Law Commons^™

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

Failure To Advise Non-Citizens Of Immigration Consequences Of Criminal Convictions: Should This Be Grounds To Withdraw A Guilty Plea?, John J. Francis

University of Michigan Journal of Law Reform

In this Article, Professor Francis argues that non-citizen criminal defendants should be afforded greater latitude in withdrawing guilty pleas, when those pleas are made without awareness of potential immigration consequences. Moreover, the Article highlights the roles both judges and attorneys should play in ensuring that non-citizens do not enter into such uninformed pleas.

Noting that courts have characterized deportation as a collateral consequence of a criminal conviction, the article argues that deportation, following the passage of the Immigration and Naturalization Act of 1996, is unique in its severity and certainty. Many of the same due process considerations which underpin the …

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

Articles

I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Are Criminal Defenders Different?, David Luban

Michigan Law Review

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon's view, those who carve out the criminal defense exception have been taken in by what he calls …

Reply: Further Reflections On Libertarian Criminal Defense, William H. Simon

Michigan Law Review

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

The Public Defender, Robert R. Kimball

Michigan Law Review

A Review of The Public Defender by Lisa J. McIntyre

"How Can You Defend Those People?" The Making Of A Criminal Lawyer, Michigan Law Review

Michigan Law Review

A Review of "How Can You Defend Those People?" The Making of a Criminal Lawyer by James S. Kunen

A Book Review With An Eye To Ethics, William H. Erickson

Michigan Law Review

A Review of The Best Defense by Alan M. Dershowitz

Confessions Of A Criminal Lawyer, Michigan Law Review

Michigan Law Review

A Review of Confessions of a Criminal Lawyer by Seymour Wishman