An Appealing New Rule Part II

The New York Times editorial I blogged about yesterday included a link to Stemming the Tide of Postconviction Waivers, by FAMM Litigation Advisory Board member Todd Bussert and longtime FAMM friend, Alan Ellis. It lays out the obvious and not so obvious pitfalls for defendants and defense counsel when prosecutors insist on post-conviction waivers.

Post-conviction waivers are especially nasty conditions from the government. Why? Because they insist that the defendant “abandon[] the unknown.” What does that mean? It means the government wants to force defendants to give up their right to challenge serious mistakes, not only those that might have already occurred but also those that will be made after they sign the waiver.

Let’s say a defendant waives her right to bring a habeas corpus challenge after she is convicted. She is agreeing that -- even if the attorney who represented her did such an appallingly poor job of lawyering that he violated her constitutional right to effective assistance of counsel and she would be entitled to having her conviction vacated (in essence, get a do-over with another lawyer) -- she gives up her right to ask a court to review his performance.

The kicker: the attorney who advises her to waive her rights is . . . the constitutionally deficient attorney.

Moreover, as Todd and Alan point out: 

[E]ven the most seasoned criminal defense attorney will struggle with the complexities and arcane jurisprudence of habeas corpus . . . . The cold reality is that most defendants do not comprehend, nor could they articulate, the array of claims that could potentially be brought through a direct appeal or [habeas corpus]. 

Conscientious defense lawyers of course recognize and confront this ethical dilemma. Defendants are constitutionally entitled to a lawyer who does not have competing interests. “Yet when reviewing and explaining a plea agreement that contains a [postconviction] waiver provision, defense counsel is put in the untenable position of having to render advice about [the] quality of legal representation to date . . . or .. . about the quality of” the lawyer’s representation that has not yet even occurred.

Stemming the Tide walks the reader through the best thinking in this area. It talks about how lawyers can help their clients avoid such waivers, make better informed decisions, and hopefully preserve their constitutional post-conviction rights.

Thank you Todd and Alan!

Mary Price

Vice President and General Counsel