Law Commons^™

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Stein V. United States Of America (U.S. September 15, 2017) (No. 17-250)., Janet Moore

Faculty Articles and Other Publications

Petitioner’s case asks a basic but fundamental question: Will our criminal justice system permit convictions obtained through the knowing use of false testimony, simply because the prosecutor has not also suppressed evidence indicating the testimony was false? The Eleventh Circuit answered this question in the affirmative, but for decades this Court has known a very different justice system, one in which the knowing, uncorrected use of false testimony by the prosecutor could never be countenanced. And for good reason. As this Court has long recognized, the knowing use of false testimony is “as inconsistent with the rudimentary demands of justice …

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.

Brief Of The National Association Of Criminal Defense Lawyers, Et Al As Amici Curiae Supporting Petitioner, Mcwilliams V. Dunn (U.S. March 6, 2017) (No. 16-5294)., Janet Moore

Faculty Articles and Other Publications

We submit this brief to make three important points. First, Ake itself clearly and unambiguously held as a matter of due process that indigent capital defendants must be provided with independent expert assistance upon a reasonable showing of need. The Court was unanimous on this point and swept aside aging precedent that had held provision of neutral assistance was adequate.

Second, Ake was hardly a revolutionary decision. As the Court noted, many states already provided expert assistance. In the first six years after Ake, numerous states explicitly held independent expert assistance must be provided upon an adequate showing of need. …

Brief Of The National Association For Public Defense, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (U.S. January 30, 2017) (No. 16-7730)., Janet Moore

Faculty Articles and Other Publications

This case involves federal courts doubling down on the effective denial of counsel to a severely mentally impaired capital habeas petitioner on the eve of his execution, thereby preventing the full and fair litigation of an issue that demands this Court’s attention: the role played by a petitioner’s mental impairment in determining whether equitable tolling applies to the statute of limitations for filing a habeas petition. This Court should grant the petition to address whether the denial of adequate funding in this case constituted a constructive denial of the right to counsel required by the capital representation statute, 18 U.S.C. …

Critical Issues And New Empirical Research In Public Defense: An Introduction, Andrew L.B. Davies, Janet Moore

Faculty Articles and Other Publications

When we co-founded the Indigent Defense Research Association (IDRA) in 2015, we wanted to create a meeting place for people who share the sense that empirical research has something to contribute to the field of public defense. With over 150 members and counting, IDRA has become a vibrant community of practitioners and researchers who engage via an active listserv, topical monthly conference calls, and the production of white papers and webinars. In addition, IDRA members present papers at conferences of the American Society of Criminology (ASC). Many of the papers in this volume were first presented at the November 2015 …

Knowing Defense, Janet Moore, Andrew L.B. Davies

Faculty Articles and Other Publications

The field of empirical research on public defense is in an early stage of development. Yet the field is also diverse, as a growing community of researchers applies training in disciplines ranging from law and criminology to economics and social psychology. These facts invite reflection on baseline questions about the field that may inform future work. For example, what factors shape our research agendas? What data, methods, and theories are in play? Do these new research agendas align with the research priorities of public defenders and the communities they serve? Should they do so? To begin exploring such questions, this …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last decade, a new push for criminal justice reform has taken hold. While the moral and fiscal costs have been exorbitant over the last forty years, failing state budgets and bipartisan recognition of the “broken” system have finally caused legislatures, politicians, and advocates to reassess the costs and benefits of the criminal justice system. Breaking the “tough on crime/soft on crime” binary, the “smart on crime” motto has become a helpful tool in reform efforts aimed at reducing the number of individuals incarcerated and ensuring its fairness, regardless of race and socioeconomic status. Little attention, however, has been …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Christensen V. United States Of America (U.S. November 7, 2016) (No. 16-461)., Janet Moore

Faculty Articles and Other Publications

The jury is essential to our structure of government, available to criminal defendants as the final arbiter of guilt. As this Court has recognized time and again, the jury serves an important role both structurally within the balance of powers and as a check on governmental power, adding a layer of protection for individual defendants.

