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October 14, 2014

AG Eric Holder officially says federal prosecutors should no longer require defendants to "waive their right to bring future claims of ineffective assistance of counsel"

I have long thought it both bad policy and ethically suspect to expect or require criminal defendants to waive future rights (as opposed to current rights) in a plea agreement.  Consequently, I am very pleased to see this new press release coming the the US Department of Justice, titled "Attorney General Holder Announces New Policy to Enhance Justice Department's Commitment to Support Defendants' Right to Counsel." Here are the details (with my emphasis added):

Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced today that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel.  The new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.  I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do.  Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”...

Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow.

The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.

As noted in this prior post, a few months ago the the Supreme Court of Kentucky unanimously rejected a challenge by the federal government to Kentucky Bar Association Ethics Opinion stating that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  Thus, I think DOJ is still on shaky ground when it asserts a belief that such waivers "are legal and ethical," but this suspect view becomes a lot less worrisome if the feds no longer plan to use such waivers nand also will not seek to have them enforced.

Kudos to AG Holder and others in DOJ for making the sounder ethical and policy approach to this significant matter now official DOJ policy.  And, notably, those who regard national consistency in federal sentencing policy and practice to be important should also welcome this universal policy decision coming from Main Justice.

UPDATE: The one-page memo referenced in this press release can be downloaded here:  Download DOJ Policy on Waivers of Claims of IAC

October 14, 2014 at 03:09 PM | Permalink


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I suspect that the Kentucky Supreme Court's decision had a lot to do with the DOJ's change in policy. Ineffective assistance of counsel claims, brought thru Motions for Habeas Corpus (28 U.S.C. 2255) serve an important function in our Constitutional system of criminal justice. I recently helped obtain the release from Federal prison of a physician who had already served more than 13 years of a 20 years sentence imposed after he was convicted at trial of prescribing narcotics without a medical necessity and outside the normal course of practice. Defendant's young attorney, who had never handled a Federal criminal case previously, advised him to turn down the Government's 41-month plea bargain offer because he thought he might obtain an acquittal at trial based upon entrapment by government agents. Unfortunately, counsel had not purchased a copy of the Federal Sentencing Guidelines Manuel, and gave the defendant no estimate of the sentencing range he might face if he rejected the 41-month offer and was convicted at trial. Thus, counsel and the defendant were shocked after conviction on most counts at trial to discover that his Guidelines Range was 235 to 293 months, with a 240 month statutory cap under 21 U.S.C. 841(b)(1)(C). It took almost five years (and $40,000 of attorney's fees) to litigate the habeas corpus case and get the District Judge (Karen Caldwell of the E.D. of Ky.)reversed by the Sixth Circuit(6/30/2014). It should not take almost 5 years to obtain an extraordinary remedy thru the Federal Courts. At one point, habeas corpus counsel had a Motion for a Status Conference pending for 13 months, and was on the verge of seeking a Writ of Mandamus from the Sixth Circuit. On September 24, 2014, the defendant was re-sentenced to "time served" and released from the Federal Courthouse in Lexington. The U.S. Marshals would not permit the defendant to leave the Courthouse in his green prison jumpsuit, so his family had to purchase clothes and shoes for him at WalMart before he could actually leave the Courthouse. The ability to bring habeas Corpus claims of ineffective assistance of counsel do matter if there isto be any real justice.

Posted by: Jim Gormley | Oct 14, 2014 3:37:36 PM

Ethical rules prohibit getting clients to waive liability unless the client is represented by a separate attorney for that claim. Absent those circumstances, a waiver of ineffective assistance of counsel is the same (and a good argument for per se ineffective assistance). It's not necessarily an ethical problem from the prosecutor who sought it, but it still can't really go through under those circumstances. Glad the DOJ is stopping it.

Posted by: Erik M | Oct 14, 2014 4:03:38 PM

Gee, there goes one particular blogger's lifetime achievement, if you count throwing away an individual's fundamental inalienable right an achievement! But at least they got this "bad" guy, even if it was in a Catch 22 where if you prescribe a wrong painkiller (as determined by a lawyer of all things) to one of hundreds of patients (probably a DoJ agent acting as as a fake patient), we are making a truly great Reich, er I mean nation.

I am sure that we will be reading about Eric the incompetent and his boss. That is true but is typical of the many false strawmen this individual typically employs.

Posted by: albeed | Oct 14, 2014 4:52:41 PM

Bill should break radio silence this one time, for this posting. I would like to hear the other side from the inventor of the appellate waiver. If he does, I expect all you mugs to stay well mannered. If you disagree, you must do so in a lawyerly manner.

Posted by: Supremacy Claus | Oct 15, 2014 12:57:48 AM

I probably would. I would be interested in hearing what he had to say.

Keep in mind I don't think it's unethical for the Prosecutor to request it, it's just unethical for the defense attorney to counsel a client to accept it. And, as a practical matter, it should go away after that.

But Bill Otis has flat out admitted that he doesn't believe in the adversarial process, so that's why I could understand him wanting something like this. Effective representation of counsel doesn't matter to him as long as the defendant "did it."

Posted by: Erik M | Oct 17, 2014 2:53:04 PM


I have been reading yours and Bill’s comments regarding the policing of comments on your blog. Please do not give Bill the “keys to the kingdom” or make any unilateral changes until the following items are also agreed to by one Mr. Otis:

- Mr. Otis will refrain from making almost everything a liberal vs. conservative issue. Mr. Otis has used the conservative mantle only to suit his purpose (ad hominem attacks based solely on perceived political inclinations). I am more conservative than he is but he inappropriately uses the terms to deflect attention away from his opponent’s arguments.

- When Mr. Otis asks a question and it is answered and he is asked for his follow-up response, he responds and does not conveniently dodge the question.

- Mr. Otis will refrain from condemnation of others and self-aggrandizement based solely on his incorrect perceptions of what he believes people are “really” saying and not on what they have actually written.

I realize that this is a “law” blog, but there is a general dissatisfaction with the current making, interpretation and implementation of laws by our political and legal systems. I use the term legal (and not justice) because one federal judge has acknowledged on his own blog that his “function” is to apply law and not justice. He admits that he does not recognize “justice” but only the “legal and procedural process”. He may as well say that he does not recognize the difference between right and wrong, or good and evil because only what is legal has meaningful significance. He would go so far as to elevate the sanctity of law as to permit the execution of a factually innocent man on the altar of the false god of “law”, as long as all “procedural” requirements were met. A sane people would ask themselves, where was the failure in the “legal and procedural” process, to permit an error of this magnitude to occur.

Laws are the creation of men and applied and interpreted by men. Whenever the high court of the land ignores plain language and requires “principles for consideration” or “mitigating/weighting factors” in rendering an opinion, you can bet the mental gymnastics and treasonous thinking, though becoming principles of law, are in fact, unsound. I find it significant that so many opinions end up in favor of the ruling class. When “laws” are not in congruence with “natural law”, and appear to swerve ever further from the mistakenly stated false political premise of “justice”, censored discussions are a hindrance in identifying the actual issues and problems.

Posted by: albeed | Oct 19, 2014 8:56:23 PM

Thanks very much, albeed, for giving me still more to think about in the context.

Posted by: Doug B. | Oct 20, 2014 9:14:59 AM

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