Note to Arrestees: Get Prosecutorial Promises in Writing

The defendant in In re Sealed Case said the prosecutor promised to release him if he testified before a grand jury about a rival gang member.  The defendant testified as requested, but instead of being released, he was hauled before the district court and sentenced to a term of imprisonment in accordance with a plea agreement he had signed earlier.  

The D.C. Circuit held on Tuesday [pdf] that the prosecutor’s oral promise, which the Government conceded he made, was not binding because the written plea agreement already required the defendant to testify at the Government’s request.  Thus, “the government obtained nothing from the promise to which it was not already entitled.”  And the plea agreement’s integration clause required that modifications to the original agreement be in writing.

Judge Griffith’s opinion for a unanimous court also held that no Kastigar hearing was necessary to prove that “all of the evidence [the Government] proposes to use was derived from legitimate independent sources,” because the evidence the defendant supplied was not compelled. The Government was therefore not required to grant him full immunity from the use of his testimony. Instead, the defendant’s debriefing agreement defined the limited scope of immunity he would receive.  (The Government promised not to use his statements against him in his case in chief, and it needed no evidence at all for that purpose because the defendant pleaded guilty.)

The court remanded the case for consideration of the defendant’s ineffective assistance of counsel claims, including the claim that his lawyer failed to adequately explain the scope of immunity granted by the debriefing agreement.

The D.C. Circuit is unique in remanding colorable ineffective assistance claims on direct appeal.  The other courts of appeals generally require that such claims be raised in collateral proceedings.

In re Sealed Case, No. 08-3027 (July 3, 2012) (Griffith, J., joined by Garland, J., & Williams, S.J.)

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