Neither a 'moose' nor a 'puppet': defining a lawyer's role when directed to pursue an appeal notwithstanding a valid waiver of appellate rights.

AuthorLaVoy, Gregory P.

[W]hen counsel utterly frustrates that right [to counsel] by failing to appeal on his client's request, counsel's performance is automatically ineffective. A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. The same understanding applies when the lawyer does not show up for appeal.

We confess to some 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.

~Chief Judge Easterbrook, Nunez v. United States (1)


Jose Maria Sandoval-Lopez probably knew that it was not going to be a good day, or year, or couple of years, when federal narcotics officers uncovered over fifteen pounds of heroin from his truck. Assuredly confirming this understanding, Sandoval-Lopez would soon learn that he had not only unknowingly confessed this crime to an undercover government agent, but had also boasted that he regularly transferred narcotics from Mexico to Washington and Oregon. By his own good fortune, Sandoval-Lopez found himself with a skillful-enough defense attorney and sympathetic-enough federal prosecutor that a deal was soon reached. In exchange for his guilty plea and forfeiting his ability to challenge his conviction on appeal, Sandoval-Lopez would be sentenced to seven years in prison for crimes that potentially carried a much steeper punishment. Of course Sandoval-Lopez accepted the offer; it was not until much later that he decided his generous plea bargains would not suffice. When his defense counsel refused to file an appeal at his request, Sandoval-Lopez filed a petition for habeas corpus alleging ineffective assistance of counsel. (2)

A surprising number of criminal defendants, having voluntarily pled guilty and waived their appellate rights, wish to overturn what are often favorable sentences. (3) These actions necessarily disturb prosecutors who obtained the plea bargains, often in return for serious concessions. They disrupt the judicial process by recommencing that which has been decided. And most notably, defendants' own actions threaten the benefit of the bargain that they obtained by promising not to do that which they are presently doing: appealing their voluntary plea bargains. Perhaps what has fallen under the radar is the ethical conundrum in which the defendant's attorney may find himself, torn between the desires of his client and his duty to the legal process. This dilemma has blossomed into a controversy of potentially constitutional magnitude throughout the federal courts.

While courts have widely upheld clauses in plea bargains in which defendants relinquish their right to appeal, how judicial actors need to respond when a defendant wishes to appeal remains an open debate. Ultimately, the question is: what is the proper function for a lawyer when confronted with a client who wishes to appeal his plea bargain that contains an otherwise valid appellate waiver? (4) The first seven federal circuit courts of appeal to rule on this issue found that controlling authority mandates that lawyers file appropriate motions and appeals even where the litigation may be frivolous and the defendant may lose his bargain. (5) Under this framework, a lawyer's rationed inaction renders him constitutionally deficient and ineffective. Two federal circuit courts of appeal, however, have broken from this reasoning. Neither the Seventh Circuit in Nunez v. United States, nor the Third Circuit in United States v. Mabry, felt compelled to come to the same conclusion as their sister circuits. (6) Essentially, this minority position recognizes that defendants deserve more than the equivalent of a "moose" during the appellate stage, (7) but also that a lawyer's function is not that of a "puppet." (8) The function of a lawyer is not to do that which his client demands when the law dictates otherwise, especially when those instructions contravene other legal duties and responsibilities.

Ultimately, the skepticism expressed originally in Nunez and then in Mabry concerning the circuits' majority position is well founded. Counsel should not be regarded as ineffective for refusing to comply with a client's directive not based on law, and which, if taken, breaks the benefit of the client's bargain and perpetrates frivolous legal action on the courts. This stance not only conforms to current Supreme Court dictates, but also represents the better legal and policy position. This Note substantiates the Seventh Circuit's increasingly accepted alternative position, thus helping develop a more nuanced debate on this important facet of criminal law.

