As many of you may know, Monroe H. Freedman died on February 26, 2015. His funeral was held yesterday, March 1, 2015 and his obituary is available at this link.
Criminal practitioners of all stripes owe a tremendous debt to Prof. Freedman. He was a dean, a scholar, a writer, an outspoken defender of civil rights and liberties. But for our community, what he really did was to provide intellectual and moral legitimacy to ethical criminal advocacy. Without his integrity, intelligence, and courage, criminal defense lawyers would still be accused of being no better than hired guns, having no moral compass. He legitimized zealous criminal advocacy by grounding it in law, ethics, and morality; and by his own intelligence and integrity. By doing so, he improved the quality of criminal litigation on both sides of the aisle. He inspired generations of law students and lawyers to do better with pride. His generous and open assistance to students, other professors, lawyers – to anyone who sought his help – was absolutely unique. He made us all better and he made the system better.
Last week, Deputy Attorney General James M. Cole issued a memorandum to federal prosecutors advising them that they should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” As to cases in which such waivers had already been entered, the memorandum advises that federal prosecutors should “decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”
The U.S. Supreme Court has not ruled on the validity of such waivers. The Court has clearly held, however, that the right to effective assistance of counsel applies to guilty pleas. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Following these holdings, every circuit court to address the validity of a waiver of the right to effective assistance of counsel – ten of twelve circuits – has upheld the waiver. United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998); United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Davila v. United States, 258 F.3d 448 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000); Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Interestingly, however, twelve state ethics opinions have held that insisting on such a waiver is unethical. See, e.g., United States v. Kentucky Bar Ass’n, 2013-SC-000270-KB (Ky. Aug. 21, 2014), and cases cited in footnote 37 therein. In addition, in a 2013 113E Resolution, the American Bar Association declared its opposition to ineffective assistance of counsel (IAC) waivers, and in October 2012 the National Association Criminal Defense Lawyers (NACDL) has issued a formal opinion (12-02) finding it unethical for defense lawyers to participate in such waivers.
The DOJ policy is important because it is a break with the growing momentum of waiver by guilty plea: it seems that over the years defendants have been asked to waive more and more rights as part of a plea bargain. Ultimately, although problematic, many defendants are now required to waive the right to appeal or to appeal and collateral attack as part of a guilty plea. The DOJ directive mark an important exception to these practices.
The DOJ policy memorandum is significant for another reason. In other jurisdictions, like the United Kingdom, internal prosecutorial procedures and policies are publicly available and provide some limitations on what would otherwise be unlimited prosecutorial discretion. This is an excellent way to create at least a presumption that the prosecution is behaving fairly.
Finally, there are those who wonder whether the prosecution (or the courts) can or should do more when confronted by deficient performance of defense counsel. See, e.g., Vanessa Merton, What Do You Do When You Meet a “Walking Violation of the Sixth Amendment” If You’re Trying to Put That Lawyer’s Client in Jail?, 69 Fordham L. Rev. 997 (2000). They are on the front lines, if you will; aside from the ethical obligation to report unethical conduct by other lawyers, prosecutors generally have no duty to protect a defendant from the ineffectiveness of his or her counsel. Thankfully, by virtue of the DOJ memorandum, federal prosecutors have accepted the duty not to participate in hiding these claims from review.
A Columbia County Supreme Court Judge has ordered a new parole hearing for a defendant convicted of murder and sentenced to 20 years to life imprisonment who has already served 32 years in prison. The defendant had sought to produce the minutes of his original sentence, which he claimed contained a sentencing recommendation and showed that the sentencing court had decided to impose a 20 year minimum and rejected the maximum of 25 years to life. The district attorney’s office claimed that despite numerous attempts to locate the original sentencing minutes they could not be found.
The judge’s chambers undertook its own search and found the minutes within approximately 30 minutes.
The court expressed concern about the district attorney’s conduct and characterized it as either lack of diligence or deliberate indifference. It expressed concern that the conduct was routine, and declined to wait until it could be determined if that conduct was sanctionable.
A tip to practitioners: the court’s search had uncovered a 2008 letter from the chief court reporter for Nassau County that indicated the minutes were not unavailable. The court noted, however, that under 22 NYCRR §800.9(b)(5), sentencing minutes are required to be part of the record on appeal from a conviction and are archived by the State Library.
The court also took the parole board to task for considering materials, including victim impact statements, that contained “unfounded assertions” and were “emotional,” “extremely inflammatory.” It also criticized the parole board for failing to comply with N.Y. Executive Law §259-i(2)(a), which requires that the board’s recommendation against parole directly address comments before the board.
- Joel Stashenko, Judge Orders Parole Hearing After Finding ‘Lost’ Records, NYLJ (Sept. 29, 2014).
