Tagged: Department of Justice

DOJ Policy Bans Waiver of Ineffective Assistance of Counsel Claims as Condition of Guilty Plea

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.

DOJ Adopts New Policy Requiring Electronic Recording of Statements

The Justice Department has announced a new policy that will require federal law enforcement agencies to electronically record interviews with suspects.  According to Attorney General Eric H. Holder Jr.,

Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights.

The new policy will require federal law enforcement agencies to record interactions with a detained suspect during the time between the suspect’s arrest and initial appearance before a judge. Notably, the new policy also suggests that officials should consider using electronic recording devices during other investigative situations, including witness interviews.

This is a stark change from the Department’s prior policy, which expressively prohibited the use of recording equipment by law enforcement agencies when conducting interviews with suspects. The Justice Department was previously concerned that the use of recording devices would undermine investigative techniques of federal agencies, and would discourage suspects from talking. The Department also once expressed that jurors may frown upon FBI interviewing techniques, and have “unfavorable impressions of agents” had they heard verbatim accounts of such interrogations.

Mr. Holder discounted these concerns, explaining that federal officials should be more committed to a process that exemplifies evenhanded enforcement of the law, and the new policy would “provide verifiable evidence that our words are matched by our deeds.” He noted that it is of great importance for federal agencies to ensure that the statements of suspects are accurately recorded, and that suspects are afforded their constitutional rights during interrogations with federal agents.

National Association of Criminal Defense Lawyers President Jerry J. Cox was pleased to hear about the Justice Department’s policy change, noting that the use of electronic recording during interviews

protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.

Mr. Holder has already begun the implementation of the new policy, and has instructed United States attorneys and agency field offices to begin training sessions. As of July, the new policy will apply to the FBI, DEA, ATF and U.S. Marshals Service.

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Second Circuit Targets “DOJ White Paper” in Sanctioned-Killings

A three-judge panel for Second Circuit Court of Appeals has recently ordered the United States Government to release portions of a Justice Department memorandum (“DOJ White Paper”) that purportedly contains classified information regarding the targeted killing of Anwar al-Awlaki. In 2011, Anwar al-Awlaki, a United States citizen alleged to have joined Al Qaeda forces, was killed during a targeted drone strike in Yemen. His killing, along with some other alleged terror suspects, were sanctioned by the United States targeted-killing program in the “War on Terror.”

In New York Times Co. v. Dep’t of Justice, the Court ruled that partial disclosure of the “DOJ White Paper,” sections setting forth the government’s reasoning as to lawfulness of its targeted killings of United States citizens carried out by drone aircraft, was justified given the government’s public statements discussing Awlaki’s death. The court observed that senior Government officials had undertaken

an extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.

The court further concluded that such limited disclosure would not impinge upon any attorney-client privilege matters between the government and the DOJ’s Office of Legal Counsel, nor would disclosure risk “any aspect of military plans, intelligence activities, sources and methods or foreign relations.”

In a prior editorial, the New York Times noted that the “DOJ White Paper” was of monumental importance to help settle the significant legal debate that has transpired since the targeted-killing program was made public. Many legal scholars have long awaited the release of the “legal reasoning” that has been drummed up by government officials to justify the targeted-killing program. Many scholars have remained skeptical of the government’s analysis, and have wondered whether it is ever lawful for the government to conduct targeted killings of American citizens, observing that the targeted-killing of any United States citizen may inherently contravene

executive orders banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.

Last year, U.S. District Court Judge Colleen McMahon denied the request of the New York Times and the American Civil Liberties Union to obtain an unredacted version of the Justice Department’s memorandum pursuant to the Freedom of Information Act. In response to the District Court’s ruling, the ACLU expressed that

[t]his ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures.

At the time, ACLU deputy legal director Jameel Jaffer also suggested that the “targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy.” Jaffer advocated that the memorandum should be unsealed, because “[t]he public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”

Related Readings

Execution Halted due to Dept. of Justice review of FBI Hair Analysis

Willie Manning was scheduled to be executed in Mississippi on Tuesday, May 7, 2013, despite pleas from his lawyers for time to conduct DNA testing of hair found in the clenched fists and on the clothes of the woman Manning was convicted of murdering. The hairs were not the victim’s and Manning’s lawyers thought that DNA testing could provide evidence of innocence by pointing to an alternative perpetrator. Last minute requests for a stay to permit testing were ignored by the courts until the FBI weighed in on the case.

Simultaneously, while lawyer’s battled to save Manning’s life, the Department of Justice was engaged in conducting a full internal review of all cases where FBI agents performed forensic hair analysis and subsequently testified in trials about the analysis. DOJ undertook the review because in too many cases, post-conviction DNA test results showed FBI agents  testified inaccurately and unscientifically about hair comparison. DOJ identified Willie Manning’s case as one where the FBI agent provided false testimony at trial — testimony that was used by the prosecutor in closing to link Willie Manning to the crime scene. The FBI now admits that the agent’s testimony that the hair came from a member of the “black race” is scientifically invalid. The case was given priority because of the impending execution.

When the FBI position was brought to the attention of the Mississippi Supreme Court, the Court granted the request for a stay by a vote of 8 to1. The majority did not write an opinion. The dissent, in a rambling colloquy, faulted the FBI for working with the Innocence Project and the National Association of Criminal Defense Lawyers – even though the organizations were all joined in a search for scientific accuracy.

Read the decision here: Manning Stay

Did you know that post-conviction DNA testing statutes are far from uniform? Have you ever used CPL 440.30(1-a)? What was your experience?