Academic journal article Washington and Lee Law Review

Waivering about the Dirty Business of Plea Bargains-A Comment

Academic journal article Washington and Lee Law Review

Waivering about the Dirty Business of Plea Bargains-A Comment

Article excerpt

Praise to Leanna Minix for untangling the twisted paths federal courts have blazed, which all lead to the same dead end. Ms. Minix hacked through the undergrowth of Federal Rule of Criminal Procedure 111-the rule governing what judges must do to ensure that a defendant's guilty plea will survive later scrutiny-and shined a light on the ways different circuits have chosen to accomplish that task. As she has convincingly demonstrated, most circuits employ overly narrow tests for evaluating claimed violations of one of the most controversial, yet now "standard" provisions in federal plea bargains-waiver of the right to appeal.2

The federal courts have made quick work of most attempts by defendants to review the results of plea bargains that turned out to be no bargain. This is most frequently the case when the sentence a defendant fully and justifiably believed he would get turns out to have been just a fond wish. Courts are able to evade a higher level of scrutiny on review because of the restrictive Dominguez-Benitez test,3 which holds that a defendant who failed to object to a faulty Rule 11 colloquy is barred from appealing unless he shows "a reasonable probability that, but for the error, he would not have entered the plea."4

Use of this test is particularly troubling when the bargain requires the defendant to waive his appeal rights, which in the context of a guilty plea boils down to a single right-the statutory right to have an appellate court review the propriety of the sentence, within strict limits.5 There is no appeal from any other aspect of the prosecution (e.g. bad searches, bad wire-taps, bad interrogations). All other claims are automatically waived once the defendant pleads guilty. Nevertheless, as Ms. Minix notes, all the circuits have held allegedly "bargained-for" appellate waivers constitutional, and Rule 11(b)(1)(N) "green-lights" the practice by requiring that the court specifically address that waiver in the plea colloquy. When a defendant waives appellate rights, there is no relief when the court imposes an unexpected sentence. But taken to its extreme, a valid appellate waiver might even bar claims that the plea was not voluntarily and intelligently made, which is a constitutional baseline in the world of guilty plea jurisprudence.6

Given this sorry state of affairs, Ms. Minix's suggestion that the courts explicitly adopt an expanded test for reviewing a defendant's un-objected-to failure of the trial court to ensure the defendant understands he is giving up his right to appeal is, in a word, appealing. Her test adds to the Dominguez-Benitez test by requiring appellate courts ensure the defendant's waiver is voluntarily and intelligently made.

Of course, a quick review of the cases shows what should be no surprise. Courts are extremely hostile to efforts to undo guilty pleas. Expanding the test governing un-objected-to, faulty colloquies about appellate waiver will bring needed uniformity, as Ms. Minix argues, but may still not lead to relief for an aggrieved defendant. The larger problem is the gross unfairness of modern federal plea bargaining itself.

How is it that the plea-bargaining industry is so unfair? And why is it that forcing a defendant to waive her rights to appeal a sentence is so unjust? The thoughts in this Comment are not intended to thoroughly address what I perceive to be the underlying problems with plea bargaining as it exists today. Rather, they reflect my quick take on the issue based on my own experience as a lawyer who has spent the past forty-two years representing those charged with federal offenses and negotiating with federal prosecutors. Others have written extensively on the legal underpinnings of plea bargaining in the modern age, and I recommend their works to you.7

As preface, it is my belief-a belief shared by many criminal defense lawyers-that in the modern era, plea bargaining is a sham. Bargaining implies that the parties come to the table operating with the same set of rules. …

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