Law Commons^™

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

In Memory Of Monroe Freedman: The Hardest Question For A Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

I’ve chosen to honor Monroe Freedman’s iconic essay on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? This in itself is a hard question. The thousands of federal, state, and local prosecutors in the country would likely give widely varying responses – discretionary charging, immunity grants, bargained pleas, unreliable witnesses, police testimony, and disclosure duties, for starters. Too, prosecutors are not a generic group. Just as some defense lawyers might recoil or be indifferent to Freedman’s provocative thesis, so might many prosecutors reject or be …

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

Reverberations Of The Victim's "Voice": Victim Impact Statements And The Cultural Project Of Punishment, Erin L. Sheley

Indiana Law Journal

No abstract provided.

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff

Faculty Publications

Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and …

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

Failure To Advise Non-Citizens Of Immigration Consequences Of Criminal Convictions: Should This Be Grounds To Withdraw A Guilty Plea?, John J. Francis

University of Michigan Journal of Law Reform

In this Article, Professor Francis argues that non-citizen criminal defendants should be afforded greater latitude in withdrawing guilty pleas, when those pleas are made without awareness of potential immigration consequences. Moreover, the Article highlights the roles both judges and attorneys should play in ensuring that non-citizens do not enter into such uninformed pleas.

Noting that courts have characterized deportation as a collateral consequence of a criminal conviction, the article argues that deportation, following the passage of the Immigration and Naturalization Act of 1996, is unique in its severity and certainty. Many of the same due process considerations which underpin the …

The Public Interest And The Unconstitutionality Of Private Prosecutors, John Bessler

All Faculty Scholarship

This article discusses the history of private and public prosecution in the United States, including standards governing prosecutorial ethics. It argues that the use of private prosecutors is unethical and violative of defendants' constitutional rights. In particular, the article asserts that the use of such prosecutors violates due process principles and creates, at the very least, an unacceptable appearance of impropriety. The article contends that the public's interest in not having its members erroneously charged or convicted in the criminal process outweighs an interested party's right to retain a private prosecutor as set forth in some state laws. In addition …