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Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean D. O'Brien, Kathleen Wayland
Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean D. O'Brien, Kathleen Wayland
Hofstra Law Review
The article presents practical advice for U.S. defense attorneys on the use of narratives to counter the prejudicial psychiatric labels that prosecutors invoke in capital punishment cases, and it mentions implicit bias and decision-making in law. Cognitive psychology is addressed, along with the use of stereotypes and labels such as psychopathy and Antisocial Personality Disorder in order to generate fear. The admissibility of evidence is examined, along with expert evidence in America.
Introduction: The Past, Present, And Future Of Effective Defense Representation In Capital Cases, Eric M. Freedman
Introduction: The Past, Present, And Future Of Effective Defense Representation In Capital Cases, Eric M. Freedman
Hofstra Law Review
An introduction is presents in which the author discusses various reports within the journal on topics including advice for U.S. attorneys on how to effectively represent criminal defendants in capital punishment cases, prosecutorial decision making, and performance standards for U.S. lawyers.
The Aba Guidelines: A Historical Perspective, Russell Stetler, Aurélie Tabuteau
The Aba Guidelines: A Historical Perspective, Russell Stetler, Aurélie Tabuteau
Hofstra Law Review
This paper explains how the standards of practice in the development of mitigating evidence -- a core component of capital defense practice -- evolved from the reinstatement of the U.S. death penalty in the 1970s to the publication of the original edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in 1989.
Improving State Capital Counsel Systems Through Use Of The Aba Guidelines, Robin M. Maher
Improving State Capital Counsel Systems Through Use Of The Aba Guidelines, Robin M. Maher
Hofstra Law Review
The article discusses the reported efforts to improve state capital punishment counsel systems through the use of the American Bar Association's (ABA's) "Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases" which have apparently been adopted by every active death penalty jurisdiction in the U.S. as of March 2014. America's criminal justice system and ineffective assistance of counsel claims in the U.S. are mentioned, along with various state supreme courts.
Motivation Matters: Guidelines 10.13 And Other Mechanisms For Preventing Lawyers From Surrendering To Self-Interest In Responding To Allegations Of Ineffective Assistance In Death Penalty Cases, Tigran W. Eldred
Hofstra Law Review
Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively …
The Development Of China's Death Penalty Representation Guidelines: A Learning Model Based On The Aba Guidelines For The Appointment And Performance Of Defense Counsel In Death Penalty Cases, Jie Yang
Hofstra Law Review
The article discusses the development of death penalty legal representation guidelines in China based on the American Bar Association's "Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases" as of 2014. According to the article, law professors, legal advocates, and defense attorneys in China collaborated on the creation of a code for lawyers who represent defendants in death penalty cases. China’s Supreme People’s Court and defendants' rights are examined.
Deconstructing Antisocial Personality Disorder And Psychopathy: A Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean D. O'Brien
Deconstructing Antisocial Personality Disorder And Psychopathy: A Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean D. O'Brien
Hofstra Law Review
Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …
The Continuing Duty Then And Now, David M. Siegel
The Continuing Duty Then And Now, David M. Siegel
Hofstra Law Review
The “new” recognition in the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases of a continuing duty on the part of defense counsel to safeguard the interests of former clients by facilitating the work of successor counsel was essential to implementing post-conviction review of the effectiveness of their representation – but it was not unprecedented. Over a century before lawyers, often in capital cases, had been discharging just such a continuing duty to former clients and the article traces these historical antecedents. Making the duty in ABA Guideline 10.13 real, however, …
Sudden Death: A Federal Trial Judge's Reflections On The Aba Guidelines For The Appointment And Performance Of Defense Counsel In Death Penalty Cases, Mark W. Bennett
Sudden Death: A Federal Trial Judge's Reflections On The Aba Guidelines For The Appointment And Performance Of Defense Counsel In Death Penalty Cases, Mark W. Bennett
Hofstra Law Review
An experienced federal district judged discuss the role of the ABA Guidelines for the Appointment Performance of Defense Counsel in Death Penalty Cases. This includes his personal experiences from two lengthy federal death penalty trials where both defendants received the death penalty. The Guidelines were even more crucial in a 18 trial day, 28 U.S.C. 2255 proceeding, where the judge granted an new penalty phase re-trial based, in part, on significant ineffective assistance of counsel for many violations of the Guidelines and the 6th Amendment. It is a sad narrative of what can go wrong when the Guidelines are not …
Ensuring Effective Counsel For Parents: Extending Padilla To Termination Of Parental Rights Proceedings, Sarah Freeman
Ensuring Effective Counsel For Parents: Extending Padilla To Termination Of Parental Rights Proceedings, Sarah Freeman
Hofstra Law Review
The increase in the number of incarcerated women, combined with the severe effects of ASFA's 15/22 rule, has dramatically increased the risk that a incarcerated mother face a termination of her parental rights. Currently, existing ethical and statutory protections have been insufficient to protect these parents’ rights to their children. However, after Padilla v. Kentucky, it is likely that there is a Sixth Amendment obligation on criminal defense attorneys to advise their clients about the effect of the criminal process on a TPR proceeding. This advice should not be limited to a mere suggestion that clients seek legal advice from …
Understanding Defense-Initiated Victim Outreach And Why It Is Essential In Defending A Capital Client, Mickell Branham, Richard Burr
Understanding Defense-Initiated Victim Outreach And Why It Is Essential In Defending A Capital Client, Mickell Branham, Richard Burr
Hofstra Law Review
This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.
Effective capital defense lawyers must embrace, not suppress, human empathy. A defense team that demonstrates genuine compassion for the survivors - reaching out to get to know them, to listen to their stories, and to discern the interests the survivors hope to have met in the judicial proceedings - increases the possibility that the proceedings will end with compassion for their client. As a practical matter, this may well occur through some sort of agreed-upon …
Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases
Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases
Hofstra Law Review
No abstract provided.
A Former Alabama Appellate Judge's Perspective On The Mitigation Function In Capital Cases, William M. Bowen Jr.
A Former Alabama Appellate Judge's Perspective On The Mitigation Function In Capital Cases, William M. Bowen Jr.
Hofstra Law Review
This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.
The article, based on the author's eighteen years of service on the Alabama Court of Criminal Appeals, explicates how the collection and presentation of mitigation evidence in accordance with the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue enable appellate courts to make reliable decisions in capital cases. Recounting his …
Introduction: Re-Stating The Standard Of Practice For Death Penalty Counsel: The Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Eric M. Freedman
Hofstra Law Review
This is the Introduction to the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases, and summarizes its thirteen articles.
A central - indeed, arguably the central - duty of defense counsel in a capital case is to humanize the client in the eyes of those who will decide his fate. The daunting task of imagining, collecting, and presenting such mitigation evidence pervades counsel's responsibilities from themoment of detention on potentially capital charges to the instant of execution.
A truly multi-disciplinary team, with skills in eliciting and documenting sensitive …
Cultural Competency In Capital Mitigation, Scharlette Holdman, Christopher Seeds
Cultural Competency In Capital Mitigation, Scharlette Holdman, Christopher Seeds
Hofstra Law Review
Cultural factors so pervasively influence the interactions of the client with other people - including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team - that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As …
The Indispensable Role Of The Mitigation Specialist In A Capital Case: A View From The Federal Bench, Helen G. Berrigan
The Indispensable Role Of The Mitigation Specialist In A Capital Case: A View From The Federal Bench, Helen G. Berrigan
Hofstra Law Review
This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.
Writing from the perspective of a federal trial judge, the author, who is Chief Judge of the United States District Court for the Eastern District of Louisiana, describes the crucial importance of mitigation development in the trial of a capital case in accordance with the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject …
The Aba And The Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Robin M. Maher
The Aba And The Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Robin M. Maher
Hofstra Law Review
This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.
