Tuesday, July 17, 2012

"Our system of pleas then looks more like a system of railroading."

That's the NY Times op-ed discussing appellate waivers, one of the dirty little secrets of the federal criminal justice system. Here's more:

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself. 

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.


Anonymous said...

I really like your blog. But, can you lay off the appellate waivers for a bit. As soon as I see the header, I go to another page. Maybe It's just me, not you.

Rumpole said...

Right barn, wrong horse. The coercive nature of criminal court is not the appellate waiver. It's the trial tax- the enhanced sentence the prosecution seeks when you go trial and lose. The way to handle this- as a state court practitioner told me recently he does in all cases- is when the defendant announces that he wants to go to trial and the prosecution then says either it is revoking the plea offer or will see x more time after trial is to stop the proceedings and ask why? What will change during the trial other than the defendant invoking his or her constitutional right to make the prosecution prove their case? Why should a person be punished for making the prosecution work? Now of course there can be very limited exceptions- going to trial when a child victim has to testify has traditionally been a reason in state court that the prosecution would revoke a plea offer and seek a higher sentence. But beyond that, defense attorneys need to out prosecutors and judges on the spot when they threaten the client. The case law about vindictive sentencing is out there. We need to use it.

Anonymous said...

rumpole - trial tax on ticket cases? come on bro....leave the trial discussions to trial lawyers.

Rumpole said...

It bothers you so much that 1) I have paying clients and 2) I get to try serious cases.

Care for a little wager? Take your foot out of your mouth, stop sitting at home going on porn sites and put your money where your mouth is. $1,000 a felony jury trial- fed and state. DOM will judge I can show plus 110 in Dade alone. How about you?

Rumpole said...

Chump. All mouth no show. Anonymous coward to boot.

Anonymous said...

Just to be clear. I am not the anon that posted at 1:20 pm. I posted at 10:27. Nothing to do with that other post. My name is Justin R Parafinczuk.