Supreme Court wrestles again with post-conviction waivers

Allison Retka//October 18, 2011

After skirting the issue in a previous case, the Missouri Supreme Court more directly probed the constitutional “can of worms” opened up by waivers of post-conviction relief by criminal defendants.

During oral arguments Tuesday, Judge Patricia Breckenridge asked if the waivers are a “trend” that can as easily be phased out as they were phased in. Prosecutors and defense counsel hammered out decades of plea deals without these types of waivers, she pointed out.

“Someone came up with the idea, and people started doing them,” she said. “It certainly adds a lot of issues and the potential for a lot of hearings on issues such as actual conflict and potential conflict that haven’t been a part” of the process, she said.

Earlier this year, the Supreme Court had another chance to weigh in on the waivers in Clarence Burgess v. State of Missouri, but the court decided the case without saying whether the waivers are valid.

In a pair of St. Louis County cases before the high court last week, the judges directly wrestled with the ethical pitfalls of the waivers, which defense attorneys say force them to advise clients on their own potential mistakes.

“Lawyers make mistakes,” said Scott Thompson, a public defender who argued both cases. “I’ve got a note on my arguments here to button my jacket because I’ve stained my shirt today.

“If an attorney is truly inefficient, he or she may not know it. Trial counsel … doesn’t know what he doesn’t know. If he has gone and made mistakes as to the law or the range of punishment or parole, he can’t give intelligent advice to his client [about that].

Jayne Woods, an assistant attorney general, argued that defense attorneys can advise clients on waivers of post-conviction relief as long as they don’t assess their own performances as attorneys.

“It steps into actual conflict when [the lawyer] says, ‘This is what you’re waiving, but you don’t have to worry about it because I didn’t do anything wrong,’” Woods said.

Tuesday’s cases were Lester Krupp Jr. v. State of Missouri, SC91613, and Willie E. Cooper v. State of Missouri, SC91695.