Issue before the Court: The effect on an appeal waiver where the written waiver form grossly mis-characterizes the scope of the defendant’s rights being waived.

 

Held: It depends upon how gross the mis-characterization was and whether the oral waiver cured the defect.  In Green and Lang, the waivers were struck down.  In Thomas it was upheld.

 

CAL Observes: This is yet another highly unfortunate and misguided decision.  The majority consisted of four judges.  Wilson, Rivera, and Garcia wrote separate opinions.

 

On the appeal waiver question, Rivera and Wilson thought all the waivers bad, and were critical of the whole appeal waiver process.  Wilson wrote that appeal waivers should be abolished and Seaberg overruled; Rivera agreed.

 

Judge Garcia thought all the appeal waivers were fine– didn’t the words “appeal” and “waiver” appear in the same sentence? So what’s the problem?  Garcia complains that, if waivers are struck down for being misleading, prosecutors might not be willing to enter into plea bargains!!!!

Defendants will suffer!!!!

 

In Green and Lang, the written waivers stated that the defendants were waiving all appellate rights including the right to have fees waived and to get assigned counsel.  The oral waivers were no better.  These waivers were struck down as grossly misleading.  In Thomas, the written waiver included an admonition that the right to file a notice of appeal was also being waived– a phrase the court agreed was “incorrect”--but was purportedly otherwise fine.  The oral waiver, according to the four-judge majority, was perfect and cured any defect.  (In reality, the oral waiver was terrible as well, but in different ways.) 

 

On the minus side of the majority decision, it extols the wonders and great benefits to the parties, including the defendant, of appeal waivers– a proposition that no practicing public defender thinks is other than riotously laughable.

 

On the plus side: the majority (1) did note that the notice-of-appeal-waiver was “incorrect,” contrary to the Bronx DA’s position.  So at least the Bronx DA’s office will not be re-inserting that language into their waivers, with the idea of continuing to mislead defendants and their lawyers into believing that they could not file a notice of appeal, and (2) did acknowledge (in line with Garza v. Idaho) that the term “appeal waiver”was a misnomer, since the waiver only narrowed the issues that could be raised on appeal, and (3) did strike down, as grossly misleading, written waivers of the type still used in some jurisdictions, including Queens County.

 

Long term: more dodgy appeal waivers will be upheld.