Reading the various plea agreements that have been made public in the public corruption scandal in El Paso there was one thing that stood out for me – the waiver of rights the agreements included. It was curios to me because the plea agreements included language whereby the defendant waived the right to any future appeals to their guilty plea. On the surface, this made since because, as I understand it, the defendant was entering into a contract whereby he expected a lesser sentence in return for avoiding the expense of a trial.
However, as the public corruptions cases went through the process, at least three defendants appealed their guilty pleas and at least one, Adrian Peña, successfully had his guilty plea vacated by the Fifth Court of Appeals. The language in the plea agreements included wording that the defendant pleading guilty waived the rights to “speedy and public jury trial” and the normal rights that many of us are familiar with through Law and Order type of television shows. They also included the wording that the defendant waived “the right to contest the sentence” that the court may impose on them.
Some of the court transcripts for the actual plea included a question and answer session where the defendant agreed that they would not contest their guilty plea because of the numerous “rights” except for instances where the prosecutors violated the plea agreement or because of ineffectual legal representation. For example, the December 9, 2011 Plea of Guilty transcript for Dolores Briones included the following exchange. The Court tells Briones that she can appeal her plea only for “two very limited situations” with one of them being if she received “ineffective assistance” from her lawyer.
Likewise, the Adrian Peña Plea Agreement included that statement that Peña could appeal his guilty plea as a result of “ineffective assistance of counsel”. The more I thought about these waivers of rights the more they made sense to me because other than ineffective legal advice the defendant presumably was making an informed decision to plead guilty in return for something.
After all, presumably, the basis of US jurisprudence depends on effective legal representation and thus a guilty plea is supposed to be the result of competent legal advice. Therefore, since the object of the plea agreement is to expedite the process, it made sense that the only reason to appeal a guilty plea was because the defendant received bad information from their attorney or because the prosecutors violated their rights.
Therefore, I was surprised to read an Eric Holder memorandum to his prosecutors that his office will no longer require defendants’ pleading guilty to waive their right to ineffective counsel. Shortly after Holder announced he was leaving I started to see commentary online about an upcoming announcement by him telling his prosecutors to stop requiring the waiver of ineffective counsel. It caught my attention because as far as know, none of the El Paso defendants waived their rights to appeal based on ineffective lawyers. Yet, there seemed to be some national controversy about this in other jurisdictions. In the case of the El Paso guilty pleas, the only issue seemed to involve the judge sealing numerous court records and his involvement in the plea negotiations.
Holder’s October 14, 2014 memorandum issued a new policy for the prosecutors telling them that they were no longer to “ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel”. As far as I know this was not an issue in the El Paso cases, however looking through the online commentary apparently there has been some discussion about this waiver at the national stage.
As I wrote initially, it is my opinion that a defendant pleading guilty should waive their rights except for the cases of faulty legal representation or prosecutors violating the defendant’s rights. Other than that, the idea of the guilty plea is to receive a consideration for saving the taxpayers the expense of having to prosecute the defendant.