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“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt Jan 2020

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade ...


Access To Justice For Asylum Seekers: Developing An Effective Model Of Holistic Asylum Representation, Sabrineh Ardalan Jul 2015

Access To Justice For Asylum Seekers: Developing An Effective Model Of Holistic Asylum Representation, Sabrineh Ardalan

University of Michigan Journal of Law Reform

Abducted, beaten, and tortured by government forces that accused him of supporting an opposition group, Matthew fled to the United States with the help of his church pastor.1 The pastor lent Matthew money and helped him obtain a passport and a visa. The pastor also put Matthew in touch with an acquaintance in Boston, who gave him a place to stay for a short time and encouraged him to apply for asylum. The acquaintance sat down with Matthew and helped him fill out the asylum application form. He told Matthew to be as specific and detailed as possible since ...


Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders Apr 2014

Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders

University of Michigan Journal of Law Reform

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged ...


Where Do We Go From Here: Plea Colloquy Warnings And Immigration Consequences Post-Padilla, Vivian Chang Sep 2011

Where Do We Go From Here: Plea Colloquy Warnings And Immigration Consequences Post-Padilla, Vivian Chang

University of Michigan Journal of Law Reform

This Note argues for the passage of criminal procedure rules that would require judges to warn criminal defendants about immigration consequences at plea colloquy. Part I addresses the overlap of criminal and immigration law, arguing that the increased use of the criminal justice system to police federal immigration laws calls for greater protection of non-citizen defendants at plea colloquy. Part II then addresses the legal duties imposed on both defense counsel and trial courts in relation to plea colloquy. Padilla merely addressed the duty of defense counsel to provide constitutionally effective assistance before plea colloquy and did not reach the ...


The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman May 2010

The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman

University of Michigan Journal of Law Reform

In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan ...


Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson Dec 2009

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

University of Michigan Journal of Law Reform

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a ...


"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair May 2009

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro ...


Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt May 2007

Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt

University of Michigan Journal of Law Reform

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's ...


Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt Oct 2006

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to ...


Fair Representation On Juries In The Eastern District Of Michigan: Analyzing Past Efforts And Recommending Future Action, Andrew J. Lievense Jul 2005

Fair Representation On Juries In The Eastern District Of Michigan: Analyzing Past Efforts And Recommending Future Action, Andrew J. Lievense

University of Michigan Journal of Law Reform

This Note builds on past recommendations to reform jury selection systems to make juries more representative of the community. Juries representing a fair cross section of the community are both a statutory and constitutional requirement, as well as a policy goal. How a judicial district designs and implements its jury selection system is important to meeting this requirement.

Part I of this Note analyzes the history and development of the representativeness interest on juries, explains how the United States District Court for the Eastern District of Michigan attempted to meet this interest in the 1980s and 1990s, and reports and ...


Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina Jan 2005

Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina

University of Michigan Journal of Law Reform

This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void ...


Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland Jun 2002

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland

University of Michigan Journal of Law Reform

Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court's hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some ...


Losing The Right To Confront: Defining Waiver To Better Address A Defendant's Actions And Their Effects On A Witness, David J. Tess May 1994

Losing The Right To Confront: Defining Waiver To Better Address A Defendant's Actions And Their Effects On A Witness, David J. Tess

University of Michigan Journal of Law Reform

Part I of this Note examines the current legal landscape regarding a defendant's waiver of the right to confrontation. This Part explores the justifications courts have provided for finding a waiver of the confrontation right, both through the use of the traditional "intentional relinquishment of a known right" standard and the less precise formulations of waiver found in cases of defendant misconduct. Part II offers a critique of the reasoning courts employ to find waiver of the right to confrontation. In the process, the analysis explores general theories of waiver which have been advanced by other commentators. In so ...


The Truth About Massiah, James J. Tomkovicz Jun 1990

The Truth About Massiah, James J. Tomkovicz

University of Michigan Journal of Law Reform

First, the Article will summarize the Justice Department's discussion of the Massiah right to counsel and the exclusion of evidence under Massiah. Next, it will evaluate the nature of the Report and the character of legal scholarship. Finally, it will explore the substantive debate over Massiah. In that section, the Article will point out the matters on which the DOJ and I agree, will attempt to frame the fundamental questions raised by the Massiah doctrine, and will investigate potential sources of answers to those constitutional questions. Ultimately, it will provide the answers that I prefer, explaining the premises that ...


The Sixth Amendment Right To Counsel Under The Massiah Line Of Cases, Department Of Justice Office Of Legal Policy Jun 1989

The Sixth Amendment Right To Counsel Under The Massiah Line Of Cases, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The sixth amendment guarantees to the accused in a criminal prosecution the right "to have the Assistance of Counsel for his defence." In Massiah v. United States, the Supreme Court held this right was violated when there was used against the defendant at trial evidence of incriminating statements deliberately elicited from him by an informant after he had been indicted and in the absence of counsel. In effect, this decision and others that 'followed have created a new constitutional right not to be questioned about pending charges prior to trial except in the presence of an attorney.

One consequence of ...


Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack Oct 1982

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a ...


Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen Apr 1981

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated ...


A Jury Experiment Reanalyzed, Shari Seidman Diamond Jan 1974

A Jury Experiment Reanalyzed, Shari Seidman Diamond

University of Michigan Journal of Law Reform

Researchers in the behavioral sciences have watched with some pride as the courts have given increased attention to social science studies. Judicial interest in empirical studies is a desirable development but one not quite free of danger. The courts are not yet fully accustomed to dealing critically with such evidence. The United States Supreme Court ruled recently, in Colgrove v. Battin, that six-member juries in civil cases meet the seventh amendment requirement of trial by jury. This decision was not surprising in light of Williams v. Florida, in which the Court ruled that six jurors were sufficient to satisfy the ...


The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips Jan 1973

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has ...