<< News Scan | Main | What the Ebola Appointment Tells Us About the Next AG >>

Eric Holder's Piddling Change to Appeal Waivers

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.

Some background:  Plea agreements before the Sentencing Reform Act of 1984 uniformly contemplated that they would end the litigation.  Indeed, that was their whole point. The defendant generally got reduced charges and a more lenient sentence, and the prosecution got the certainty of a conviction while saving the taxpayers the expense of extended litigation.

When the SRA made sentencing appeals possible, the calculus changed.  It didn't take long to figure out that thousands of drop-dead guilty defendants would want to continue to litigate their sentences (as ever on the taxpayers' dime) simply because they have time on their hands, no costs to bear, and nothing to lose by trying.  Plus, they might correctly have figured, you can always wind up with a panel of Stephen Reinhardt wannabees, so, hey, look, lightening might strike.

I thus suggested to the US Attorney, and then to DOJ generally, that the government should insert in proposed plea agreements a provision that the defendant agreed to forgo a sentencing appeal.  (The waiver as I originally drafted it did not mention assistance of counsel issues one way or the other).  I initially encountered some skepticism that the waiver would fly, but eventually people came over.  In a few years, it became a standard provision in federal plea agreements, as it is now.

As noted, every court of appeals has approved them.  The defense bar, however, was hopping mad and still is.  I have been The Devil Incarnate to the defense ever since.  My then-clients, however  --  the taxpayers  --  have saved a huge amount in litigation costs, and the courts have been spared tens of thousands of frivolous, throw-it-up-against-the-wall defense briefs.

Of course, no defendant was ever forced to agree to the waiver, or to any other portion of a plea agreement.  If they wanted a trial, it was fine with me.  That is their constitutional right, and the USAO should be ready to prove in court what its indictments assert.

Fast forward to last week:  The Department has now decided that defendants should not be called upon to waive appeals that would allege ineffective assistance of counsel.  To me, and in practice, this is no big deal.

I have several reasons for this view.  First, if the defense lawyer is actually incompetent (which is extremely rare in federal court), the client  --  almost always a layman  --  will not know this or have a way of finding out. His source of information is, after all, the very lawyer who's allegedly a dope.  So it seems fair enough that this claim be preservable even while the others are waived.

Second, defense lawyers are reluctant to call one another incompetent.  The main reason for this is that such an accusation is very seldom true (and truth does count with most defense lawyers, although not nearly as much as it should). Another factor is the clubbish, us-against-them mentality in the defense bar. Even in its truth-optional precincts, there survives the normal human instinct against cannibalism, which is, in a professional sense, what's actually going on when one defense lawyer accuses another of malfeasance.  An accusation like that can end an attorney's career.

Third, the point I had in mind in creating the waiver was to cut appellate litigation costs, not eliminate them (which was beyond my power in any event). There were times when I would not enforce the waiver, to wit, when I thought the defendant in good faith had an arguable issue against the legality of his sentence. 

Accordingly, I think the Department's action this week is not without a reasonable basis, and that it won't make that much difference anyway.

P.S.  I see in the comments section of the SL&P entry I linked the following remark:  "Bill Otis has flat out admitted that he doesn't believe in the adversarial process, so that's why I could understand him wanting something like this. Effective representation of counsel doesn't matter to him as long as the defendant 'did it.'"

That sort of thing is one of the reasons I no longer comment on that blog  -- although, to be honest, it's a better-than-average comment by SL&P's non-existent standards.  

The reason it's better than average is easy to summarize:  The only thing wrong with the comment is that it's a point-blank lie.  This is a step up, believe it or not. I have set forth in the string here some of what passes for "argument" (starting at the 16th comment of the thread) by the followers of that blog.

Lying is the least of it.  The more telling problem is unbelievable filth, which the blog owner declines to block or even discourage.

The lie in the comment I noted is three-fold.  First, I am a big fan of the adversarial process and always have been; it's much of the reason I went to law school at all. Second, I never "admitted" otherwise; to the contrary, I have frequently noted my dissatisfaction with plea bargaining.  Third, I was thrilled to see high quality representation by defense counsel. For one thing, it made for a more entertaining fight.  For another, an incompetent defense lawyer always created tiresome work for me. I had to explain to the court the argument he was trying to make through his meandering sentences, tortured syntax and ideological gibberish.   I do plead guilty, however, to thinking  --  unlike the defense bar  --  that it makes a big difference whether the client did it.  Indeed, there are those of us who think that's what criminal litigation ought primarily to settle.    


Bill, I am troubled you are continuing your complaints now in multiple posts about my comment policy. But I continue to wonder about your definition of "filth" and how you think I should be policing comments, so I will list four comments based on a quick review of some comments on my site (all from commentors who do not use their real names in the comments):

1. What do you think about a comment stating that elected officials, by supporting a restriction on the death penalty, have "basically urinated on [a murdered] kid's grave." Should that comment be deemed filth and deleted?

2. Or how about a comment noting that a capital defendant "used little Jessica as a fuck doll for a week." Should that comment be deemed filth and deleted?

3. Or how about a comment saying another got "your ass kicked"? Should that comment be deemed filth and deleted?

4. Or how about a comment directed toward a former prisoner complaining that an "assertion that everyone is either raping or being raped (which one were you?) is a self-serving absurdity." Should that comment be deemed filth and deleted?

I ask all these (and will ask more) because I genuinely want to have a sense of what kind of censoring you think essential to have a proper comment policy. And I suppose I wonder if you think I should now go back and delete all these comments (and other similar ones).

Thanks in advance for your feedback.

You're "troubled" by my comments, but had not a single word of criticism for the guttersniping vulgarity of the comments made against my wife and me.

Far out!

Doug, the strategy of avoiding specifics on the gross, personal remarks you continue to tolerate against this family, and staying on offense instead, is not going to work.

For one thing -- and only one thing -- I see you completely avoid the main subject of this entry, appeal waivers, and likewise coddle to latest lie about my supposed position that I "don't believe in the adversarial process."

You're a Princeton and Harvard grad. Numerous other legal bloggers without anything like that pedigree have figured out how to implement basic standards of decency. If you won't, it's not because you can't, or that you need my help.

I am not saying I can't serve as speech/decency policeman, but rather that I worry it is not a good/wise use of my limited time given that I would surely censor in ways that reflect my own biases. I will continue to criticize --- as I have before and will again --- a lack of civility in society as well as in the comments to my blogs. But, notably, SC has been banned by all other blogs because "decent folks" do not like to hear his sharp criticisms of lawyers, whereas I find those criticisms quite important (though too often articulated by SC with a lot of what I see as "filth").

I would be happy to talk more about appeal waivers, which I think can/do have some merit in some settings (just like waivers of other rights in a plea deal), but I also think they should (1) always be bi-lateral to bind both parties, and (2) be voidable as against public policy in some settings (again, by both parties). I also have thought that, since it is unethical for a lawyer to ask a client to waive any malpractice claim at the outset of representation, it should be unethical to have a defendant be forced to waive his right to seek relief from getting ineffective counsel.

Finally, we can talk about the specifics of the gross personal remarks. What more do you want me to say others than that I agree with you that they are fifth, and I am sorry people too often do some filthy stuff on my blog, and that I will delete any such comment if that is what you would like me to do.

Like federalist, I tend to think such remarks reflect much more poorly on the author than the "victim" of such remarks. But if you, as the victim of such remarks, want them eradicated, I will be happy to do so. I am sorry if you (wrongly) think my non-police policy is a slight toward you or others. Rather, it is just a concession to my limited time and my limited ability to know what words and phrases cross the line (in your eyes or others).

As I think I mentioned before, I have received various requests from reasonable people to ban Supremacy Clause and federalist and you from commenting and/or to delete certain comments by you (and many others). I adopted my no-policing policy in large part to ensure federalist and Supremacy could speak their peace without fear of censorship, but you rightly have highlighted that my initial effort to allow a place for sharp right-leaning comments has now led to some (but not all) right-leaning folks to stop commenting at SL&P.

Here is a thought/offer: How about if I were to "hire" you to be my decency police? I surmise you may have the time, energy and judgment to get rid of the filth on my blog. I truly would be grateful if you would go through my comments and point me to comments I should delete. I am serious about this offer and truly am eager (1) to reduce the harm you feel from "the gross, personal remarks" you identify, all of which I will delete upon request, and (2) to have you serve as decency police on my blog so that we might get you and others back to making it a place for robust civil debate on important issues.


I sense your offer is made in good faith. I scarcely have the time for it -- I'm both teaching and doing public speaking this semester, and helping with career moves for some of my former students, so my time is squeezed just as yours is.

