Law Commons^™

Santa Fe Reporter Interviews Maryam Ahranjani: Change Of Venue, District Court Judge To Consider Defense’S Argument That A Fair Trial In The Slaying Of Basketball Star Is Impossible In Santa Fe, Maryam Ahranjani, Katherine Lewin

Faculty Scholarship

Maryam Ahranjani, a criminal law professor at the University of New Mexico, concedes that the "accessibility" of information is much different now than when the Founding Fathers ratified the Sixth Amendment (the right to a speedy and public trial by an impartial jury), but that the original idea of that section of the Constitution stemmed from the belief trials are best held in the community in which they occurred.

"Certainly judges are willing to change venues sometimes, consistent with that original idea that the local community is what defines the crime and so they're the ones who should determine whether …

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

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 …

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 …

Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

All Faculty Scholarship

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …

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 …

Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

Taming Negotiated Justice, Stephanos Bibas

All Faculty Scholarship

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …

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 …

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

Articles

The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such …