Washington, DC (Oct. 14, 2014) – The U.S. Department of Justice today announced new department policy on waivers of claims of ineffective assistance of counsel (IAC) in a memo to all federal prosecutors from Deputy Attorney General James M. Cole. It reads in part:
Federal prosecutors 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. For cases in which a defendant's ineffective assistance claim would be barred by a previously executed waiver, 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.
Today's announcement comes on the heels of a landmark decision handed down on August 21 of this year in U.S. v. Kentucky Bar Assn. There, the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of IAC waivers in plea agreements violates Kentucky's Rules of Professional Conduct. In that case, the National Association of Criminal Defense Lawyers (NACDL) filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky.
The Kentucky Bar Association had adopted Ethics Opinion E-435 in late 2012, shortly after the NACDL adopted Formal Opinion 12-02, cited in August's Kentucky Supreme Court decision. The 2012 NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.
NACDL President Theodore Simon said: "While we appreciate today's announcement by the Department of Justice of this new policy, it rights a wrong that should never have been a practice employed by federal prosecutors. The extraction of these types of waivers not only created an inherent conflict of interest for defense counsel, they deprived defendants of a claim that cuts right to the heart of their Sixth Amendment right to counsel – the right to competent counsel. It is critical that all states and territories follow the DOJ's lead and abandon this practice without delay."
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