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DOJ Abandons Appeal Waivers Concerning Ineffective Assistance of Counsel in Plea Agreements – August 14, 2014

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Federal prosecutors in many judicial districts lately have insisted on appeal waivers in plea agreements.  A typical waiver includes the defendant's express agreement not to pursue any post-conviction challenge based on the ineffective assistance of counsel, even though every defendant's right to the effective assistance of counsel is a cornerstone of the Sixth Amendment.  Nonetheless, the Department of Justice and the distict courts that have approved the waivers consistently have ignored the conflict of interest that is created when an attorney advises his or her client to waive any complaint about that attorney's representation even before the representation is complete (most federal sentencing hearings are held months after the plea hearing at which the defendant agrees to the waiver), and the client has no legal training to know whether the representation was proper anyway.  Today, however, US Deputy Attorney General James Cole issued a memorandum to all federal prosecutors directing them not to seek these waivers in any future plea agreements and not to enforce them in any existing plea agreements if the defendant's attorney was ineffective or "when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve." See DAG James Cole's memorandum here: Department Policy of Waivers of Claims of Ineffective Assistance of Counsel


US Attorney General Eric Holder Announces Resignation - September 25, 2014

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US Attorney General Eric Holder announced his resignation today after six years of leading the US Department of Justice under President Barack Obama.  Read the New York Times' article here: "Eric Holder Resigns, Setting Up Fight for Successor"  


Colorado Reaping Benefits from Marijuana Legalization - August 3, 2014

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The State of Colorado defied federal law this past January by legalizing the recreational use of marijuana.  Over the past seven months, the state has collected over $24 million in taxes, and its drug prosecutions have been reduced substantially.  Read the New York Times' editoral here: "The Great Colorado Weed Experiment"


US Sentencing Commission Makes Sentence Reduction in Drug Cases Retroactive -

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The US Sentencing Commission voted unanimously today to apply the recent reduction to U.S.S.G. § 2D1.1, the sentencing guideline applicable to federal drug offenses, retroactively.  Unless Congress disapproves the amendment before November 1, 2014, it will become effective on that date.  However, there are limitations: no inmate can be released until a judge reviews the inmate's case to determine whether a reduced sentence will pose a threat to public safety and is "otherwise appropriate;" and no inmate will be released before November 1, 2015.  The Sentencing Commission intends for the delayed release date to afford the district courts sufficient time to reveiw the cases carefully, and to afford prison and probation officials sufficient time to employ effective re-entry and supervision plans.  See the Sentencing Commission's press release here: The US Sentencing Commission Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences    


US Supreme Court Holds Cell Phones Not Subject to Warrantless Search Pursuant to Arrest - June 25, 2014

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The US Supreme Court held today in Riley v. United States that police officers may not search a person's cell phone without a warrant simply because the person is subject to lawful arrest.  The Court has held that the police may conduct a warrantless search of the area within an arrestee's immediate control for the officers' safety and to prevent the destruction of evidence (Chimel v. California), including, in one case, the contents of a cigarette pack found on the arrestee's person (United States v. Robinson).  However, the court narrowed those holdings in Arizona v. Gant by limiting the police's authority to conduct a warrantless search only to the area of a vehicle in which it is reasonable to believe that evidence of the crime of arrest reasonably may be found, and the area within an arrestee's immediate control only if the arrestee is unsecured.  The Court now has recognized that the data contained in a cell phone poses no theat to officer safety, and thta the destruction of evidence resulting from a remote wiping of the cell phone's data is not a prevalent concern, or at least one that cannot be countered with technology currenlty at police officers' disposal.  Read the Court's opinion here: Riley v. California, No. 13-132, Decided June 25, 2014

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