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October 11, 2009

DOJ reviewing some DNA testing waivers in federal plea agreements

This new article in today's Washington Post, which is headlined "Justice Dept. to Review Bush Policy on DNA Test Waivers," spotlights an interesting issues concerning the use of rights waivers in some federal plea agreements. Here are some of the basics:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence.  More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing.  They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes.  Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right.  One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision.  Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."...  Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices.  Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers. "It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."

Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence. "It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle....

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment.  It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004.  Justice Department officials said the number is small but have also said they expect more petitions over time.

Though this Postarticle is focused on waiver of the right to DNA testing, I am hopeful that the Justice Department is examining critically all the disparate and disturbing use of broad waivers in federal plea agreements.  I am glad to see the Post focusing on one part of this issue, but I hope the inquiry into waivers of rights in plea deals extend beyond DNA concerns.

As this article highlights, though the Justice Department and federal prosecutors are often raising concerns about disparate sentencing practices, the reality of federal criminal practice is that plea bargaining practices and plea agreement terms are often wildly disparate from district to district.  The different and disparate fast-track sentencing programs (discussed in the most recent FSR issue) are the most tangible example of prosecutor-produced disparity, but use of different types of waivers is also profound and pervasive, too. 

The most pervasive and pernicious plea agreement waiver involves waivers of the right to appeal.  Though statistics are hard to come by, I suspect that some (if not most or even all) federal districts include appeal waiver in some (if not most or even all) plea agreement.  As I explained in long ago posts here and here right after Booker, I think a strong argument could and should be made that appeal waivers are void as against public policy as enshrined in the Sentencing Reform Act and Booker.  But, to my knowledge, only a very few federal judges and courts refuse to endorse and uphold appeal waivers.

October 11, 2009 at 11:59 AM | Permalink


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I have a hard time believing that a cigarette smuggler could possibly be aided by DNA testing, no matter how sensitive. If that is so does waiving something of no value to the particular defendant actually hurt that defendant?

Posted by: Soronel Haetir | Oct 11, 2009 12:59:59 PM

Plea bargain is a contract.


Agreements with cult criminals, at the point of a gun, are void, not voidable. The disparity in power makes any contract unconscionable per se.

Posted by: Supremacy Claus | Oct 11, 2009 1:20:57 PM

LOL yep TYPICAL govt BLACKMAIL. God help us if they managed to let an INNOCENT person loose on society!

These days the real crooks in this country are in the govt!

Posted by: rodsmith3510 | Oct 11, 2009 6:06:53 PM

See Kevin Cooper for why this concession may be a good thing . . . .

Posted by: federalist | Oct 12, 2009 3:57:05 PM


Such a waiver wouldn't matter with Kevin Cooper, he went to trial. Which makes sense given that he is on death row.

Posted by: Soronel Haetir | Oct 12, 2009 4:52:50 PM

The point Soronel is that post-conviction DNA testing can eat up a ton of resources and cause pain to the victims' families, no matter how the conviction was obtained.

Posted by: federalist | Oct 12, 2009 6:39:21 PM

And sometimes it has shown that the system did in fact get the wrong person. One thing I find interesting in those cases is how varied the victim responses are. Some realize the enormity of the injustice they helped perpetrate, some continue to insist that the person is actually guilty despite the best available evidence.

This is only going to get worse as ever tinier samples become recoverable. There was a German incident where the same DNA sequence kept turning up all over the country linked to various crimes of differing levels of severity. It turned out that the samples came from a factory worker where the gauze pads were packaged, that the sterilization procedure wasn't up to the task.

Posted by: Soronel Haetir | Oct 12, 2009 10:04:12 PM

I had no idea that a plea agreement would require a defendant to waive the right to appeal, seek a reduction in sentence, to request or receive any records about the investigation of a case, and, of course, the aforementioned DNA waiver. It strikes me that the average citizen would be quite shocked to discover this. It seems a violation of human rights.

Posted by: katynova | Oct 15, 2009 4:41:40 PM

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