Reading the various plea agreements that have been made public in the public corruption scandal in El Paso there was one thing that stood out for me – the waiver of rights the agreements included. It was curios to me because the plea agreements included language whereby the defendant waived the right to any future appeals to their guilty plea. On the surface, this made since because, as I understand it, the defendant was entering into a contract whereby he expected a lesser sentence in return for avoiding the expense of a trial.

However, as the public corruptions cases went through the process, at least three defendants appealed their guilty pleas and at least one, Adrian Peña, successfully had his guilty plea vacated by the Fifth Court of Appeals. The language in the plea agreements included wording that the defendant pleading guilty waived the rights to “speedy and public jury trial” and the normal rights that many of us are familiar with through Law and Order type of television shows. They also included the wording that the defendant waived “the right to contest the sentence” that the court may impose on them.

Some of the court transcripts for the actual plea included a question and answer session where the defendant agreed that they would not contest their guilty plea because of the numerous “rights” except for instances where the prosecutors violated the plea agreement or because of ineffectual legal representation. For example, the December 9, 2011 Plea of Guilty transcript for Dolores Briones included the following exchange. The Court tells Briones that she can appeal her plea only for “two very limited situations” with one of them being if she received “ineffective assistance” from her lawyer.

Likewise, the Adrian Peña Plea Agreement included that statement that Peña could appeal his guilty plea as a result of “ineffective assistance of counsel”. The more I thought about these waivers of rights the more they made sense to me because other than ineffective legal advice the defendant presumably was making an informed decision to plead guilty in return for something.

After all, presumably, the basis of US jurisprudence depends on effective legal representation and thus a guilty plea is supposed to be the result of competent legal advice. Therefore, since the object of the plea agreement is to expedite the process, it made sense that the only reason to appeal a guilty plea was because the defendant received bad information from their attorney or because the prosecutors violated their rights.

Therefore, I was surprised to read an Eric Holder memorandum to his prosecutors that his office will no longer require defendants’ pleading guilty to waive their right to ineffective counsel. Shortly after Holder announced he was leaving I started to see commentary online about an upcoming announcement by him telling his prosecutors to stop requiring the waiver of ineffective counsel. It caught my attention because as far as know, none of the El Paso defendants waived their rights to appeal based on ineffective lawyers. Yet, there seemed to be some national controversy about this in other jurisdictions. In the case of the El Paso guilty pleas, the only issue seemed to involve the judge sealing numerous court records and his involvement in the plea negotiations.

Holder’s October 14, 2014 memorandum issued a new policy for the prosecutors telling them that they were no longer to “ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel”. As far as I know this was not an issue in the El Paso cases, however looking through the online commentary apparently there has been some discussion about this waiver at the national stage.

As I wrote initially, it is my opinion that a defendant pleading guilty should waive their rights except for the cases of faulty legal representation or prosecutors violating the defendant’s rights. Other than that, the idea of the guilty plea is to receive a consideration for saving the taxpayers the expense of having to prosecute the defendant.

Martin Paredes

Martín Paredes is a Mexican immigrant who built his business on the U.S.-Mexican border. As an immigrant, Martín brings the perspective of someone who sees México as a native through the experience...

3 replies on “Prosecutors No Longer Demanding Plea Agreements Waive Right to Appeal”

  1. Martin, ahora si pusiste el dedo en la llaga!

    You come from a Country where the people always place in doubt the honesty of the government, the law enforcement, and the courts. In contrast, your in your new country the people always trust the institutions. The question then becomes clear, where is it easier for a corrupt judge, prosecutor, or law enforcer to do his or her dealings?

    In our system of justice (US) we have that fundamental “balance of power” where one branch of government checks the other, to the point the Judiciary (Judge) checks the Executive (Investigator, prosecutor); and vice versa. And then there is that fourth almighty branch, the press. The press is in charge of keeping the owners of the country, We The People, informed of how our servants, the government, are handling our affairs.

    But what happens when they all get together, judges, investigators, prosecutors, the press?

    That reminds me of Cuba, Nazi Germany, Soviet Union, and El Paso.

    The Honorable Judge Montalvo believes that efficiency comes from all working together:

    Now, the press in El Paso. The Times and the Diario seem to cooperate well with the powers to be, the special interests. On May 15th 2007 the FBI searched the County Court House, OUR BUILDING. They never told us, We The People, that they had found nothing. Furthermore, the People of El Paso were never told that First Southwest Finance (still doing business here) offered a bribe to the then siting County Judge at the time, that because of that they got fired, that because of that the FBI searched the County Court, and because of that the Honorable Judge Frank Montalvo sealed the court records.

    This case is composed of several million documents.


    Most US Citizens never hear about this until they are facing the firing squat, and a nasty judge and prosecutor abuse this rule making impossible for any jury not to find the defendant guilty. Simply stated, the prosecutors can bring against you anything they want that you did in the past or, that your enemies say you did. This may be the epicenter of the Montalvo court sealing of the documents and the guilty plea of all indicted. While the law does not permit the testimony of a co-conspirator unless it is taken during the time the conspiracy is in process, through the 404’b abuse, it is read to the jury. Never mind the law, as long as the judge allows it.
    In the September 2013 scheduled trial, the government was going to read 26 stories of bad acts to the jurors, and one of the witnesses was no less than the Catholic Church.

    All this is an abuse of the Rule of Criminal Procedure 11 and the Sixth Amendment of our Constitution.

    As we prepare for the season Holidays, we should think of the innocent now in prison and of the exorbitant taxes we will pay in January to enrich the real guilty of this macabre “operation poison pawns”, protected in the Honorable Judge Frank Montalvo courtroom (by the way, most of them were most important contributors to the Republican Party of Texas and Arizona).

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