POLLACK SOLOMON DUFFY LLP Proposes Legislation to Address Misleading Language Used by Federal Prosecutors for Appellate Waivers in Plea Agreements

BOSTON, June 15, 2015 /PRNewswire/ --  PSD has proposed legislation to the US Senate Judiciary Committee to address misleading language that federal prosecutors often include in plea agreements concerning appellate waivers. 

In a June 15, 2015 letter to Senator Chuck Grassley, Chairman of the Judiciary Committee, PSD Partner and former federal prosecutor Barry Pollack explained that prosecutors are increasingly imposing appellate waivers in plea agreements, in white collar and other types of criminal cases. The letter added: "The typical appellate waiver language used in plea agreements has a tendency to mislead defendants into believing that they have given broader waivers than what the law recognizes."

The letter explained it is also "common practice for federal prosecutors to include language that the U.S. Attorney has the power or discretion to determine whether a defendant has breached any provision of the plea agreement."   As a result of this language, the letter explains that "defendants face the threat of various remedies that federal prosecutors reserve for their office," which can intimidate defendants into refraining from taking permissible appeals.  The letter highlights the "uneven bargaining leverage" as the government generally retains its right to appeal. 

The proposed legislation would require federal courts to inform the defendant that, despite the appellate waiver, the defendant can still bring an appeal based on a breach by the government of the plea agreement, a flaw in the entry of the plea that could deem it involuntary, or based on a claim of ineffective assistance of counsel.  The court would also have to ask counsel whether they have identified any constitutional grounds for an appeal and confirm that the defendant understands those grounds are being waived.  The legislation would also nullify language that purports to reserve for prosecutors the right to determine whether the defendant breaches the plea agreement, leaving such determinations to courts.

Pollack added that "Prosecutors can cross the line when they use their leverage to take fundamental rights away from people."  He continued, "Without legislation like this, many accused remain misinformed about their rights."

PSD is a litigation boutique based out of Boston and New York with practice areas that include government misconduct, criminal defense, commercial litigation, intellectual property, entertainment, matrimonial, international child abductions, and probate contests.

SOURCE Pollack Solomon Duffy LLP