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Charting its own course on when criminal lawyers may forgo appeals, the 7th U.S. Circuit Court of Appeals has broken with six other circuits to hold that a plea bargain that includes a promise to waive all appeals means what it says. Six circuits have held that a waiver of appeal in plea bargain cases does not relieve counsel of a duty to file a notice of appeal at the client’s request. Waivers are not airtight, and if a defendant wants a lawyer to argue that the plea was involuntary, he or she has that right. Failure to do so would be considered automatic ineffective assistance of counsel, according to the prior precedents. Lawyers & puppets But Chief Judge Frank Easterbrook confesses “[s]ome doubt about the constitutional reasoning of the circuits that have located in the Sixth Amendment a rule that a lawyer is the client’s puppet.” He points out that a lawyer also has a duty to the judiciary to avoid frivolous litigation and to the client to avoid actions that could cost a client the benefits of a plea bargain. “The lawyer’s duty is to do what’s best for the client, which usually means preserving the benefit of the plea bargain,” Easterbrook wrote. In the case of Armando Nunez, his attorney negotiated a plea to multiple cocaine charges that dismissed all counts but one and required waiver of direct appeal or collateral attack, unless the sentence exceeded the statutory maximum or the waiver was invalid. Nunez v. USA, 2007 WL 2177125. Nunez, representing himself, said he asked his lawyer to appeal but the lawyer balked. Nunez claimed that he did not speak English and did not understand his counsel or the waiver, and that there was no interpreter present during some consultations, even though he assured the judge he understood the plea. “If, as the record demonstrates, Nunez fully understood the bargain’s terms by the time he stood before the judge, it doesn’t make any difference whether he understood all of what his lawyer had said earlier. The plea was voluntary,” wrote Easterbrook. Nunez, who remains in prison, could not be reached for comment, and the government declined to comment. The ruling is “really out of line with the circuit’s practice in Anders cases,” said William Theis, chief appellate attorney for the Federal Defender Program in Chicago. In Anders v. California, 386 U.S. 738 (1967), the U.S. Supreme Court ruled that a lawyer cannot decide independently that an appeal would be frivolous. A lawyer must continue to act as an advocate until a court agrees that it would be so. But Easterbrook states that Anders applies only if there is a right to appeal, and that was waived in this case. Theis said waivers are rarely employed in his office. “Real lawyers don’t agree to plea waivers,” he said. He added that Nunez sets out “a bright-line rule for lawyers: If appeal is not waived, a lawyer has to file an Anders brief.” Breaking with so many circuits “is certainly raising a red flag for a cert grant,” but without a lawyer it seems unlikely, Theis said.

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