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DOJ: Guilty Pleas Won't Require Waiver for Bad Counsel Claims

By Brett Snider, Esq. on October 15, 2014 | Last updated on March 21, 2019

The Department of Justice will no longer ask defendants who accept a plea deal to waive their rights to appeal their case based on bad advice given by their defense attorneys.

This is a bit of a departure from plea bargain tactics employed by federal prosecutors, which sometimes involve requiring an appeal waiver for any sort of plea deal. According to The Associated Press, this might not be that big a change, as only 35 of the 94 U.S. Attorneys' offices request that defendants pleading guilty give up their right to sue over ineffective counsel.

What does this change in DOJ policy mean for criminal defendants in federal court?

Appeals for Ineffective Assistance of Counsel

Ineffective assistance of counsel (IAC) is a common claim among criminal defendants, especially those who have accepted plea bargains. An appeal based on IAC essentially claims that the defendant's lawyer was so bad that it deprived the defendant of his or her constitutional rights. This can include both the defendant's rights to a fair trial as well as his or her rights to a lawyer under the Sixth Amendment.

Often defendants are talked into accepting a federal plea bargain after only one day of conferring with his or her attorney, leaving much of the decision in the criminal defense lawyer's hands. In a successful appeal for IAC, a defendant may be able to prove that his or her attorney was fundamentally wrong in recommending a plea bargain, and the court may allow him or her to withdraw the plea.

The operating procedure for many federal prosecutors, as displayed in this federal Criminal Resource Manual, was to have a defendant waive his or her right to appeal whatever sentence was imposed based on the government's plea bargain. Under the new DOJ policy, Attorney General Eric Holder is confident that prosecutors will be able to do their jobs without forcing defendants to give up their appeal rights. As Holder said in a statement Tuesday, a "vast majority of them already do."

Still a High Bar for Appeal

Just because the DOJ isn't requiring appeal waivers for IAC claims doesn't mean that these appeals are easy to win. A defendant still must prove that a bad attorney's advice actually prejudiced him in the outcome of his case. In other words, if a defendant wouldn't have gone to trial no matter what his attorney had said, it's unlikely that an appeal alleging IAC (based on the attorney's plea-bargain advice) would succeed.

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