Thursday, October 23, 2014
From a comparative criminal procedure perspective, one of the striing differences between the United States and other jurisdictions, for example, the United Kingdom, is the absence here of internal prosecutorial manuals or directives that set forth standards or criteria for prosecutorial decision making and against which such prosecutorial conduct may be judged. State prosecutor's offices rarely, if ever, have such documents and, if they do, they are rarely available for public scrutiny. One refreshing exception, however, is the US Department of Justice US Attorney's Manual. Although phrased in general terms in places, this manual addresses psoecutorial decision making throughout the process.
Another related and refreshing exception is the availability of DOJ Memoranda addressed to US attorneys concerning issues that may arise in the course of a prosecution. For example, last week, Deputy Attorney General James M. Cole issued a memorandum to federal prosecutors advising them that they should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” As to cases in which such waivers had already been entered, the memorandum advises that federal prosecutors should “decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”
This is an important memo, not only because it presents a standard against which prosecutors can now be held accountable, but also because the issue of waiver of rights by pleading guilty is a critical one. The DOJ memo represents a break in the growing momentum of waiver by guilty plea: it seems that over the years defendants have been asked to waive more and more rights as part of a plea bargain. Ultimately, although problematic, many defendants are now required to waive the right to appeal or to appeal and collateral attack as part of a guilty plea. The DOJ directive mark an important exception to these practices.
While the U.S. Supreme Court has not ruled on the validity of waivers of the right to raise a claim of ineffective assistance of counsel, the Court has clearly held that the right to effective assistance of counsel applies to guilty pleas. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Following these holdings, every circuit court to address the validity of a waiver of the right to effective assistance of counsel – ten of twelve circuits – has upheld the waiver. United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998); United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Davila v. United States, 258 F.3d 448 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000); Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Interestingly, however, twelve state ethics opinions have held that insisting on such a waiver is unethical. See, e.g., United States v. Kentucky Bar Ass'n, 2013-SC-000270-KB (Ky. Aug. 21, 2014), and cases cited in footnote 37 therein. In addition, in a 2013 113E Resolution, the American Bar Association declared its opposition to ineffective assistance of counsel (IAC) waivers, and in October 2012 the National Association Criminal Defense Lawyers (NACDL) has issued a formal opinion (12-02) finding it unethical for defense lawyers to participate in such waivers.
Finally, there are those who wonder whether the prosecution (or the courts) can or should do more when confronted by deficient performance of defense counsel. See, e.g., Vanessa Merton, What Do You Do When You Meet a "Walking Violation of the Sixth Amendment" If You're Trying to Put That Lawyer's Client in Jail?, 69 Fordham L. Rev. 997 (2000). They are on the front lines, if you will; aside from the ethical obligation to report unethical conduct by other lawyers, prosecutors generally have no duty to protect a defendant from the ineffectiveness of his or her counsel. Thankfully, by virtue of the DOJ memorandum, federal prosecutors have accepted the duty not to participate in hiding these claims from review.