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Holder Strikes Down Waiver of Appeal Rights

Craig Grimes raised a valid argument in a recent case that before the United States Court of Appeals for the Third Circuit. The case was United States v. Grimes and centered around the waiver of his appeal rights in a plea agreement. The argument was that the conviction or sentence does not preclude him from making an ineffective assistance of counsel claim.

Sentenced to 41 months in prison on his sentencing date, Grimes was informed by the district court judge that he had a limited right of appeal. Included in the plea agreement was a statement from the court which read, “These waivers are usually enforceable, but if you believe that the waiver you executed in this case is unenforceable, you are entitled to present that theory to the appellate court.” This left the door open for Grimes to file an appeal, which he did shortly thereafter.

Now enter recent action from Eric Holder, the outgoing Attorney General who announced on October 14, 2014 that the Department of Justice will no longer ask defendants that are pleading guilty to waive their right to appeal for ineffective assistance of counsel claims. The modest change in policies by the DOJ brought immediate praise from defense lawyers and local bar associations, but some still claim the move does not go far enough.

In light of recently enacted ethics decisions, defense attorneys are reviewing the new change in language on proposed plea deals and sentencing agreements. In some cases, the DOJ might still disagree, asserting that adequate independent counsel was provided.

The new change was released by internal memo on Tuesday as notice of Holder’s decision from Deputy Attorney General James Cole. Cole sent notice through both a memo to federal prosecutors and by way of conference call later in the day. At the moment of release, 35 of the 94 United States Attorney Offices were seeking waivers to block defendants from pleading guilty, just to later invoke their right of appeal on the basis of ineffective or incompetent representation from legal counsel.

The Tuesday statement included a comment from Holder that reaffirmed the contents of the memo. “Under this policy, no defendant will have to forgo their right to able representation in the course of pleading guilty to a crime,” said Holder. “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,” he went on to say.

Holder wasn’t the only one to release a comment regarding the decision. The National Association of Criminal Defense Lawyers also made a statement. NACDL President Theodore Simon said, “While we appreciate today’s announcement by the Department of Justice of this new policy, it rights a wrong that should never have been a practice employed by federal prosecutors.”

Simon further stated that,

“The extraction of these types of waivers not only created an inherent conflict of interest for defense counsel, they deprived defendants of a claim that cuts right to the heart of their Sixth Amendment right to counsel – the right to competent counsel. It is critical that all states and territories follow the DOJ’s lead and abandon this practice without delay.”

The new change in policy for waivers of appellate and collateral rights already have defense attorneys seeking to review current cases and how this recent development could affect them. As Attorney General Holder’s six-year tenure draws to an end, it has left many wondering if other policy updates or revisions similar to this one could be forthcoming before his departure.

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