The rule applied by the Ninth Circuit and some other courts, allowing dismissal of a holdout juror if a judge sees no reasonable possibility that his view is connected to the merits of the case, threatens the fundamental role of the jury. In contrast to …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Bridgeman V. District Attorney For Suffolk District, 476 Mass. 298 (2016) (No. Sjc-12157)., Janet Moore

Faculty Articles and Other Publications

As the highest courts in Florida, Missouri, Michigan, New York, and Pennsylvania have demonstrated, systemic relief is necessary and appropriate to cure systemic failures that deny access to courts by imposing overwhelming demands on struggling public defense systems. Government misconduct created exactly that type of constitutional crisis by flooding the Commonwealth’s criminal legal system with 24,000 Dookhan cases. New revelations of even more corruption in the Commonwealth’s forensic sciences system are now anticipated to exacerbate that crisis by adding another 18,000 Farak wrongful-conviction cases. At the same time, the District Attorneys have undermined progress on fair, reliable case-by-case resolution of …

Brief Of The Roderick & Solange Macarthur Justice Center, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (8th Cir. August 19, 2016) (No. 16- 02730)., Janet Moore

Faculty Articles and Other Publications

This case involves a district court’s patent disregard for a deeply mentally impaired defendant’s right to meaningful representation in capital federal habeas proceedings. By funding only 6% of defense counsel’s request for necessary expert and other resources, the District Court violated the constitution, ignored federal statutory mandates, flouted the Supreme Court’s remand order, blocked counsel’s ability to satisfy professional and ethical obligations, publicly disclosed contents of previously protected information about defense strategy, and set a very dangerous precedent for our justice system.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Make Them Hear You: Participatory Defense And The Struggle For Criminal Justice Reform, Janet Moore, Marla Sandys, Raj Jayadev

Faculty Articles and Other Publications

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration. This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems. After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives. First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard. Second, …

Constructing Crimmigration: Latino Subordination In A “Post-Racial” World, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last forty years, the concern over the relationship between noncitizens and criminality has reached epic proportions. Laws, policies, procedures, and rules have been developed, the immigration and criminal justice system have been employed, and billions of dollars have been spent towards detecting, detaining, prosecuting, and removing those who are targeted as posing “the greatest threat to the nation.” As a result, a “new” phenomenon emerged, crimmigration, that not only redesigned the criminal and immigration systems, but also brought about a cultural transformation in the United State —restructuring social categories, diminishing economic and political power, and perpetuating the marginalization …

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Faculty Articles and Other Publications

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

Understanding Immigration: Satisfying Padilla's New Definition Of Competence In Legal Representation, Yolanda Vazquez

Faculty Articles and Other Publications

Panel Discussion on Padilla v. Kentucky.

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

False Justice And The “True” Prosecutor: A Memoir, Tribute, And Commentary, Mark A. Godsey

Faculty Articles and Other Publications

This article is a review of False Justice: Eight Myths that Convict the Innocent by Jim and Nancy Petro. But this article is also a memoir, in that I tell the story, from my own perspective as Director of the Ohio Innocence Project, of how I have watched Jim Petro go from prosecutor and elected Attorney General of Ohio to a leading champion of the wrongfully convicted across the nation. The article is also a commentary in that, along the way, I address what makes Jim Petro so different from many prosecutors in this country. In this respect, I discuss …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

Faculty Articles and Other Publications

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Convictions, Yolanda Vazquez

Faculty Articles and Other Publications

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding …

She Blinded Me With Science: Wrongful Convictions And The "Reverse Csi-Effect", Mark A. Godsey, Marie Alou

Faculty Articles and Other Publications

Prosecutors in the United States are often heard to complain these days of the "CSI-effect."' When they make this complaint, they mean that the popularity of television shows like CSI has made it unduly difficult for them to obtain convictions of guilty defendants. Jurors today have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. The unfortunate result is that guilty defendants are acquitted because of a lack of forensic evidence in cases where, in reality, no such forensic evidence was possible or …

She Blinded Me With Science: Wrongful Convictions And The "Reverse Csi-Effect", Mark A. Godsey

Faculty Articles and Other Publications

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse …

Causes, Consequences And Cures Of Racial And Ethnic Disproportionality In Conviction And Incarceration Rates: An Introduction, Janet Moore

Faculty Articles and Other Publications

This piece introduces Prosecution and Racial Justice, a panel discussion with Wayne McKenzie of the Vera Institute for Justice, by outlining the legal-historical context for reform strategies that detect and correct effects of racial bias in prosecutorial decision-making.

