Tuesday, July 17, 2012

Trial Judge to Appeals Court - Review Me - NYTimes.com

Earlier this year - in Lafler v. Cooper the Supreme Court observed that incompetent advice that led a defendant to spurn a plea offer entitled the now convicted criminal to a remedy. In Padilla v. Kentucky (2010) the court found that defendant was entitled to vacate his conviction because the "consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect." All this reflects the reality that prosecutors not judges effectively run the criminal courts. One of the most powerful wedges is insistence on the waiver of right of appeal as a condition of accceptance of a plea offer. The Times commented today on the excessive power that the practice places in the hands of prosecutors. - GWC

Trial Judge to Appeals Court - Review Me - NYTimes.com
"Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.” In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court"
The Times editorialists observe further:
In a sample of almost 1,000 federal cases around the country, agreements included waivers about two-thirds of the time and more often in some places. Every federal appeals court has ruled that in general waivers are enforceable as part of the efficient administration of justice.
Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

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