Part I of this Note provides the background necessary to understand the breadth of the debate, including the origin and current standing of appellate waivers, the principles used to interpret them, and pertinent case law from the Supreme Court. Part II delves into the heart of this controversy by examining the majority and minority positions as developed by the federal courts, including the legal and policy arguments, and interpretations of precedent upon which each rely. Finally, Part III sets out a defense of the minority position, arguing its comparative worth and superiority to the majority's per se rule of ineffective counsel. It demonstrates that this position not only aligns with the Supreme Court's effective counsel jurisprudence, but also coincides with general doctrines of contract law, waiver principles, and an attorney's duties to his client and the judicial system.


    In order to appreciate the current controversy regarding a lawyer's duties when directed to pursue an appeal notwithstanding a valid waiver of appellate rights, one must first understand how appellate waivers originated, how they have developed, how the federal courts generally interpret them, and how the Supreme Court established a framework for reviewing claims of ineffective assistance of counsel. These areas necessarily form the building blocks for a solution to this controversy, and thus that is where this Note begins.

    1. History, Prevalence, and Utility of Appellate Waivers in Plea Bargains

      Appellate review of criminal sentences emerged during the 1970s and 1980s as a tool to provide more consistent sentences among similarly situated defendants. (9) While the Constitution does not give a defendant the right to appeal as a matter of right, (10) the Sentencing Reform Act of 1984 established a statutory right of appellate review. (11) With the deluge of appeals that flowed out of this newly minted right, the desire to limit the multitude of issues that defendants could appeal inspired a corollary creation: appellate waivers.

      Justice Department estimates indicate that plea bargains resulting in guilty pleas account for approximately 95% of all federal convictions. (12) Plea agreements represent an efficient system that allows for a bargained-for understanding between the government and a criminal defendant in which each side forgoes certain rights and assumes certain risks in exchange for a mutually beneficial outcome. (13) The government utilizes appellate waivers in order to add a degree of finality and closure to this process. (14) The Justice Department has issued internal policy guidelines both approving the use of such waivers as well as mandating their use by federal prosecutors in certain circumstances to promote greater efficiency. (15) Indeed, a comprehensive study concerning appellate waivers found that a significant majority of federal plea bargains contain waiver-of-appeal clauses. (16)

      As with bargained-for contracts generally, appellate waivers further distinct goals and help each side achieve a more satisfactory end. For the government, appellate waivers preserve the finality of judgments and sentences, and alleviate the burden of costly and time-consuming appeals. (17) At the time it was introduced, the right to appeal sentences was said to have "more than doubled the criminal appellate workload of the federal courts." (18) In spite of this, since the 1990s the number of appeals has grown slower than the number of convictions, and appellate waivers represent a significant factor in this slowing process. (19) In promising to forgo their important appellate rights, defendants obtain leverage to achieve reductions in charges, propitious stipulations, or favorable sentencing recommendations. Again, research has revealed that "the government appears to provide some sentencing concessions more frequently to defendants who sign waivers than to [those] who do not." (20) Together, each side receives benefits that promote their self-interest and the interests they are entrusted to represent. (21) Despite some social costs, (22) appellate waivers provide benefits to the judicial system generally: increased judicial efficiency, non-litigated resolutions of conflicts in which each side bargains for its just desserts, an improved ability for public defenders to focus their energies and resources where they are most needed, and a decrease in frivolous appeals.

      Although widely controversial at their inception, the federal circuit courts of appeal have legitimized the use of appellate waivers over time through general approval in each circuit. (23) Absent action by Congress or the Supreme Court, (24) these rulings have created appellate waiver jurisprudence to regulate their use throughout each respective circuit.

    2. Justice by Consent: Applying Contract and Waiver Principles to Appellate Waivers

      The ability to contract exists as a basic premise of American political, economic, and legal society, (25) as well as a key ethical component of man's dignity and freedom. (26) American courts have long recognized the importance of contracting in civil society, yet as any first-year law student knows, the ability to contract is not without limits. Plea bargains and...

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