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Eric Holder
Attorney General Eric Holder (Photo: "Ukraine Forum on Asset Recovery (14038928936)" by Foreign and Commonwealth Office - Ukraine Forum on Asset Recovery. Licensed under Creative Commons Attribution 2.0 via Wikimedia Commons )

U.S. sets new policy on ineffective assistance claims

WASHINGTON — Federal defendants who plead guilty will no longer have to waive their rights to future claims that they got bad advice from lawyers, Attorney General Eric Holder said Tuesday in announcing a Justice Department policy change.

In a directive shared with United States attorneys from across the country, the Justice Department said prosecutors must no longer seek such waivers during the plea negotiation process.

It is unclear how broad the impact will be since only 35 of the 94 U.S. Attorneys’ offices currently ask defendants entering guilty pleas to forfeit their right to later claim they had ineffective counsel. But Justice Department officials say the new policy, spelled out in a memo to prosecutors, is intended to bring a uniform approach nationwide.

“Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals,” Holder said in a written statement.

In the criminal justice system, defendants who plead guilty typically agree to forfeit certain rights, including the right to a jury trial. But the Justice Department, in a memo from Deputy Attorney General James Cole to federal prosecutors, said the right to an effective lawyer was a “core value of our Constitution.”

The memo said prosecutors, besides not seeking waivers from defendants during plea negotiations, also should not enforce previously signed waivers in cases where the ineffective counsel resulted in prejudice to the defendant or “raises a serious debatable issue that a court should resolve.”

The issue has already arisen at the state level. The Kentucky Supreme Court, for instance, ruled in August that prosecutors could no longer require defendants as part of a plea agreement to waive their right to appeal bad advice from an attorney.

Theodore Simon, the president of the National Association of Criminal Defense Lawyers, said in a statement that the Justice Department announcement “rights a wrong that should never have been a practice employed by federal prosecutors.”