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October 30, 2018

Plea waivers and ineffectiveness of counsel for failing to appeal come to SCOTUS in Garza v. Idaho

The Supreme Court will hear argument today in Garza v. Idaho, which presents this criminal procedure question about the application of ineffective assistance of counsel: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."  Over at SCOTUSblog, Even Lee has this extended preview under the heading "Can a criminal defense lawyer refuse to file an appeal from a guilty plea because of an appeal waiver?" and here is how it starts and a bit of its noting of some broader implications:

The last few decades have seen a sharp rise in the number of plea bargains.  The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains.  This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas.  In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.

This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30.  When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel?  Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client.  But Flores-Ortega, now almost two decades old, did not involve an appeal waiver.  Garza gives the court an opportunity to address this situation....

The big policy question that underlies this case is to what degree the courts will enforce appeal waivers. A pronouncement in favor of the broad, if not absolute, enforceability of such waivers would promote the smooth functioning of plea bargaining as the principal method of keeping criminal caseloads under control. On the other hand, every Supreme Court decision allowing a defendant to appeal despite an apparent waiver throws an element of doubt into the plea bargaining “market,” as it were. Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences.

Not everybody wants the plea-bargaining market to function smoothly, though.  In its amicus brief, the libertarian Cato Institute warns that the mushrooming institution of plea bargaining threatens defendants’ effective rights to trial under the Sixth Amendment.  It argues that allowing attorneys to ignore client instructions to appeal undermines client autonomy as enshrined in the criminal procedure portions of the Bill of Rights.

October 30, 2018 at 01:22 AM | Permalink


I do see the failure to file the paperwork saying the attorney won't do any more work because there is no appealible issue being deficient performance but I would think Garza would still lose on the prejudice prong of Strickland. And Strickland requires both before relief can be granted.

Posted by: Soronel Haetir | Oct 30, 2018 4:51:28 PM

"Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences."

I found this startling. Do prosecutors actually reduce sentences simply and for no other reason than a waiver of appeal? Why? That doesn't make a whole lot of sense to me. As a normative matter, I don't see the argument as to why that should be an outcome that prosecutors should bargain for.

Posted by: Humma | Oct 30, 2018 8:48:15 PM

Appeal waivers make the plea process far more regular by freeing the prosecutor's office from needing to continue dealing with a case. I doubt it is anything like "we'll take another six months off if you agree to the waiver", it's more like "Any deal is going to include an appeal waiver, you could always take your chances at trial"

Posted by: Soronel Haetir | Oct 30, 2018 9:42:58 PM

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