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March 11, 2010

More details on the Monica Conyers case (and its future?)

The Detroit Free Press has this effective report on the past, present and possible future of the criminal case against Monica Conyers (background here). The piece is headlined "A fuming Monica Conyers seeks appeal: Experts say she may not have right."  Here is how the piece sets up the fascinating question now at the center of the case:

Although defendants often are allowed to appeal rulings, there is a question if that applies to Conyers in this case because she signed a plea agreement as part of her admission of guilt on June 22 that indicates if the sentence imposed falls at 60 months or less, "defendant waives any right to appeal her conviction or sentence."

Alan Gershel, a 28-year veteran of the U.S. Attorney's Office who is now a professor at the Thomas M. Cooley Law School, said Conyers' signature on the plea agreement effectively stymies an appeal. "Essentially, the government is saying you get what you bargain for, and there really is no right for appeal," he said.

Helpfully, this article also provides links to what these notable legal documents from the case:

I have long thought that a strong argument could be made that certain broad appeal waivers, at least in some settings, should be set aside as void as against public policy.  But, as I said in this prior post, because the Sixth Circuit has often been quite willing and eager to enforce appeal waivers, I suspect Conyers will have an uphill battle trying to get even her day in appeals court. 

March 11, 2010 at 11:57 PM | Permalink

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Comments

I would hope that the DoJ has enough experience with appeal waivers by now that they could write one that would stick regardless of the connections of the offender. Connections don't say anything about whether a waiver is knowing and competent.

The other thread on this did surprise me with the recent vintage of such waivers, though I can see how such would be a product of the advent of sentencing guidelines.

Posted by: Soronel Haetir | Mar 12, 2010 2:38:40 PM

As a defense lawyer I always wondered how you waive a right before it vests. You have no right to appeal a conviction or sentence until they are entered. I suppose it can be argued that it is a contingent waiver - a promise to waive a future right if circumstances occur as expected. But what is the government's right to enforce such a contingent waiver? Last I looked, under Texas state law, pre sentence appeal waivers were void.

Posted by: R. K. Weaver | Mar 12, 2010 3:04:17 PM

It sounds like one approach for her is going to be to attack the plea itself--i.e., that the judge erred by refusing her request to withdraw the plea. Because the appeal waiver arises from the plea agreement, she should be able to go down this road. That is what is happening for a case I have right now. The Gov't moved to dismiss the appeal based on the appeal waiver, but the Court (sua sponte--before I filed a response) denied the motion because the panel saw that the focus of the appeal was to challenge the plea itself. (US v. Goddard).

Posted by: David Mills | Mar 12, 2010 4:55:23 PM

yep maybe this one will be the one to finaly stop this illegal stupidity of a plea agreament where there is NO AGREEMENT! You can hardly have an agreement when one side has no clue what they are getting!


i'm sorry simply saying yoiu "MIGHT" get this is hardly a knowing agreement BETWEEN two parties.

Posted by: rodsmith | Mar 12, 2010 6:52:48 PM

Rod,

I make such contingent agreements all the time. no further contact needed if Shipping costs are not greater than X being a prime example.

Remember the offender is getting something too, be it dropped charges or the gov't not arguing for potentially applicable enhancements, or even just a third point reduction. And my understanding is that most, like the one here let the offender out if the judge strays too far. I have far more problems with forcing waiver where there are legitimate questions about whether the underlying conduct is actually criminal or not, rather than just an offender being unhappy with the bargain they entered.

I see the elements of a contract being present and am not seeing a strong argument for saying such should be an invalid agreement. Plea bargains already are agreements that let the prosecution out of at least the majority of its burden, I see not having to cover an appeal if the sentence comes down in a certain range as part of that. The fact that the range is higher than the sentence the prosecution will seek simply demonstrates that the offender is in a generally poor bargaining position with little to offer.

Posted by: Soronel Haetir | Mar 13, 2010 12:59:17 AM

true i agree with this part!

" I see not having to cover an appeal if the sentence comes down in a certain range as part of that."

IF and it's a BIG IF! You tell them that possible range up front! when it's a suprise sorry there is no deal!

you can talk all the lawyer you want a plea bargain is a "bargain" i.e. a CONTRACT between the STATE and the DEFENDANT! you can't have a contract without BOTH parties knowing exactly what is in it. at least no morally anyway.

Posted by: rodsmith | Mar 15, 2010 12:29:33 AM

Soronel --

Correct.

rodsmith --

If the defendant or his lawyer want to preserve their appeal rights, it's fine with me: Don't sign the waiver. But if you do sign it, you shouldn't double-back and subsequently claim you can't be bound by it. When Ms. Conyers did, her counsel did the honorable thing and withdrew.

If a lawyer spins the US Attorney's Office, they're not going to deal with him any more, just as you would properly refuse future dealings with a person who ostensibly entered into an agreement with you and then spun you. You or anyone would be a fool to sign an agreement with a person who has shown he can't be trusted to keep it.

Posted by: Bill Otis | Mar 15, 2010 5:16:01 AM

loved this one!

"Don't sign the waiver. But if you do sign it, you shouldn't double-back and subsequently claim you can't be bound by it."

Why not! the govt has been doing that very thing for over a decade for what 1/2 a million ex sex offenders! who's plea bargains didn't even include the word's "Sex offender Registry" since it hadn't even been CREATED YET!

Posted by: rodsmith | Mar 15, 2010 5:55:39 PM

rodsmith --

Me: "Don't sign the waiver. But if you do sign it, you shouldn't double-back and subsequently claim you can't be bound by it."

You: "Why not!"

Because it's dishonest, that's why not.

"[T]he govt has been doing that very thing for over a decade for what 1/2 a million ex sex offenders! who's plea bargains didn't even include the word's "Sex offender Registry" since it hadn't even been CREATED YET!"

When Congress makes law, about sex registries or anything else, it has to be obeyed. If you think it's a consitutional or contractual violation, fine. File a motion and get it overturned.

Complaining on the Internet just doesn't get it done. Go make your case in court and win it, as any other litigant has to do.

Posted by: Bill Otis | Mar 16, 2010 3:01:04 AM

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