Law Commons^™

Preliminary-Hearing Waivers And The Contract To Negotiate, Michael D. Cicchini

Pepperdine Law Review

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future …

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Northwestern University Law Review

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

Violent Videos: Criminal Defense In A Digital Age, Amy Kimpel

Georgia State University Law Review

Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma.

This Article includes results …

Big Law, Public Defender-Style: Aggregating Resources To Ensure Uniform Quality Of Representation, Eve Hanan

Washington and Lee Law Review Online

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards’ central argument in The Professional Prospectus: A Call for Effective Professional Disclosure that attorneys should provide potential clients with a prospectus disclosing their performance history_—applies to criminal defense. I reject the proposition that most people …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

Taking A Mulligan: The Special Challenges Of Narrative Creation In The Post-Conviction Context, Donald R. Caster, Brian C. Howe

Maryland Law Review

No abstract provided.

Not Fit To Be Tried: Due Process And Mentally-Incompetent Criminal Defendants, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

A mentally-impaired accused who cannot comprehend the nature of the proceedings or assist his counsel in presenting his defense to the criminal charge cannot be tried as a matter of due process of law. In Jackson v. Indiana, 1 the United States Supreme Court held that due process concerns also bar the never-ending jeopardy resulting from an inability to restore an impaired accused to competence for purposes of proceeding to trial. When an Arkansas circuit court ordered the dismissal of pending criminal charges against an impaired accused who could not be restored to fitness for trial, the Arkansas Supreme Court, …

Legal Strategies For Defending The Combat Veteran In Criminalcourt, Brockton D. Hunter, Ryan Christian Else

Mitchell Hamline Law Review

No abstract provided.

Not All Plea Breaches Are Equal: Examining Heredia’S Extension Of Implicit Breach Analysis, Kevin Arns

Northwestern University Law Review

When the government enters into a plea agreement with a criminal defendant that stipulates that the government will give a specific sentence recommendation in exchange for the defendant’s guilty plea, it can implicitly breach that agreement by clearly distancing itself from the recommendation at the sentencing hearing. In most circuits, the implicit breach of a non-court-binding plea agreement—an agreement where the defendant is bound to the guilty plea even if the court rejects the sentence recommendation—entitles defendants to a remedy. However, in 2014, the Ninth Circuit was the first circuit to hold that a defendant is entitled to a remedy …

Judging Judicial Elections, Michael S. Kang, Joanna M. Shepherd

Michigan Law Review

Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election …

In-House Counsel Beware!, Katrice Bridges Copeland

Fordham Urban Law Journal

No abstract provided.

Candor, Zeal, And The Substitution Of Judgment: Ethics And The Mentally Ill Criminal Defendant , John D. King

American University Law Review

This Article explores the tension between autonomy and paternalism that characterizes the attorney-client relationship when a criminal defense attorney represents a mentally impaired client. Specifically, the Article analyzes the ethical frameworks that constrain the discretion of the attorney in this situation and proposes a new paradigm for ethical decisionmaking when an attorney represents a marginally competent client.

The criminal defense attorney is both a zealous advocate for her client and an officer of the legal system. In representing a marginally competent client, the initial ethical dilemma facing the attorney is whether she has an obligation to alert the court to …

Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts

Fordham Urban Law Journal

Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. Indeed, some states have heeded the call. But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to …

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reenty Into Criminal Defense Lawyering, Michael Pinard

Fordham Urban Law Journal

Over the past two decades, public defender offices across the country have broadened the range of defense services provided to indigent clients. These expanded services, some of which involve representing clients on related non-criminal matters such as housing and public benefits, are included in what is now commonly referred to as "holistic representation."' This form of representation strives to encompass the various underlying issues that often lead to clients’ experiences with the criminal justice system, with the aim of addressing those circumstances and preventing future criminal involvement. Holistic representation signals a paradigmatic shift in defense philosophy and ideology and has …

Gambling With Ethics And Constitutional Rights: A Look At Issues Involved With Contingent Fee Arrangements In Criminal Defense Practice, Adam Silberlight

Seattle University Law Review

This Article attempts to shed light on the use of a contingent fee arrangement in criminal defense, and offers differing views pertaining to this topic. First, this Article will generally describe what a contingent fee is. Second, the role and potential application of the contingent fee in both criminal and civil settings will be discussed. Third, problems associated with such an arrangement in criminal defense practice will be addressed, as will certain positive aspects of such an arrangement. Finally, this article will discuss how lawmakers could address this issue to ensure that contingency arrangements cannot be abused.

Transformative Criminal Defense Practice: Truth, Love, And Individual Rights- The Innovative Approach Of The Georgia Justice Project, Douglas Ammar, Tosha Downey

Fordham Urban Law Journal

Georgia Justice Project has a unique approach to criminal defense and rehabilitation which is based on a relationship and community-oriented ethic. Focused on only accepting clients who are willing to make a serious commitment to changing their lives, the GJP ensures that the client moves beyond social, emotional and personal challenges that contributed to their legal problems. This article describes the unique factors of the GJP that have contributed to its continued success.

"Forgive Me Victim For I Have Sinned": Why Repentance And The Criminal Justice System Do Not Mix - A Lesson From Jewish Law, Cheryl G. Bader

Fordham Urban Law Journal

This essay will critique the Georgia Justice Project's encouragement of confessions in the context of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law. Specifically, this essay posits that the absolute prohibition on the use of confessions in a legal system firmly rooted in religious values recognizes the danger inherent in combining the act of speaking of one's sins for religious penance with the use of such confessions in the criminal adjudication process. The Jewish legal system avoids these inherent dangers by completely devaluing the accused's confession. The GJP, in contrast, merges the …

United States V. Mcveigh: Defending The Most Hated Man In America, Stephen Jones, Jennifer Gideon

Oklahoma Law Review

No abstract provided.

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 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 …

"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

Defending The Guilty, Barbara Allen Babcock

Cleveland State Law Review

How can you defend a person you know is guilty? I have answered that question hundreds of times, never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up, abandoning the high-flown explanations of my youth, and resorting to a rather peevish: "Well, it's not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soul-set." While I still believe this, the mind-set might at least be more accessible through a better effort at explanation. First we will examine the nature of the question, then the possible answers. We must …

Do Defendants Have An Attorney When They Have A Public Defender, James Eisenstein

Michigan Law Review

A Review of Counsel for the Poor: Criminal Defense in Urban America by Robert Hermann, Eric Single, and John Boston

Split Loyalty: An Ethical Problem For The Criminal Defense Lawyer, Gerald S. Gold

Cleveland State Law Review

Nowhere in law do ethical considerations play a greater part or come into greater conflict than in the defense of those accused of crime. The lawyer defending an accused owes a duty to his client, a duty to society, and a duty to the court. The duties to each are not completely clear and when the various loyalties conflict, fair, safe, and moral resolutions are most difficult.