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May 12, 2010

"Stemming the Tide of Postconviction Waivers"

The title of this post is the title of a new ABA Criminal Justice column by Alan Ellis and Todd Busset, which I am able to provide for downloading below. Here is how this important and timely column starts and ends:

Over the last several years, waiver of a defendant’s appellate and postconviction rights has become a standard feature of plea agreements in federal cases.  While courts uphold a knowing and intelligent relinquishment of rights, these waivers are not without limits.  This article suggests areas about which defense counsel should be aware in order to afford clients the greatest opportunity for postconviction relief.  In particular, we explore ethical constraints on defense counsel’s ability to advise clients and to shield themselves from ineffective assistance claims, as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims....

While we recognize that there exists a systemic interest in finality and minimizing meritless claims, the appeal and postconviction waivers that have crept into the federal plea negotiation process require diligent attention.  Justice is not served by impediments to valid claims that would otherwise afford relief.  Defense counsel, in particular, are obliged to voice ethical considerations that can and should prevent the government from foreclosing available avenues and to ensure that every client’s relinquishment of rights is knowing and voluntary.

Download ABA -Plea Waivers

May 12, 2010 at 04:02 PM | Permalink


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What????? No post yet from B.O. blistering Ellis and Busset for having the audacity to even suggest that his baby may actually go too far? Unbelieveable!!!

The part that says "as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims...." pretty well gets to the underlying reason for the waiver in the first place. More commonly known as prosecutorial CYA.

Posted by: Unbelievable | May 12, 2010 8:53:17 PM

Unbelievable --

Don't like the waiver? Fine. Don't sign it. Go to trial.

BTW, you'll need to tell me how a sentencing appeal waiver covers the prosecutor's ass when it is signed (a) before there has been any sentence, or even a PSI, and (b) when the judge, not the prosecutor, does the sentencing.

Posted by: Bill Otis | May 17, 2010 5:41:06 PM

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