John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.
This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.
The Sacramento Bee reports that former Sacramento Capitals tennis team owner Don Wannakuwatte pleaded guilty yesterday with a plea agreement calling for a 20-year prison sentence. Sentencing before Judge Nunley is set for July 24, 2014.
In United States v. Whitney, 10-10118, the Ninth Circuit today reversed a sentence by former EDCA Judge Frank C. Damrell, Jr. The Court held that the prosecutor violated the plea agreement (even absent a defense objection) and that the district court committed clear error in applying a 2-level leadership role enhancement at sentencing. A good read on holding prosecutors to their promises in plea agreements (a too common problem in the EDCA, in my opinion) and opposing aggravating role guideline enhancements.
Congratulations to appellate attorney Tim Warriner for the win!
U.S. Attorney General Eric Holder has changed DOJ policy to bar U.S. Attorneys from requiring defendants to forever waive their right to DNA testing in standard federal plea agreements, as the EDCA U.S. Attorney's Office and many others currently do. As reported in today's Washington Post, 11/18/10,
The waivers have been in widespread use in federal cases for about five years and run counter to the national movement toward allowing prisoners to seek post-conviction DNA testing to prove their innocence. More than 260 wrongly convicted people have been exonerated by such tests, though virtually all have been state prisoners.
The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if evidence emerges that could exonerate them. Statistics show that innocent people sometimes plead guilty, often for a reduced sentence. One quarter of the 261 people who have been exonerated by DNA testing had falsely confessed to crimes they didn't commit, and 19 of them pleaded guilty, according to the New York-based Innocence Project.
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The waivers have been part of the standard plea agreement filed by some of the nation's most prominent U.S. attorneys, including those in the District, Alexandria and Manhattan. Defense lawyers say their clients are essentially forced to sign the waivers or lose the benefits of a plea agreement, such as a lighter sentence.
Holder's memo said the DNA waiver policy is inconsistently applied and is "too rigid to accommodate the facts presented by individual cases.'' As of last year, at least 19 U.S. attorneys' offices used the waivers for some or all plea agreements, while 24 U.S. attorneys did not use them. It could not be determined how many inmates have been affected by the policy, because the remaining U.S. attorneys' offices did not respond to inquiries or declined to comment.
Now, Holder's memo says prosecutors can only seek the waivers in "exceptional circumstances" and with a supervisor's approval.
Last week, Attorney General Eric Holder issued this Memo on the Department of Justice's Policy on Charging and Sentencing, 5/19/2010 Holder Memo re Charging and Sentencing, which supersedes prior DOJ memos. The Memo acknowledges that although the "guidelines remain important in furthering the goal of national uniformity throughout the federal system," that charging decisions and plea agreements must also consider the facts and circumstances of a particular case and that prosecutors must consider whether sentences they advocate are consistent with the purposes of sentencing in 18 U.S.C. §3553(a). Significantly, prosecutors are free to request variances from a guideline range when such request is based upon specific and articulable factors and approved by a supervisor. Worth keeping in mind the next time a prosecutor says he or she cannot agree to a below-guideline sentence in a plea agreement.