Legal Profession Commons^™

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Defending Those People, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Many practitioners and scholars have written perceptively about the motivations of criminal defenders. Some have written eloquently. I have my own body of work on this and related questions.

This essay is about why the author has devoted her professional career--her life--to defending people most of society would just as soon banish and forget. After nearly thirty years of criminal law practice, her reasons are such a part of her that they are nearly inarticulable. The author is a criminal defender in her soul. She also has been teaching and writing about criminal defense for almost as long as she …

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …