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July 17, 2012

New York Times editorial assails appeal waivers

Today's New York Times has this new editorial about appeal waivers headlined "Trial Judge to Appeals Court: Review Me." Here are excerpts:

Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.”

In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling.  Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court...

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers.  The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence.  All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial....

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence.  Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues.  Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither.  Our system of pleas then looks more like a system of railroading.

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I have no problem with appeal waivers if the defendant actually receives something in exchange. But where I practice, the only thing the defendant "gets" in exchange for the waiver is a promise that the Government will recommend a guideline sentence, and this in a jurisdiction where guideline sentencing is the norm and where the rare departure or variance is usually downward. In fact, the Government almost never even asks for upward variances or departures, regardless of whether there's a plea agreement. Occasionally, the government will agree to dismiss a count of the indictment, but only if it won't affect the guideline calculations.

All the agreement does is waste my time. I have to spend time explaining it to my client, solely so I can then advise him not to sign it.

Posted by: C.E. | Jul 17, 2012 10:36:53 PM

1. Was this written by the NACDL?

2. The editorial does manage to choke out that waivers have been approved by every court of appeals, but then walks right past this fact as if their validity had actually been given no serious consideration -- which is completely false.

3. The idea that you can waive a trial (whose outcome can't be forecast) but can't waive an appeal (about which you can make a better, although uncertain, forecast) is absurd. If you can waive your constitutional right to a trial, a fortiori you can waive a mere statutory right to appeal.

4. The NYT should take up with the Framers the notion that a trial is a "crapshoot." Last I heard, it was the way specified for the resolution of criminal cases.

5. The government has greater bargaining power because it wasn't the government that's on tape sticking a gun in the ear of the 7-11 clerk. Yes indeed, said tape does put a crimp in the robber's "bargaining power," thank goodness.

6. And with it all, if the defendant thinks the waiver is abusive in any way whatever, he has the solution readily at hand: Tell the government to stick it and you'll see them in court.

This is really a piece of work even by NYT standards.

Posted by: Bill Otis | Jul 17, 2012 10:38:34 PM

Congratulations to Bill Otis. Your legal invention is roiling the NY Times. Very good.

Posted by: Supremacy Claus | Jul 17, 2012 10:56:18 PM

Bill --

What about waivers that include provisions for waivers for items that can't really be forecast at the time of making the plea, like IAC stuff or Brady claims?

Posted by: Guy | Jul 18, 2012 12:26:15 AM


I would say that in order to get the benefit of the bargain (usually a greatly reduced sentence compared to what could be secured after trial) the defendant should indeed have to give up all claims other than whether the conduct at issue actually forms the basis of a statutorily defined offense. And given the number of appeals with such reservations(think of the case of United States v. Stevens 08-769, the case testing whether banning depictions of animal cruelty is consistent weith the first amendment, or any of a great many firearms related challenges after Heller and McDonald) it would seem that prosecutors don't have much of a problem with testing that particular issue.

But most anything else, yes, the offender should have to waive in order to have actually secured to the government the benefit it seeks out of offering the deal in the first place. Namely clearing the case and not having to deal with it in the courts any more. Not having to go to trial is only a small part of that.

I would say that of course this particular judge is free to refuse to accept the deal for this or many other reasons, but I doubt it will catch on with the federal judiciary as a whole and it may well turn out to be detrimental to this particular offender if the government chooses to use its limited trial resources on him now that this deal has been rejected. And I could certainly see the USA doing that rather than caving on the appeal waiver issue.

Posted by: Soronel Haetir | Jul 18, 2012 1:50:19 AM

Guy --

A waiver of appeal in a plea agreement would not affect IAC claims, since such claims cannot be raised on direct appeal in any event and must be pursued via habeas. Brady is a trial right, generally not applicable to plea bargaining, US v. Ruiz, 536 U.S. 622 (2002)(Breyer, J.)(unanimous opinion).

Posted by: Bill Otis | Jul 18, 2012 3:32:22 AM

SC --

Thank you. I'm always happy to annoy the NYT, although I need to be on good behavior since they do quote me every now and again, see, e.g., http://www.nytimes.com/2012/06/27/us/news-analysis-ruling-reflects-rethinking-on-juvenile-justice.html?pagewanted=all; http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html

Posted by: Bill Otis | Jul 18, 2012 3:42:32 AM

With respect, Mr. Otis, we aren't talking deals here that are struck because USA has robbery defendant clearly terrorizing on video -- just try getting a decent deal in that case.

No, we're talking here about a defendant with valid trial defenses -- including sometimes law enforcement and prosecutorial misconduct -- who have to choose between standing up as the Constitution provides, and risking the trial penalty (one conviction out of 100 charges allows punishment for all 100 charges, without Acceptance of Responsibility), and bending over to whatever the Government wants.

Just because these contracts of adhesion have been deemed "legal" by elders protecting the status quo (most of whom were former prosecutors, not defense attorneys), that doesn't mean they're right, or proper in our Republic. And there is NO problem with Congress visiting the issue and limiting waiver language.

Actually, there is one problem there -- Congress benefits from our status quo, not from correcting flawed rhetoric.

I am glad, Mr. Otis, that you expressly exclude IAC from these waivers. I've encountered some of your brethren who do not. Fortunately, the NC Bar also requires us to include "prosecutorial misconduct" with IAC, in that express waiver exclusion.

Posted by: Jay Hurst | Jul 18, 2012 6:59:58 AM

Bill --

Okay thanks -- I didn't know how IAC worked in the federal system, but pursuing it via hc makes sense.

Also, even if impeachment information isn't required to be disclosed before cutting a deal, and that a defendant can waive that right too, do you not think though that it's a little / much more difficult to predict what that exculpatory information will be as opposed to identifying issues for an appeal?

Posted by: Guy | Jul 18, 2012 8:48:57 AM


Umm, much of the point of pleading out is that the offender is agreeing not to contest their guilt, the closer an issue is to contesting that very premise the more trouble I would have with /not/ waiving it (other than as I said whether the conduct at issue actually forms the basis of a statutorily defined offense) or whether the government has the power to criminalize the described conduct even if there is a match.

Now, I presume that in the vast majority of cases the defendant can go through the charges and have a pretty good idea about whether or not they actually committed the described actions (setting aside whether they could convince anyone else, the defendant should /personally/ have a pretty good idea). I just don't see how it's particularly relevant what impeachment evidence is available at the time a plea is entered, or indeed what evidence could be developed if a full trial were prepared for, part of the point of a plea and its attendant sentence reduction is saving the government the bother of that work.

Unlike Bill Otis I do think the government should be made to present a sort of mini-trial at the plea hearing where they would demonstrate the evidence used to prove guilt (and my understanding is that at least a couple US states already do something close to that) rather than being able to rely on the grand jury proceedings and the defendant (now admitted offender) 's own admission alone.

I'm just trying to see why there would possibly be a legitimate reservation made in regards to impeachment or exculpatory evidence when the offender is not contesting their guilt.

Posted by: Soronel Haetir | Jul 18, 2012 9:57:25 AM

I believe, but am not 100% certain, that there is case law that indicates ineffective assistance of counsel in relation to the plea is still open to litigation regardless of the plea waiver. I think the basic idea is that the waiver is not valid if it was established in violation of the right to effective assistance. Regardless, I believe the language of most (nearly all??) waivers does not purport to reach ineffective assistance of counsel claims brought in a 28 U.S.C. 2255 motion (which is not part of the direct appeal). As Bill indicated, ineffective assistance of counsel claims are properly first alleged in 2255 motions. This is the usual method of litigating ineffective assistance claims in federal prosecutions. See Massaro v United States, 538 U.S. 500 (2003).

Posted by: Tim Holloway | Jul 18, 2012 10:32:54 AM

C.E. pretty much sums up the state of affairs where I practice.
These preemptive waivers- in cases where there really is no bargain, which is the majority of them- are bullsh*t.
How can you make a knowing and intelligent waiver of a right you don't know you'll need to exercise later on?
I tried finding a workable solution around the problem with the local USAO, but their rationale is ridiculous. I told them that if they really needed a waiver I would file one after I got the PSR (AUSA's don't offer up any guideline calculations in our district, probation does all the dirty work)once I saw there was nothing to argue. I tried getting judges to vary over the third point, and I gave proof that I timely notified the AUSA that I was going to plea and that no pretrial litigation happened, and some judges STILL refused to go over the prosecutors' heads. To top it all off not all judges agree on whether to vary for this third point. The Fifth Circuit opinion that justifies this practice (U.S. v. Newson) is one of the most awful examples of intellectually dishonest legal writing I have come across.
Pleas in this district can sometimes be as much as a crapshoot as a trial.
And to Bill Otis who suggested that calling a modern criminal trial a "crapshoot" is offensive to the Framers, I am sure they (as if we could ever divine their thoughts from beyond the grave...) would be MUCH more offended by the way modern law puts most power in the hands of prosecutors, not the court. And these preemptive blanket waivers are a prime example of that.

Posted by: P.V. | Jul 18, 2012 11:25:50 AM


Because the decision to make a plea is an entirely tactical one, at least for the most part. How it rolls with a good number of cases that I've worked on is we try to isolate the issues most likely for a win on a pre-trial motion, file those motions, and if they win then suddenly our position is significantly better and the government's position is significantly weaker. That relative balance influences the decision about whether or not to plea or go to trial.

The same can be said for discovery of exculpatory Brady material. Let's say you tell me you've got ten eye-witnesses that all say that my client did crime X. If you've got ten eye witnesses, I'd think going to trial is risky. If you told me, however, that all of those ten eye witnesses were legally-blind convicted felons, the tune would be a little bit different, no?

Of course, as is apparently the law of the land, the defendant is not entitled to that information in plea negotiations (which, I don't think that a waiver of trial rights can be made intelligently without access to that information, but then my opinion and three bucks gets you a cup of coffee).

But my point is just that it's pretty much a guessing game as to what the government is sitting on when it comes to appellate waivers and Brady material, isn't it? So in that sense, isn't it so that the defendant really has no idea what they're actually waiving if they're not being provided with the information ahead of their plea?

Posted by: Guy | Jul 18, 2012 1:03:12 PM

IAC claims can be made on direct appeal -- they are just preferred on habeas because a full record can then be made. That's from an opinion written by Kennedy.

Posted by: = | Jul 18, 2012 2:55:45 PM

I think you are referencing the opinion in Massaro. I think part of the rationale behind this is as follows. The federal courts will not usually hear IAC on direct appeal because there is usually no record upon which to decide the claim. There are a ton of Sixth Circuit cases saying something to this effect where defendants tried to raise IAC claims on direct appeal. I think they also say that it is not impossible for such a claim to be heard on direct appeal under the right circumstances. However, I don't think I have ever read a federal case where they did actually decide an IAC issue on direct appeal. It is kind of like saying it is not impossible to grow corn on the side of a mountain --- not impossible but you don't see it very often.
I think Posner from the 7th Circuit even said something like you are taking a risk that the issue might be decided on the merits on direct appeal against the defendant because there is an inadequate record, but then wind up with an issue of collateral estoppel when you later try to have it heard in a 2255 motion. At least I think I read something like this many years ago in dicta. It seems best that the defendants and the courts leave it alone on direct appeal and boot it for a 2255 motion.

Posted by: Tim Holloway | Jul 18, 2012 3:28:21 PM


Again, to me at least it mostly comes down to the defendant/offender's personal knowledge that looking over the charges that "yes indeed I was doing this crap" or "hrmm, I dunno, I was working so many hustles that I have no idea whether I did these particular ones" or "I have no idea what the government is talking about here".

"Hrmm, I know I did this, but could the government actually prove it?" is a hugely different matter to me and the sort that the defendant/offender rightly waives.

Now, there are unfortunate cases where an actual innocent is charged and some number of those will be convicted, I likely believe it happens more often than Bill Otis, and likely less than someone like say Grits For Breakfast. And I do think there are some steps that should be taken to further reduce the risk (one such step being that a hung jury is a loss for the government, not a chance at a do-over). But even of such cases that do end in guilty pleas, I would be very surprised if such pleas are often entered early in the process. I would think most such innocent defendants would hold out for awhile at least in hopes that the prosecution would see whatever flaws exist in their evidence, rather than taking the first deal to come along thinking "it's only going to get worse from here."

Posted by: Soronel Haetir | Jul 18, 2012 4:30:27 PM


The "hmm I know I did this but can the government prove it" is the way the criminal justice system operates. Beyond a reasonable doubt, etc, all that good stuff. The burden of proof is placed on the state, yada yada yada. Maybe to you it comes down to whether the defendant did it or didn't do it, but if that were the case then only the guilty would plead and only the innocent would choose go to to trial -- and we know that just isn't the case. Plenty of innocent people take pleas rather than roll the dice with a jury (e.g. take a plea to get probated or roll the dice with exposure of several decades with a jury) and plenty of guilty people opt for trial -- it is, after all, their right to do so.

But functionally, it all comes down to what the government can prove. No one is obligated to run down to their local police station to turn themselves in whenever they have committed a crime, just as no one is obligated to plead guilty on the basis of having actually committed the crime. Would it be the morally correct outcome, to do such an thing? In my opinion, yes, but that is a choice that is left up to each individual.

At the end of the day, it does come down to what the government can and cannot show through their proof, since they have the burden. If the proof is lacking, or there are substantial flaws with the government's case that would otherwise be discoverable via a Brady request, I don't see how a defendant can knowingly waive that right unless they know what it is they're giving up.

But then again, I'm not SCOTUS.

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Posted by: new york city | Jul 19, 2012 4:13:31 AM

Massaro it is -- I could not recall off the top of my head. I believe I have read a few 2d Circuit opinions that decided IAC claims on direct. I provide no citations, so take my memory for what its worth. I agree a full record developed in 2255-land or 2254-land is most often better -- my point was to dispute the assertion that IAC claims are not available on direct appeal.

Posted by: = | Jul 23, 2012 10:08:46 AM

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