Waiving appellate review

There has been quite a bit of discussion recently of waiving appellate review as part of a pretrial agreement.

Here is a timely article from the ABA about this important topic (thanks to Sentencing Law & Policy for the link).

Ellis & Bussert, Stemming the Tide of Postconviction Waivers, 25 (1) Crim. Justice, Spring 2010, ABA.

Over the last several years, waiver of a defendant’s appellate and postconviction rights has become a standard feature of plea agreements in federal cases. While courts uphold a knowing and intelligent relinquishment of rights, these waivers are not without limits. This article suggests areas about which defense counsel should be aware in order to afford clients the greatest opportunity for postconviction relief. In particular, we explore ethical constraints on defense counsel’s ability to advise clients and to shield themselves from ineffective assistance claims, as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims.

Among their cautions about the use of waivers, they make three recommendations to defense counsel.

First, defense counsel should be assertive in seeking revisions to plea agreements that preserve a client’s claims of ineffective assistance of counsel or prosecutorial misconduct. Counsel must make clear to the government that notwithstanding a guilty plea, the client retains the right to file a motion pursuant to 28 U.S.C. § 2255 (and AEDPA) that challenges the constitutional quality of trial or appellate counsel’s representation not merely representation as it concerns counsel’s advice and performance related to entry of the guilty plea—the consideration on which courts ordinarily focus. Second, to the extent that the proposed plea agreement includes the common refrain that the “defendant also acknowledges his complete satisfaction with the representation and advice received from his undersigned attorney,” counsel should compel the government to add “though his attorney could not, and did not, advise him in this regard.” If the government balks as to either, counsel is obliged to raise the points on the record so that the issue(s) is preserved. Finally, where the foregoing steps have not been taken or the record is silent as to the same, counsel in postconviction proceedings seeking to advance an ineffective assistance of counsel claim should point out that the defendant was deprived of counsel, contrary to the protections of the Sixth Amendment, as to that portion of a plea agreement, thereby rendering that portion of the agreement unenforceable.

The piece concludes:

While we recognize that there exists a systemic interest in finality and minimizing meritless claims, the appeal and postconviction waivers that have crept into the federal plea negotiation process require diligent attention. Justice is not served by impediments to valid claims that would otherwise afford relief. Defense counsel, in particular, are obliged to voice ethical considerations that can and should prevent the government from foreclosing available avenues and to ensure that every client’s relinquishment of rights is knowing and voluntary.