Digital Commons Network^™

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

The Juris Master: A Proposal For Reducing Excessive Public Defender Caseloads, Blake Comeaux

Senior Honors Papers / Undergraduate Theses

The US public defense system is underfunded, understaffed, and underdelivering on the Constitutional promises of the 6^th Amendment, the right to a fair and speedy trial. This state of our public defense system results in monstrous impacts for indigent defendants nationwide. Through indefinite delays in litigation, being abandoned in jail while sitting on waiting lists for public defenders, and being outright denied representation, indigent defendants are deprived of their rights. Beyond just defendant neglect, our current system puts immense strain on public defenders, prosecutors, and state budgets. In an attempt to combat this current state of affairs, this paper …

How Do Prosecutors "Send A Message"?, Steven Arrigg Koh

Faculty Scholarship

The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.

Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …

Teaching Case Theory, Binny Miller

Articles in Law Reviews & Other Academic Journals

As the key means of framing a case, case theory is the central problem that lawyers confront in constructing a case, and many of the decisions made during the life of a case are decisions that rest on case theory. Building on the author's earlier scholarship on case theory, this essay articulates a concept of case theory called "storyline," and sets out a framework for teaching this concept. The framework for this process has three basic stages - imagining case theory, evaluating (and constructing) case theory, and choosing case theory. The material for this process is stories, which are the …

Building Fierce Empathy, Binny Miller

Articles in Law Reviews & Other Academic Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Faculty Scholarship

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Ethical Considerations For Prosecutors: How Recent Advancements Have Changed The Face Of Prosecution, Joshua L. Sandoval

St. Mary's Journal on Legal Malpractice & Ethics

The prosecutor acts as a minister of justice with sweeping discretion to charge an individual with a crime, plea a case in a manner supported by the strength of the evidence, proceed to trial on a case, and even dismiss a case. He must balance the interest of the victim, the community, and the constitutional rights of the accused in every decision he makes.

This article will explore the role of the American prosecutor and discuss various ethical issues encountered on a daily basis. After a brief introduction, the author will succinctly discuss the history of the prosecutor and will …

From The Legal Literature: Disentangling Prison And Punishment, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Efficiency, Enforcement, And Punishment, Jim Staihar

Notre Dame Journal of Law, Ethics & Public Policy

The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be …

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Judicial Disqualification And Recusal In Criminal Cases, Edward L. Wilkinson

St. Mary's Journal on Legal Malpractice & Ethics

The United States Supreme Court has recognized circumstances in which the probability of judicial bias requiring disqualification or recusal is “too high to be constitutionally tolerable.” At the same time, the Texas Constitution contains a number of provisions barring a judge from presiding over a case under specific circumstances, while statutes and procedural rules either disqualify a judge or require him or her to be recused. Thus, whether a particular judge may preside over a given criminal case may be questioned under the Due Process Clause, the Texas Constitution, statue, or the rules of procedure. This Article will examine the …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Journal Articles and Book Chapters

This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show …

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Law And Justice On The Small Screen, Jessica Silbey

Books

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed. The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Prosecutorial Regulation Versus Prosecutorial Accountability, Stephanos Bibas

All Faculty Scholarship

No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legislatures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individual cases. Scholars have largely neglected the most promising avenue of …

Rewarding Prosecutors For Performance, Stephanos Bibas

All Faculty Scholarship

Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards …

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The Modern Movement Of Vindicating Violations Of Criminal Defendants' Rights Through Judicial Discipline, Keith Swisher

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

The Ethics Of Cause Lawyering: An Examination Of Criminal Defense Lawyers As Cause Lawyers, Margareth Etienne

ExpressO

Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) “hired guns” who would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I explore the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the “cause” of legal reform in …

Religion And The Public Defender, Sadiq Reza

Fordham Urban Law Journal

This essay argues that the public defender should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional responsibility, except for imminent death or serious bodily harm to another. Having accepted the responsibility of representing indigent criminal defendants, the public defender is duty-bound to not compromise that responsibility for competing religious obligations. This argument rests on four premises: (1) the public defender occupies a unique position in our legal system, and options available to private interest lawyers or other clients should not …

Dead Man Talking: Competing Narratives And Effective Representation In Capital Cases Essay., Jeffrey J. Pokorak

St. Mary's Law Journal

As Karl Hammond’s case indicates, to serve justice, balance between the Kill Story and Human Story is necessary in a capital trial. This Essay seeks, through deconstruction of Karl Hammond’s case, to identify and illustrate the values of telling these combating stories. Part III describes the Kill Story and the Human Story in Karl’s case from the record of his trial, appeals, and petitions. Part III also demonstrates how the failure to tell one side of the story in either the guilt-innocence phase or the punishment phase can have a prejudicial effect on the jury’s decision. Part IV then discusses …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva S. Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

The Big Black Man Syndrome: The Rodney King Trial And The Use Of Racial Stereotyes In The Courtroom, Lawrence Vogelman

Fordham Urban Law Journal

Rodney King was portrayed as the prototypical "Big Black Man". Having recognized the existence of the Big Black Man Syndrome as a factor in the Rodney King Case, what are the moral and ethical implications of allowing defense counsel to so cleverly play upon the racial fears they evidently recognized? The issue is whether the use of racist arguments by defense counsel in a criminal trial is unethical. This essay explores the ethical consideration that come into play where a trial advocate is faced with a case where racism, homophobia, or ethnic prejudice is part of the courtroom dynamic.