There are some conditions in which I would consider, anyway, signing on as the line-drawer. At nearly 3 a.m., I'm unlikely to get to all of them, but here are some:

1. I get the blogging key at SL&P.

2. I will use it to delete comments that are abusive, vulgar, deliberately insulting, insolent or plainly and intentionally deceitful.

3. I will exercise these criteria in good faith, but once exercised, there will be no appeal to you. I'm not going to do the heavy work of policing only to have it reversed when a spitter whines that he can no longer spit. If you want me for a rules system, there are actually going to be rules.

4. I will give miscreants 48 hours to recast their thoughts consistent with normal standards of accepted adult behavior and decency. If they do, up their comment will go. If they don't, they are banned for a period appropriate to the gravity of the transgression.

I think that might provide a blueprint for you.


Two further notes.

1. You say: "I adopted my no-policing policy in large part to ensure federalist and Supremacy could speak their peace without fear of censorship, but you rightly have highlighted that my initial effort to allow a place for sharp right-leaning comments has now led to some (but not all) right-leaning folks to stop commenting at SL&P."

That is a misidentification of the problem, which is two fold. The first part consists of vulgar, personal and (now) anatomical insults directed AT, NOT BY, CONSERVATIVES, with me as the main target. The second part is the toleration, without policing (or even reproach) of those doing the attacking.

Your effort, via no policing, to accommodate right-leaning comments has had the real-world effect of creating an upsurge of LEFT-LEANING COMMENTS -- left-leaning comments which vastly outstrip the more conservative ones in both their number and their scurrilous quality. Do you really think a neutral observer reading your blog over these last several months would say that the Federalist, TarlsQtr, Adamkis, tmm and I create the indecency problem? Are we the ones saying that other posters are necrophiliacs? Should "take it up the butt?" Should have our grandchildren piss on our graves? That our families are Nazi-collaborators helping the extermination of fellow Jews? Is that stuff the product of conservative commenting?

(N.B. You seem to want to keep tossing in SC. He is a poster unto himself; his main problem is that he seems transfixed by the "vile feminist lawyer cabal," and that he just keeps on and on with it, comment after comment. How you handle that is up to you, but it has nothing to do with the Leftist-driven garbage getting tossed at the conservatives).

2. I have elsewhere set forth what I would consider doing. It really shouldn't be my job, not ab initio. Instead, you should prominently announce that the following are immediately to come to an end on this blog: Gutter-level insult to any commenter; any references whatever to a commenter's family; scurrilous remarks of any kind; and spitting and the functional equivalent thereof. Commenters are to conduct themselves with not less than normal adult manners. You would require all commenters to agree to these rules without exception within 48 hours as a condition of further commenting. Those who agree get to continue. Those who feel like they have to use that kind of stuff are unlikely to have much of substance to add, and, even if they do, it will be outweighed by the trash, so they'll just have to find a different outlet until they learn to behave themselves.

I am eager to accept your offer to serve as decency cop on the comments beat, subject to your conditions (and with the understand this is an experiment we can decide to end at any time).

Importantly, I understand and agree with your identification of the current problem, which has now driven away those you mention. But I likewise encourage you to understand and respect that I first adopted a no-police policy largely because so many on the left urged, both in the comments and in e-mails to me, advocated for me to silence SC and a number of others (mostly right-leaning) based on their assertion that SC and others were making, in your words, "scurrilous remarks." Especially because I so dislike the way the PC police control/influence speech in the academy, I decided I would see what happens when I played no moderation or review role whatsoever.

As you rightly note, my effort to make a space for free speech for everyone ended up turning into a space where (seemingly left-leaning) commentors adopted uncivil means to bully/run off right-leaning commentors (especially those who tended to be aggressive and thus obviously got under the (thin) skin of others). And because I agree that this is worse than having decency police decide who is allowed to use the comment soap-box on my blog.

The problem remains that I lack time, interest, ability and confidence to serve as the decency police. Ergo, I have requested that you --- like batman --- come it to help clean up my comment gotham. I worry that it might mean that SC gets banned or that I get lots of complaints about how you deal with who you think are the bad guys. But ultimately, because people I miss have left my gotham (and keep complaining that I have allowed gotham to rot because I cannot "afford" to be a police force), I am shining the bat signal.

Make sense and seem reasonable? Are you still willing, Bill, now that I have called you batman, to take on the policing job? If so, I will send you the information for getting into the blog space AND will make an appropriate announcement on my blog.


