Tagged: Sixth Amendment

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.

The Electronic Footprints of the Mind: Justin Ross Harris, Search History, and Mens Rea

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

ImageThe District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.

The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.

Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death.  The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:

… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.

Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420  (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)

Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,

communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.

While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:

When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104 (1933).

Related Readings:

Cases: