Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

This blog entry discusses some of the outer limits of the Government’s authority in criminal cases to demand that a defendant waive certain rights. The blog is not meant to constitute legal advice, but is the starting point for a discussion about power of federal prosecutors to manipulate the criminal justice system.

In a standard written guilty plea in federal court, the defendant is almost universally required to waive certain constitutional and statutory rights, including his right against self-incrimination and the constitutional protections a jury trial affords, but also a whole range of other substantial privileges. These include challenges to venue, statute of limitations, bond pending sentencing, forfeiture, and even removal from the United States for defendants with immigration issues. Plea agreements almost always include a waiver a defendant’s appellate rights, except under limited circumstances – such as when a defendant alleges that his lawyer was ineffective. And perhaps not surprisingly, federal appellate judges have routinely affirmed the use of such waivers, dismissing appeals without ever reaching the merits of the claim because the defendant supposedly knowingly and voluntarily “waived” his rights in exchange for the plea offer. The outmost boundaries of waivers in plea agreements is hard to determine, but when some inventive – or aggressive – prosecutors insisted that a defendant waive his right to make a future Freedom Of Information Act request about his own case, the federal appeals court in Washington, D.C. in Price v. DOJ, 865 F.3d 676 (D.C. Cir. 2017) concluded  that this  waiver was unenforceable because the government could not point ‘to any legitimate criminal-justice interest served by including a waiver of FOIA rights in [a defendant’s] plea agreement.”

The waivers in a plea agreement are at least transparent in the sense that they are almost always reduced to writing, the plea agreement is signed by the Government, defense counsel and the defendant and the presiding judge reviews them with the defendant at the time of guilty plea. But federal prosecutors also have the exclusive and largely un-reviewable power over whether a defendant will be allowed to “cooperate” with the Government and whether that cooperation rises to the level of “substantial assistance (which is the standard for receiving a sentence reduction)  to extract other waivers from defendants. In particular, defendants have been required to waive their right to obtain discovery under the Federal Rules of Criminal Procedure as a condition of cooperation. Prosecutors contend that an accused who wants to cooperate needs to admit his own guilty and does not need to know what evidence that the Government has in its possession to make that decision. Prosecutors also argue that providing discovery to a cooperating defendant: (1) may cause the accused to limit the information he provides to the Government based upon what he/she thinks the prosecutors and agents know about him; and (2) would make the defendant appear to be more truthful if they ever testified at a trial. These are remarkably unverifiable justifications, but given the unfettered power that federal prosecutors have over defendants who are desperate to cooperate, I know that more than several defendants have agreed to waive their right to discovery. A discovery waiver invariably reduces defense counsel to nothing more than a “potted plant,” since it means that the defense has no independent ability to review the sufficiency of the Government’s evidence. Worse, I believe that many of these discovery waivers are not reduced to writing or otherwise memorialized, but constitute an informal agreement among the parties. In my view, this is prima facie ineffective assistance of counsel. The first – and only time – I ever allowed a defendant to waive discovery, he had signed a written confession at the time of his arrest and had thus, already determined the arc of his case. Nonetheless, before agreeing to a discovery waiver, I insisted that it be reduced to writing and presented to the judge for review. The prosecutor was not thrilled (its always simpler when the court is not involved), the judge seemed remarkably surprised by the idea, but after fully advising the defendant of his right to discovery, the court accepted the waiver.

If a discovery waiver seems like the outmost reaches of what ought to be acceptable in federal criminal practice, rest assured that in the future some enterprising federal prosecutor will decide (or has already decided unbeknownst to this author) that as a condition of being given the “privilege” of cooperating, a defendant should agree to waive his right to Brady information – the shorthand reference to exculpatory evidence. The Supreme Court has ruled that Brady evidence is a trial right and thus, is not violated unless the Government’s failure to disclose has a material effect on the outcome of a trial. Under this rationale, Brady evidence need not be presented to a grand jury considering criminal charges.

Indeed, a proposed change to the Local Rules of the United States District Court for the District of Columbia to require that the Government produce Brady evidence begins with the caveat “Unless the parties otherwise agree, and where not prohibited by law,” signaling that a waiver might be permitted. See https://www.dcbar.org/about-the-bar/news/upload/Nov-2017-Notice-of-Proposed-Brady-Rule-docx.pdf.  The same argument made by prosecutors about discovery – the defendant knows what he did – would apply with some equal force in the context of exculpatory information. The Government could also force the issue, by making cooperation contingent on the waiver. After all, why would it matter if the Government had evidence that the accused was innocent, if the defendant knew that he was guilty? The proposed D.C. rule does not even require that a Brady waiver be in writing, or require judicial review or approval. And the Rule does not define in any way, when an exception to its requirements would be “prohibited by law.”

One solution for criminal defense attorneys is to consider asking the presiding judge to issue an Order like the one currently imposed by U.S. District Court Judge Emmet G. Sullivan in every case, as the result of the misconduct in the Ted Stevens prosecution. The Order sets forth a series of required Government Brady disclosures and can be  found at: https://www.dcd.uscourts.gov/sites/dcd/files/StandingBradyOrder_November2017.pdf. As with all things, if the Court denies the request, at least defense counsel tried. And if enough defense lawyers make the request, it is possible that someday it will become standard in every case. But if no one ever asks, then it is certain that it will never happen.

Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com