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

Faculty Articles and Other Publications

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

Going Home To Stay: A Review Of Collateral Consequences Of Conviction, Post-Incarceration Employment, And Recidivism In Ohio, Marlaina Freisthler, Mark A. Godsey

Faculty Articles and Other Publications

Currently, Ohio's legislative and administrative schemes dealing with employment are unduly punitive toward convicted felons. This article suggests an alternative approach to achieve the same legitimate purposes that the current scheme purports to serve. The first part of the article is a general discussion of collateral consequences. The second part discusses the manner in which collateral consequences can be imposed to achieve inappropriate results and describes the ABA's recent Criminal Justice Standards on collateral consequences as a method to avoid inappropriate results. The third part evaluates Ohio's efforts to return prisoners to communities following conviction and the effect that current …

The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley

Faculty Articles and Other Publications

One cannot adequately consider whether the current administration of the death penalty in America measures up to modern notions of decency without doing so in light of the revolution that has occurred over the past decade in the American criminal-justice system - the Innocence Revolution. Up through the 1990s, as a society, we believed our criminal-justice system was highly accurate, but the recent advent of DNA testing and other advanced technologies has demonstrated the naiveté of such beliefs. This article will discuss the history of the Innocence Revolution, examine the impact of that revolution on our society, and ask: "What …

Living "Off-Stage": The Semiotic Potential Of Narrative In Paula Johnson's Inner Lives: Voices Of African-American Women In Prison, Emily Houh

Faculty Articles and Other Publications

The hopelessness and hopefulness in the voices of the women profiled in Inner Lives exemplify a semiotic response to the racism that permeates the criminal justice and prison systems in the United States. This article asks how, in the telling of their stories and living of their lives, the incarcerated and formerly incarcerated women profiled in the book engage in a working semiotics. The extraordinary thing about the narratives collected by Johnson is that they describe how women who have been placed at the very bottom of the American social consciousness are successfully constructing their own image-repertoires rather than accepting …

International Criminal Courts And Fair Trials: Difficulties And Prospects, Jacob Katz Cogan

Faculty Articles and Other Publications

The question "Can international criminal courts provide defendants with fair trials?" is one that has barely been posed, let alone answered. The realm of international criminal justice is distinguished from domestic criminal justice not simply because accountability and sovereignty weigh heavier in this context, but also because of the absence of an effective counterweight to check these interests. One approach to the fair trial issue focuses on the rights delineated in the tribunals' statutes, rules of procedure and evidence, and case law. A second approach to the problem of fair trials asks, instead, whether these international courts have the independence …

Walking The Edge Of Death: An Annotated Bibliography On Juveniles, The Mentally Ill, And The Death Penalty, Susan M. Boland

Law Librarian Articles and Other Publications

The death penalty is not as monolithic as it seems at first glance. A storm of debate has centered on the application of this, the harshest criminal penalty of all, to the mentally ill, mentally retarded, and juveniles. They are our most vulnerable and least culpable citizens. This bibliography consists of annotated references to periodical articles, books, Web sites, and Supreme Court cases that examine the application of the death penalty to juveniles, the mentally ill, and the mentally retarded. It does not include newspaper articles, popular magazines, Web sites that offer no substantive content, or materials that are unobtainable …

The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan

Faculty Articles and Other Publications

International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the …

Truth In Sentencing: Accepting Responsibility Under The United States Sentencing Guidelines, Bradford Mank

Faculty Articles and Other Publications

The United States Sentencing Guidelines (hereinafter Guidelines) allow federal district courts to reduce a defendant's sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct .... " In United States v. Perez-Franco, the United States Court of Appeals for the First Circuit held that the above Guidelines section on acceptance of responsibility did not require a defendant to accept responsibility for charges that were to be dismissed as part of a plea agreement. The Perez-Franco decision is an affront to the fundamental principle that a defendant ought to take personal responsibility for …