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- DRUG/CRIMINAL ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: CAN EVIDENCE SEIZED IN A DOMESTIC VIOLENCE SEARCH BE USED IN A SUBSEQUENT CRIMNAL PROSECUTION
- Drug/Criminal Attorney in Bergen (Hackensack), Passaic (Paterson) and Morris (Morristown) Counties: Drugs Found in Proximity to Defendant Subject of a Terry Stop not in Violation of of Law
- Drug/Criminal Attorney in Bergen (Hackensack), Passaic (Paterson) and Morris (Morristown) Counties: The Use of Lay Opinions in Drug Cases
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Plea Negotiations
Recently, the New Jersey Lawyer Magazine published a complete issue dedicated to the criminal law in New Jersey. One of the articles developed two rather interesting aspects of the negotiation process associated with plea arrangements in the federal courts. Both of these arrangements were conceived by federal prosecutors to assure finality in plea negotiations.
The first related to a condition in a plea arrangement that required a defendant to waive the right to any appeals relating to discretionary decisions made by the sentencing judge. On this issue, the author noted that Congress imposed a statutory mandate to the Sentencing Commission to continue to manage the development of the sentencing guidelines. In order to accomplish that task, the focus of the Sentencing Commissions’s analysis relates to the review of appellate decisions that address the sentencing policy and procedure developed by the trial courts. In the article, the author argues that the waiver of appeal condition effectively denies the Sentencing Commission of a vast body of information that can assist in developing the evolution of sentencing guidelines and, as a result, it offends public policy.
The other issue developing in federal prosecutions is the government’s demand that a plea is conditioned upon a waiver of collateral review in the form of habeas corpus applications. On this issue, the author notes that a defendant who agrees to a waiver of this nature will give up his/her right to post-conviction relief, even if he later learns that his attorney misled him or was ineffective. Since the issues may not be developed for quite sometime after sentencing the author contends that there can be no realistic explanation by the lawyer to the client, to explain why he should surrender this valuable right and to that extend, there can be no knowing waiver of this valuable right.
More importantly, however, the author argues that this type of waiver pits the attorney against the client in that the government is effectively using an attorney’s self-interest to insure against an ineffective assistance of counsel claim in post-conviction relief application. On this score, the author claims that the waiver violates ethical principles and points to a number of state ethics opinions that seem to conclude that waivers of this nature violate a lawyer’s Rules of Professional Conduct. Some of those precepts are similar to New Jersey’s Rules of Professional Conduct 1.7 which says “a lawyer shall not represent a client if the representation of that client may be materially limited. . . . by the lawyer’s own interest.”
The article was throughly provoking and should motivate both clients and lawyers alike to consider the consequences of conditions of this nature when negotiating a plea arrangement.
The first related to a condition in a plea arrangement that required a defendant to waive the right to any appeals relating to discretionary decisions made by the sentencing judge. On this issue, the author noted that Congress imposed a statutory mandate to the Sentencing Commission to continue to manage the development of the sentencing guidelines. In order to accomplish that task, the focus of the Sentencing Commissions’s analysis relates to the review of appellate decisions that address the sentencing policy and procedure developed by the trial courts. In the article, the author argues that the waiver of appeal condition effectively denies the Sentencing Commission of a vast body of information that can assist in developing the evolution of sentencing guidelines and, as a result, it offends public policy.
The other issue developing in federal prosecutions is the government’s demand that a plea is conditioned upon a waiver of collateral review in the form of habeas corpus applications. On this issue, the author notes that a defendant who agrees to a waiver of this nature will give up his/her right to post-conviction relief, even if he later learns that his attorney misled him or was ineffective. Since the issues may not be developed for quite sometime after sentencing the author contends that there can be no realistic explanation by the lawyer to the client, to explain why he should surrender this valuable right and to that extend, there can be no knowing waiver of this valuable right.
More importantly, however, the author argues that this type of waiver pits the attorney against the client in that the government is effectively using an attorney’s self-interest to insure against an ineffective assistance of counsel claim in post-conviction relief application. On this score, the author claims that the waiver violates ethical principles and points to a number of state ethics opinions that seem to conclude that waivers of this nature violate a lawyer’s Rules of Professional Conduct. Some of those precepts are similar to New Jersey’s Rules of Professional Conduct 1.7 which says “a lawyer shall not represent a client if the representation of that client may be materially limited. . . . by the lawyer’s own interest.”
The article was throughly provoking and should motivate both clients and lawyers alike to consider the consequences of conditions of this nature when negotiating a plea arrangement.
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