Defense Lawyers Say Giving Up Right to Appeal Presents
Conflicts of Interest
By: Joe Palazzolo
In a significant policy shift, federal prosecutors no longer will ask criminal defendants with guilty pleas to waive their right to appeal over bad legal advice. Attorney General Eric Holder is expected to announce the development as soon as next week, a Justice Department official said.
The waivers are used by about one-third of the 94 U.S. attorneys’ offices and have come under increased scrutiny by legal ethics authorities in recent years. While federal prosecutors say the waivers pre-empt frivolous litigation and preserve resources, defense lawyers and federal public defenders argue they create a conflict of interest and insulate attorney conduct from judicial review.
Attorney General Eric Holder is expected to announce the policy shift on waivers as soon as next week. The debate has grown in importance now that nearly all charges in federal and state courts are settled with plea bargains. These agreements represented more than 97% of all federal convictions in 2013, said the Administrative Office of the U.S. Courts.
By signing a waiver—usually a paragraph in a plea agreement—a defendant agrees not to challenge her conviction by filing a claim alleging that an attorney provided ineffective assistance. If the defendant were to try anyway, a court could enforce the waiver without considering the merits of the claim.
In a ruling last month, the Kentucky Supreme Court became the first to pronounce such waivers unethical, saying they put defense lawyers in the awkward position of having “to advise a client on the attorney’s own conduct.”
The U.S. Attorneys in Kentucky, David J. Hale and Kerry B. Harvey, unsuccessfully challenged the Kentucky ethics opinion, arguing that it conflicted with federal court rulings that have upheld waivers and undercut the government’s “bargained-for benefit of finality.”
Bar associations in 11 other states, including Florida, Utah, Pennsylvania and Virginia, have advised lawyers that the waivers are improper. The ethics opinions aren’t binding on federal judges but they can be influential. Chief Judge Joy Flowers Conti of the U.S. District Court in Pittsburgh said in an August ruling that enforcing such a waiver amounted to a “miscarriage of justice,” citing an ethics opinion issued in her state this year.
The question of whether the waivers are ethical is separate from whether they are legal.
Several federal courts have approved the use of waivers but have also said they would be problematic if bad legal advice directly led a defendant to agree to a waiver or plead guilty instead of going to trial, said Nancy J. King, a law professor at Vanderbilt University who has studied the use of the waivers.
Opponents of the waivers say they strip key protections from defendants who are increasingly unlikely to go to trial.
“There’s got to be some kind of safety value, some kind of check on all the pleas that get churned out, instead of us just running them through the assembly line,” said Peter Joy, a law professor at Washington University who co-wrote a law review article on the waivers this year.
Legal experts point to a raft of cases in which defendants pleaded guilty and were later exonerated as a strong argument in favor of preserving the right to an effective lawyer.
Mr. Joy and other legal experts say the waivers became more common following a trio of Supreme Court decisions in the past decade that recognized a constitutional right to counsel during plea deals. This year, Donna Lee Elm, a federal public defender in Florida, examined more than 100 plea agreements from each of the 94 federal districts and found that 36% of them contained broad waivers that encompassed claims of bad legal assistance.
Even without the waivers, defendants rarely succeed in undoing their convictions based on claims of shoddy lawyering, so many of the appeals are fruitless.
Dewayne J. Joseph said his lawyer gave him a choice: plead guilty to drug charges and serve 10 years in prison, or go to trial, lose and rot away for 20. “I was too scared to go through with the trial,” he wrote in a January court filing he typed from prison in McKean County, Pa., where he is serving nearly 17 years in prison for his role in a cocaine-distribution ring, despite his decision to plead guilty.
When he tried to reduce his sentence, arguing that his lawyer gave him bad advice, Senior U.S. District Judge Donetta W. Ambrose, another member of the Pittsburgh court, reminded him that he had waived that right.
“Although the attorney ethics surrounding such waivers have recently been called into question, our Court of Appeals has since affirmed their enforceability,” wrote Judge Ambrose in a May ruling.
There is no evidence Mr. Joseph would have succeeded, anyway. Prosecutors sought a stiffer sentence after he testified on behalf of a co-defendant, against his lawyer’s advice.
“Fifteen times I told him, ‘Take the Fifth, take the Fifth,’ ” said his lawyer Phillip P. DiLucente, referring to the Fifth Amendment right against self-incrimination.
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