I don't believe I exactly "offer[ed to serve" the role of "decency cop." I said I would consider suggesting standards to be implemented.

I appreciate your good faith in extending the offer, however, and I will consider it. But there are some significant difficulties I see in it, which I will summarize only briefly.

First, it would take more time than I have. My primary responsibilities are teaching and contributing entries to C&C. Second, it's an arid job. Commenters ought to behave themselves simply because they're adults. Third, blog monitoring was not on my list of ambitions; I was never a fifth grade detention teacher (which is what the job would resemble). Fourth, I would establish, and would need your explicit and publicly stated backing for, exacting rules going beyond mere avoidance of vulgarity. I doubt you would sign onto the measures I believe are needed.

Hmmm... I think you have successfully identified reasons I largely do not want to be a decency cop on my own blog, which I hop helps you better understand the no-police policy I have stuck with through the years. Most critically, it has long been my hope that, as you put it, commentors would "behave themselves simply because they're adults." As you have documented, that has not always proven consistently (though I continue to believe that 99% of comments have been and will remain relatively decent).

Because blog comment monitoring has never been something I wanted to do, I have not done it. I could, of course, just get rid of comments altogether, but I am always disinclined to let a few bad apples spoil the bunch. Nevertheless, paul's comment on an earlier thread that he would not consider commenting at SL&P for fear of attack helped me better appreciate that it was not just your voice being lost due to the noxious comments of some.

As this thread now helps show, you should never view my failure to play decency cop as a suggestion I want to see you and other attacked. Nothing could be further from the truth, and that is why I am happy --- indeed, eager --- to have you or anyone else come in a play that role. And I am eager to hear about your "exacting standards," which I likely would agree to back and support at least for a limited experimental period to see if it improves the quantity and quality of comment discourse.

Most critically, I am eager to see you spell out a "comment decency code" for me and others to see and mentally process. I would be especially eager to see if SC and federalist and a few other sharp commentors -- those who I was eager to avoid being subject to any censorship when I first decided to adopt a no-policing policy --- would ever have to worry about crossing the lines you would draw.

Please understand, as I think you do, that I do not want to make you do anything you do not want to do, nor do I want to subject you to extra (boring) work. But I do want to highlight the various challenges of trying to regulate and police blog comments under any neutral standards, and thereby give you a fuller understanding for why I do not try to add that task on the dozens of others I have to complete in an average day.

Most critically, I know any time I were to spend serving as comment cop would take away time I have for content creation on my various blogs. And because I surmise most folks come to my blog for fresh content (and relatively few even bother to look at comment threads), I will keep hoping I can focus on content while someone else does policing.

An INTERESTING discussion beyween Doug & Bill•

I would ♥ to have met Bill Otis last June when I attended the Innocence Summit in D.C.

Even when I disagree with him, I admire his talent• I figure God/G-d had a good reason for keeping Bill Otis around as an illness survivor•

I have developed a talent where at times I can recognize SC’s post before the first sentence ends•

Though I frequently disagree with SC’s word choice and his condemnation of the ♀ lawyer, I would not want to see him banned — SC’s presence documents that the Bill of Rights and Amendment I are alive and well•
I try to ignore any vitriol and grasp the point he makes•

I dislike any personal attack on a commenter and am amazed that anyone would attack the family of a commenter•

I have been blessed by being able to meet Professor Berman in person and be honored by his consent to audit a class @Moritz, which I was unfortunately unable to do•

☺I have not the time and $ to audit Bill Otis’ classes, even were he to grant permission•

If any poster wants to witness censorship, try the ABA blog; I have witnessed and been a target by the dreaded “Comment removed by moderator”•

Good luck to Doug & Bill on any attempt to instill civility into those who pound the keyboard at an emotionless monitor, as they forget or ignore the fact that the reader has feelings too•

Docile Jim Brady - Columbus OH 43227
a.k.a. Kind Soul®, an Ohio registered service mark August 2007-2017
Nemo Me Impune Lacessit

▼ Use ▼
love_djb@Safe-mail.net for love mail & address to send DJB Islay single malt Scotch whisky
mehh_djb@Safe-mail.net for ambivalent mail
hate_djb@Safe-mail.net for hate mail - please, no ricin , explosives or other nasties
▲ Use ▲

Leave a comment

Monthly Archives