downward variance from that range. Another pernicious provision that prosecutors insist on including is a waiver of right to appeal. Even defendants misinformed by their attorney about important plea-related rights are thereby prevented from seeking appellate review.

But defense lawyers and local bar associations are fighting back. Many associations have adopted positions that it is improper for prosecutors to require, and defense attorneys to accept, limitations on a defendant’s right to appeal based on bad lawyering. U.S. Department of Justice lawyers have strenuously fought the application of those ethics positions to them and their cases, with little success.

Battered, but not bowed, the DOJ announced on Oct. 14 a modest change in its waiver-of-appeal policies. No longer will federal prosecutors seek a waiver of the right to appeal the ineffective assistance of counsel. But this does not go far enough, as shown in a recent Third Circuit case that severely penalized a defendant who appealed in the face of an unconditional waiver. As a result, the DOJ has a greater obligation to revisit the entire question of demanding appeal waivers as a condition of a defendant being allowed to plead guilty.

Plea agreements have become an essential lubricant to the federal and state criminal justice systems. Two years ago, in Missouri v. Frye,[1] the U.S. Supreme Court noted that 97 percent of federal convictions and 94 percent of state convictions stemmed from guilty pleas, citing DOJ statistics.[2] The centrality of plea agreements to the functioning of the justice system means that defense attorneys’ responsibilities to their clients at the plea stage were no less important than at trial; “[plea bargaining] is not some adjunct to the criminal justice system it is the criminal justice system.”[3] It is not just the guilty plea itself — that is, the entry of the plea and the hearing at which it takes place — which matters. Rather, it is the “negotiation of a plea bargain [which is] almost always the critical point for a defendant.”[4]

Thus, it is the negotiation of the plea, what the Frye court called the “horse trading” between prosecutor and defense counsel,[5] the bargain reached at arm's length, which is central to our system of justice. But the DOJ has eroded the Sixth Amendment right. It is not enough, it seems, for the government to hold the leverage, which in negotiations strengthens its hand, a leverage that accrues because its relatively more vast resources have allowed it to aggregate inculpatory evidence, while the defense attorney lacks similar resources to develop exculpatory evidence to contradict it.

The DOJ has steadily stripped away, step by step, the ability of lawyers to try to obtain optimal outcomes for clients who have decided, for one reason or another, to resolve an open criminal investigation by pleading guilty in a negotiated conclusion. Insistence on a set of stipulations to sentencing guidelines calculations was followed by refusal by the government to allow lawyers to move for downward departures or variances, which has led to compulsory waivers of appeal. Lawyers have been denied the ability to function as advocates and have come to more closely exhibit the passive characteristics of the dreaded “potted plant.”

Recently, the Third Circuit Court of Appeals issued an opinion that marked a natural, if unfortunate, diminution in the role of the defense attorney. In August, the Third Circuit in United States v. Erwin[6] not only dismissed an appeal taken by a defendant who had acted in contravention of a no-appeal waiver in his plea agreement, but determined to punish the offender. Ignoring available, and routine, sanctions such as imposing costs or fees, the court of appeals instead set the matter down for resentencing and relieved the government of its contractual obligation to file a downward departure motion for the defendant, who had cooperated extensively in connection with his plea of guilty.

The court reasoned that Erwin’s breach of his standard promise not to appeal was a breach of such magnitude that it excused the government’s performance of its vastly more material, not to mention actively negotiated and bargained for, agreement to seek a downward departure.[7] Not only did the court, in so doing, misapply contracts law,[8] but it further and vehemently tied the hands of defendants and their attorneys.

State-level bar associations, applying rules of ethics, have led the pushback against these forced and draconian appeal waivers. For example, in United States v. Kentucky Bar Assoc.,[9] decided in August, the Supreme Court of Kentucky upheld as applicable to federal prosecutors subject to its jurisdiction a bar association ethics advisory opinion holding that it was inconsistent with the prosecutor’s ethical responsibilities for him/her to propose a plea agreement that requires a defendant to waive his/her right to appeal a claim of ineffective assistance of counsel. While federal courts of appeal, which have examined the question have upheld ineffective-assistance appeal waivers,[10] those cases dealt with the enforceability of such waivers as a matter of law, not ethics; the state Supreme Court was instead construing the waivers in light of the ethical obligations of the attorneys involved.[11] In that vein, Kentucky joined the “growing consensus” among state bar associations that ineffective-assistance waivers were unethical.[12] The American Bar Association, too, has issued a resolution declaring its opposition to such waivers.[13]

Its prosecutors under siege ethically, the DOJ finally relented, at least a bit. On Oct.14 Attorney General Holder announced that it will no longer ask defendants pleading guilty to waive their right to appeal, or otherwise challenge through habeas petition, the ineffective assistance of their counsel.[14]

Deputy Attorney General Cole was quoted as describing the change in approach as “reaffirming the commitment by the department’s prosecutors to protecting the right to counsel and enhancing due process.”[15] Defense counsel might have a few ideas to contribute to that particular suggestion box, but one might be this: Don’t stop with ineffective assistance appeals. Instead, re-examine the entire practice of mandating appeals waivers, and related restrictions like forbidding downward variance motions. In fact, embrace the entire “do justice” mantra that the DOJ professes to embody, and don’t be afraid of defense lawyers doing their jobs because that keeps prosecutors honest and fair.

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.