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DA Requires Defense Attorney to Agree Pleas Are Constitutional Prior to Entering Agreement

Signing - Focus is on pen
By Joseph Fawbush, Esq. on February 07, 2020 | Last updated on February 11, 2020

In what appears to be a first in the country, the district attorney's office in Tom Green County, Texas, is requiring a criminal defense attorney to agree to her personal belief in the constitutionality of plea agreements before entering a plea with the court. That defense attorney is now suing Tom Green County for violating her First Amendment rights.

The Washington Post covered the lawsuit, which was filed in federal district court in Texas in October.

On behalf of a client convicted of assault, veteran lawyer Patricia Stone argued in a 2019 appeal that plea bargains are unconstitutional. Stone claimed plea bargains violate the right to a trial by jury guaranteed by the U.S. Constitution. Stone copied Tom Green County district attorneys on her brief.

Tom Green County prosecutors then began requiring Stone to agree in writing that she personally does not believe that plea bargains are unconstitutional before entering into a plea agreement with her other clients. Stone has refused to sign this "additional admonishment" for her other clients. For this reason, she eventually moved to withdraw from 10 other criminal defense cases.

Stone argues that she can no longer maintain a criminal defense practice due to Tom Green County's indefinite policy, which is targeted exclusively toward her and her law partner, the only two attorneys in the county who have made that claim.

Enforceability in Question

Despite Stone's refusal to sign the additional admonishment, any waiver signed by an attorney attesting to a belief in the constitutionality of plea bargains would have dubious value. For one thing, it is not clear that prosecutors can extract such a waiver from a defendant. Even if they could, obtaining such a waiver from the defendant's attorney should not prevent the defendant from raising the issue on appeal.

Tom Green County has filed a motion to dismiss Stone's lawsuit. Meanwhile, as perhaps expected given the ubiquitous nature of plea bargains throughout the country, Stone's appeal that plea bargains are unconstitutional lost. While there has been a lot of attention paid to plea bargains lately, they have been upheld as constitutional on numerous occasions since the Supreme Court first decided the issue in 1970.

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