The Danger of Getting Riled Up

When you work as a prosecutor for a while, you have to learn to let stupid stuff go. You especially have to learn to let stupid stuff go by when a defense attorney has some sort of hare brained motion she's arguing in court or on appeal. Those things come from three main causes:  (1) the attorney is new to criminal law and therefore still got some strange ideas she has to work out of her system;  (2) the attorney has had this burr under her saddle for a long time and finally got that case where she can argue it; and/or  (3) the attorney is desperate for something to argue and this is all she and her buddies in the defense bar could come up with.

So, when a defense attorney files a spurious motion claiming that plea agreements are not constitutional you shrug, write a brief reply stating that she's out in la-la land, and you move on. You know the courts aren't going to abolish plea agreements. I don't care if the defense attorney is the combined reincarnations of Clarence Darrow, Daniel Webster, and Thurgood Marshall the appellate courts aren't going to throw that big a wrench into the whole criminal justice system. If you think it's going to be a big issue, you add an additional section to all your plea agreements going forward:

The defendant, with advice of counsel, waives appeal of this matter and acknowledges that this plea agreement is valid both legally and constitutionally.

If you want to cause the defense attorneys to howl, you can add

I understand that the only conditions under which I can appeal are (1) I don't understand this agreement, (2) I have entered into this agreement under extreme duress, (3) the judge did not have jurisdiction to convict and/or sentence me, or (4) my attorney was so incompetent that he was constitutionally ineffective in his representation of me.

I put something similar to the second section into my plea agreements for a while and complaints came in until the powers that be asked me to remove it.

Anyway, you deal with it and move on. What you don't do is require the defense attorney to personally foreswear her spurious argument in all other cases uniquely without applying the same standard to all other attorneys.

To be fair, that's a one-sided document and I suspect that the story from the other side might be a wee bit different. However, the document that the plaintiff (defense attorney) quotes in its entirety has to be in the hands of the plaintiff to quote exactly:

Additional Admonishment for defense counsel seeking to undermine and overturn at least one conviction by filing at least one appellate brief raising the issue that plea agreements are unconstitutional and/or at least one writ of habeas corpus alleging that plea agreements are unconstitutional: I do not believe that entry into this plea agreement is or has been unconstitutional in any way. I believe my client has freely and voluntarily entered this plea of guilty and I have fully explained his constitutional rights in connection with his guilty plea to him. I do not believe I have offered ineffective assistance of counsel in advising my client of his rights and advising my client to enter into this agreement. I believe based on the evidence I have reviewed and based on communications with my client that this agreement is in my client’s best legal interests and advise him to enter into this agreement as part of our defensive trial strategy. In no way do I believe this defendant’s plea of guilty in exchange for the State’s punishment recommendation in this case to have violated my client’s constitutional rights, including his due process rights.

That's problematic in a number of ways. Primarily, the fault is that no plea agreement is made with the defense attorney. They're made with the defendant. Secondarily, it's aimed at a particular defense attorney. It's unlikely that this would pass muster anyway, but at least if it were part of every plea agreement in every pled case it would be a general office policy and more likely to be accepted by courts (or treated as a nullity without much possible impact on the office). Tertiarily, the criminal courtroom isn't about policing thought. Who cares what someone believes? Just make declarative sentences. "This defendant’s plea of guilty in exchange for the State’s punishment recommendation in this case [does not violate his] constitutional rights, including his due process rights." The court decides what the objective truth is and a declarative statement is more likely to get you there; it also includes implicitly the "I believe" part. And those are just the flaws I can see off of a surface reading; I'm sure I could list more if I decided to dig in.

Again, I want to state that this all comes from the defense attorney's perspective. For all I know, she was playing serious games and they were trying to stop them. I don't know and I doubt we will ever know the entire story from both sides. The case we're reading about this from is civil. The odds are it will disappear into the fog and never be heard about again.