The protection of the attorney-client privilege has become less sacrosanct in our criminal justice system. Government practices to encroach upon the attorney-client relationship have become more invasive and widespread than ever before. For example, the prison email system has become a blueprint for maximizing the government’s leverage in interfering with one’s right to counsel and to deviously induce waivers of the attorney-client privilege.
Recently, a Federal Court in Brooklyn (EDNY) has upheld the troubling practice of federal prosecutors searching for incriminating evidence (i.e. admissions) by reading emails between defendants and their attorneys sent through the prison email system (“TRULINCS”). The government had claimed that the practice of reading all inmate emails was solely the result of a lack of financial funding, and the Federal Bureau of Prisons (“FBOP”) cannot afford to incorporate a screening system that would separate inmate emails to attorneys. Prosecutors failed to mention, however, that federal inmates must actually pay to use the prison’s email and telephone systems, and that the recipients of such communications must be pre-approved by the FBOP. The FBOP generally creates a list of approved contacts for each inmate, and maintains a copy of such list within its database. The list not only identifies each of the inmate’s approved contacts, but also notes each contact’s relationship with the inmate (i.e. Spouse, Friend, Attorney).
Nevertheless, the Court found that federal prosecutors could legally review inmate emails with lawyers, because federal inmates receive prior warning that their communications will not be treated as privileged and must accept those terms prior to using the email system provided by the FBOP. The Court also noted that the FBOP’s failure to provide a privileged form of email communication does not infringe upon an inmate’s right to counsel, since inmates could still privately access their attorney through other forms of communication. The Court observed that inmates are provided sufficient alternative means to engage in privileged communications with lawyers by phone calls, mail, and in-person visits.
What the Court’s opinion fails to appreciate, however, is that email communication is the most efficient and viable form of communication used by lawyers in the twenty-first century. The suggestion that inmates could use other forms of communication to contact lawyers in the federal system is simply fantastical, especially for inmates seeking to access their lawyers for post-conviction matters.
Indeed, email communication may be the only viable way for an inmate to effectively communicate with a lawyer, since the FBOP designates inmates to be housed throughout the nation without regard to the jurisdictional location of their conviction. In post-conviction matters, attorneys may be required to travel across the country in order to conduct a legal visit with a client, which may pose significant financial and practical burdens on both the inmate and the attorney’s law practice. Likewise, the FBOP mailing system inherently poses significant delays in the transmission of communications (i.e. prison mailbox rule), and prison counselors usually require an attorney to provide notice weeks in advance before even approving an inmate’s request for either a legal visit or legal telephone call.
Notably, there appears to be a split amongst the courts in Brooklyn as to whether the government’s unfettered practice of reading attorney-client emails over “TRULINCS” can continue to occur. In a Medicare Fraud prosecution, Federal Judge Dora Irizarry of the Eastern District of New York ordered the government to refrain from reading the defendant’s prison emails with his attorneys. Judge Irizarry rejected the government’s claim that it was too expensive or burdensome for the FBOP to separate emails, noting that the practice was truly controlled by the government’s interest in gaining an adversarial advantage:
That’s hogwash… You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”
In the end, allowing the government to review communications between inmates and their lawyers is a destructive and unethical practice. There is simply no justification for allowing this dangerous practice to continue, and the feeble excuses offered by federal prosecutors are simply unavailing. Unfortunately, the government’s encroachment upon attorney-client communications diminishes a criminal defense lawyer’s ability to provide effective representation. Indeed, a inmate’s ability to engage in the continuous flow of privileged communications with an attorney is paramount to the development of the attorney-client relationship, and the cornerstone to the lawyer’s ability to provide effective representation in both pre-trial proceedings and post-conviction matters.
It is to be hoped that the government’s position will at least remain consistent when astute criminal defense lawyers begin seeking the disclosure of all prison email communications between the prosecution’s cooperating witnesses and their lawyers, federal attorneys, and FBI Agents in either pre-trial discovery motions or by Freedom of Information requests. Only time will tell whether federal prosecutors truly believe that prison emails between an inmate and an attorney can never be protected by the attorney-client privilege, and will freely accede to defense requests under its Brady and Giglio obligation.
- United States v. Asaro, No. 14-Cr-26(ARR) (July 15 2014).
- United States v. Ahmed, No. 14-Cr-00277 (E.D.N.Y. June 27, 2014) (Minute Entry for proceedings held before Judge Dora Lizette Irizarry: Status Conference as to Syed Imran Ahmed held on 6/27/2014).
- Stephanie Clifford, Prosecutors Are Reading Emails From Inmates to Lawyers, The New York Times (July 22, 2014).