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DOJ: For Plea Deals, No More Ineffective Counsel Appeal Waivers

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By William Peacock, Esq. on October 15, 2014 1:01 PM

One of the more ridiculous inventions in the law has to be the waiver of the right to appeal, especially the right to bring claims of ineffective assistance of counsel. Imagine if we could all make our missteps and mistakes go away by having clients sign waivers -- there would be no malpractice suits, no insurance requirements, and maybe even no disciplinary proceedings.

There would also be a whole heck of a lot more misconduct and far less faith in the justice system. That's why it's heartening to see that the Department of Justice is finally ending its practice (albeit a somewhat sporadic practice) of requiring defendants to waive ineffective assistance claims as part of a plea bargain.

Even if, as the policy change memorandum notes, "federal courts have uniformly held a defendant may generally waive ineffective assistance claims pertaining to matters other than the entry of the plea itself," the goal should be fairness and adequate representation, even at the cost of a few additional appeals.

Holder's Announcement

In an statement yesterday, outgoing Attorney General Eric Holder announced his "last step to reform the criminal justice system" -- the end of the ineffective assistance waiver.

"Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel," Holder said. "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."

The DOJ press release notes that prior to the change, only 35 of the 94 U.S. Attorney's Offices used these waivers. The policy memorandum instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel rendered ineffective assistance resulting in prejudice or where the defendant's ineffective assistance claim raises a "serious debatable issue that a court should resolve."

One final footnote from the memorandum: As long as ineffective assistance is left out of the waiver, prosecutors are still free to request other waivers of appeal and post-conviction relief.

ABA Approves

In a statement released this morning, the American Bar Association applauded the move, stating that it urged Mr. Holder to do away with the policy last year.

"Respect for the integrity of the criminal justice system requires a fair process, conflict-free defense counsel and the proper administration of justice," ABA President William C. Hubbard's statement reads. "With a high percentage of criminal cases decided by guilty pleas, the routine use of waivers of ineffective assistance of counsel can create a conflict of interest and insulate attorney conduct from judicial review."

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