This article, whose author is the Director of the ABA Death Penalty Representation Project, places the Supplementary Guidelines in the context of the ABA's work in the death penalty field. The ABA does not oppose capital punishment but does favor justice. Hence the organization has long insisted that any jurisdiction desiring to retain execution as a criminal sanction provide high quality defense representation in accordance with the ABA's Guidelines for the Appointment and Performance of …
When Life Depends On It: Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Sean D. O'Brien
When Life Depends On It: Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Sean D. O'Brien
Hofstra Law Review
The Supplementary Guidelines for the Mitigation Function of Capital Defense Teams are the culmination of three years of work coordinated by the Public Interest Litigation Clinic (PILC) and the University of Missouri-Kansas City School of Law in cooperation with seasoned capital litigators and mitigation specialists across the United States. This article describes the Supplementary Guidelines and the process by which they were researched and developed. Part I describes the Supplementary Guidelines and the process by which they were researched and developed. Part II describes the reasons for undertaking this project. Part III describes the process of investigating, researching and drafting …
Criminal Defense Lawyering At The Edge: A Look Back, Bruce A. Green
Criminal Defense Lawyering At The Edge: A Look Back, Bruce A. Green
Hofstra Law Review
This Article is about a prominent, early 20th-century New York City criminal defense lawyer, John Palmieri. In 1915, Palmieri defended a minor politician, John J. Delane, on charges of receiving the proceeds of prostitution from a woman with whom Delane was living. In the course of thetrial, Palmieri elicited the woman's false testimony - whether or not intentionally was later disputed - and he summed up on a portion of her testimony the he undeniably knew to be false. Palmieri's conduct led to a criminal prosecution (in which he was defended by Max Steuer) and disciplinary charges that were eventually …
The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith
The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith
Hofstra Law Review
No abstract provided.
Scandals Great And Small, John Steele
What Lawyers, What Edge?, Michael E. Tigar
Fighting Fire With Fire: Private Attorneys Using The Same Investigative Techniques As Government Attorneys: The Ethical And Legal Considerations For Attorneys Conducting Investigations, Gerald B. Lefcourt
Hofstra Law Review
No abstract provided.
Monroe Freedman's Solution To The Criminal Defense Lawyer's Trilemma Is Wrong As A Matter Of Policy And Constitutional Law, Stephen Gillers
Monroe Freedman's Solution To The Criminal Defense Lawyer's Trilemma Is Wrong As A Matter Of Policy And Constitutional Law, Stephen Gillers
Hofstra Law Review
No abstract provided.
A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg
A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg
Hofstra Law Review
Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor …
The Professional Obligation To Raise Frivolous Issues In Death Penalty Cases, Monroe H. Freedman
The Professional Obligation To Raise Frivolous Issues In Death Penalty Cases, Monroe H. Freedman
Hofstra Law Review
Lawyers are generally familiar with the ethical rule forbidding frivolous arguments, principally because of sanctions imposed under rules of civil procedure for making such arguments. Not all lawyers are aware, however, of two ways in which the prohibitions of frivolous arguments are restricted in both the rules themselves and in their enforcement. First, the ethical rules have express limitations with respect to arguments made on behalf of criminal defendants, and courts are generally loath to sanction criminal defense lawyers. Second, the term "frivolous" is narrowed, even in civil cases, by the way it is defined and explained in the ethical …
'The Guiding Hand Of Counsel' And The Aba Guidelines For The Appointment And Performance Of Defense Counsel In Death Penalty Cases, Robin M. Maher
'The Guiding Hand Of Counsel' And The Aba Guidelines For The Appointment And Performance Of Defense Counsel In Death Penalty Cases, Robin M. Maher
Hofstra Law Review
No abstract provided.
Why An Independent Appointing Authority Is Necessary To Choose Counsel For Indigent People In Capital Punishment Cases, Ronald J. Tabak
Why An Independent Appointing Authority Is Necessary To Choose Counsel For Indigent People In Capital Punishment Cases, Ronald J. Tabak
Hofstra Law Review
No abstract provided.
Commentary On Counsel's Duty To Seek And Negotiate A Disposition In Capital Cases (Aba Guideline 10.9.1), Russell Stetler
Commentary On Counsel's Duty To Seek And Negotiate A Disposition In Capital Cases (Aba Guideline 10.9.1), Russell Stetler
Hofstra Law Review
This paper discusses counsel's duty to seek to resolve death penalty cases through negotiated dispositions for a sentence less than death.
Add Resources And Apply Them Systemically: Governments' Responsibilities Under The Revised Aba Capital Defense Representation Guidelines, Eric M. Freedman
Add Resources And Apply Them Systemically: Governments' Responsibilities Under The Revised Aba Capital Defense Representation Guidelines, Eric M. Freedman
Hofstra Law Review
The death penalty is expensive. For many reasons-including the reality that if the prosecution insists on the death penalty there is essentially no chance of a guilty plea, and the fact that the bifurcation between guilt and penalty that uniquely characterizes capital cases imposes double costs throughout the process of investigation, trial, and appeals -a state's decision to have a criminal justice system in which death is available as a sanction necessarily entails substantially higher costs than the contrary decision does.