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Articles 1 - 21 of 21
Full-Text Articles in Legal Profession
“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
“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 of “adequacy …
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
St. Mary's Journal on Legal Malpractice & Ethics
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …
"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe
"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe
Michigan Law Review
In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …
It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White
It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White
Dickinson Law Review (2017-Present)
The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.
This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …
The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger
The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger
University of Richmond Law Review
No abstract provided.
What Gideon Did, Sara Mayeux
What Gideon Did, Sara Mayeux
All Faculty Scholarship
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.
Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel
The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel
W. Bradley Wendel
The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the …
The Perilous Psychology Of Public Defending, Scott Howe
The Perilous Psychology Of Public Defending, Scott Howe
Scott W. Howe
This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of …
Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky
Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky
All Faculty Scholarship
There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …
Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas
Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas
All Faculty Scholarship
This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …
The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan
The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan
Pepperdine Law Review
No abstract provided.
The Right To Waive Competent Counsel: Extending The Faretta Waiver, Augustine Gerard Yee
The Right To Waive Competent Counsel: Extending The Faretta Waiver, Augustine Gerard Yee
Pepperdine Law Review
No abstract provided.
The Illusory Right To Counsel, Eve Brensike Primus
The Illusory Right To Counsel, Eve Brensike Primus
Articles
Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
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 number of …
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Articles
This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …
The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein
The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein
Indiana Law Journal
No abstract provided.
The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii
The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii
Michigan Law Review
This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …
Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman
Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman
Publications
No abstract provided.
Constitutional Law--The Right To A Jury Trial In Disbarment Proceedings, Michigan Law Review
Constitutional Law--The Right To A Jury Trial In Disbarment Proceedings, Michigan Law Review
Michigan Law Review
Lawyers in the United States have long been considered officers of the court, subject to examination for good moral character and adequate education in law before admission to the bar. They have also been subject to summary proceedings for disbarment whenever they have deviated from accepted standards of conduct embodied in various codes of professional ethics. Although the specific grounds for disbarment vary from state to state and between federal and state courts, one thing is clear: in the absence of a specific statutory provision there traditionally has been no right to a jury trial in disbarment proceedings. Since the …
Beaney: The Right To Counsel In American Courts, William M. Kunstler
Beaney: The Right To Counsel In American Courts, William M. Kunstler
Michigan Law Review
A Review of The Right to Counsel in American Courts. By William M. Beaney