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Friday, August 17, 2007

Ind. Decisions - "7th Circuit Breaks With Six Circuits Over Waiver of Appeal"

The July 31st 7th Circuit opinion in the Illinois case of Armando Nunez v. USA. is the focus of a National Law Journal article today by Pamela A. MacLean. It begins:

Charting its own course on when criminal lawyers may forgo appeals, the 7th U.S. Circuit Court of Appeals has broken with six other circuits to hold that a plea bargain that includes a promise to waive all appeals means what it says.

Six circuits have held that a waiver of appeal in plea bargain cases does not relieve counsel of a duty to file a notice of appeal at the client's request. Waivers are not airtight, and if a defendant wants a lawyer to argue that the plea was involuntary, he or she has that right. Failure to do so would be considered automatic ineffective assistance of counsel, according to the prior precedents.

But Chief Judge Frank Easterbrook confesses "[s]ome doubt about the constitutional reasoning of the circuits that have located in the Sixth Amendment a rule that a lawyer is the client's puppet."

He points out that a lawyer also has a duty to the judiciary to avoid frivolous litigation and to the client to avoid actions that could cost a client the benefits of a plea bargain. "The lawyer's duty is to do what's best for the client, which usually means preserving the benefit of the plea bargain," Easterbrook wrote.

Posted by Marcia Oddi on August 17, 2007 07:59 AM
Posted to Ind. (7th Cir.) Decisions