Tagged: policy

ICC Prosecutor Expresses Concern About Upcoming Elections in Burundi

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.

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.