For those of us who deal day in and day out in the criminal justice system, plea bargaining is part of the process. Plea bargains do serve a function in criminal cases, some of them practical, some of them more theoretical.
Plea bargaining resolves the great majority of criminal cases. On the federal level, they account for the resolution of 97% of the cases; in state courts around the country, 94% end with a plea bargain. The fact is that without negotiated agreements in criminal cases, the trial criminal justice system, both state and federal, would be so overwhelmed that it would grind to a halt. Another aspect of the plea bargain process is that it enables defendants to obtain a result which reduces the number of charges against them and/or reduces their potential sentence. The impact of this latter point is somewhat muffled in cases where prosecutors “over charge” the defendant in an effort to have the charges reduced to an appropriate level through the plea bargaining process.
Most people, however, are unaware of the fact that in many cases, plea bargains include the waiver by the defendant, as part of the agreement, of his right to an appeal. This could include a waiver applicable to numerous issues, among them double jeopardy and the right to effective assistance of counsel. On the federal level, in a sample of one thousand criminal cases from around the country, two-thirds included such a waiver. And the waiver concept has been approved by the New York Court of Appeals (see People v. Seaberg).
But in a recent federal case, a judge has rejected a plea agreement specifically because it contains a waiver of the right to appeal. The case is United States v. Vanderwerff, and it involves an indictment on three counts of possession of child pornography. Although not included in the indictment, the opinion also contains references to alleged child molestation. The upshot of the proposed plea bargain was that two counts of the three-count indictment would be dismissed, and the maximum sentence the defendant could receive was cut from five to twenty years in prison, to a range of probation to ten years, although the defendant agreed not to request a sentence of less than five years. While the judge stated that the plea bargain itself was within the discretion of the prosecutor, the judge rejected the plea bargain, and set the matter down for trial, ostensibly because of the inclusion of a waiver of appeal stipulation.
The legal issue is an interesting one, but reading the opinion in Vanderwerff, we are struck by the apparent lack of a consistent thread in the court’s logic. While the thrust of the legal argument deals with waivers of appeal in plea bargain situation, the case seems infused with a thinly veiled agenda – that agenda has to do with the fact that an alleged sexual predator would, under the proposed plea agreement, be given what some would consider a very light sentence.
Of course, we cannot say for certain why the decision was rendered nullifying the plea bargain. We do expect, however, to see more cases dealing with the issue in the future.
George Vomvolakis Law Offices
275 Madison Avenue
New York, NY 10016