CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, October 18, 2014

"Eric Holder's Piddling Change to Appeal Waivers"

Bill Otis has this post at Crime & Consequences:

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

. . .

To me, and in practice, this is no big deal.
. . .  First, if the defense lawyer is actually incompetent (which is extremely rare in federal court), the client  --  almost always a layman  --  will not know this or have a way of finding out. His source of information is, after all, the very lawyer who's allegedly a dope.  So it seems fair enough that this claim be preservable even while the others are waived.
Second, defense lawyers are reluctant to call one another incompetent.  The main reason for this is that such an accusation is very seldom true (and truth does count with most defense lawyers, although not nearly as much as it should). Another factor is the clubbish, us-against-them mentality in the defense bar. Even in its truth-optional precincts, there survives the normal human instinct against cannibalism, which is, in a professional sense, what's actually going on when one defense lawyer accuses another of malfeasance.  An accusation like that can end an attorney's career.

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