Law Commons^™

Strange Justice For Victims Of The Missouri Public Defender Funding Crisis: Punishing The Innocent, Sean O'Brien

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This article was written in response to an invitation to participate in the 2016 Richard J. Childress Memorial Lecture at St. Louis University School of Law. It focuses on the relationship between public defender funding, quality of representation, and the risk of convicting the innocent, drawing on specific examples of Missouri defendants who were convicted and sentence to prison or to death in spite of their innocence.

Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean O'Brien, Kathleen Wayland

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Overreliance on psychiatric diagnostic labels in the defense of death penalty cases risks triggering prejudicial associations in the minds of decision-makers. This article emphasizes the importance of developing a mitigating counter-narrative of the defendant’s life story, based on an extensive longitudinal and developmental investigation of the defendant and his family’s life trajectory. It is the client’s life story, not diagnostic labels, that reveals his humanity. Cognitive psychology provides a useful framework for explaining human perceptions, and how implicit or explicit biases can interfere with the objective interpretation of data in ways that affect judgment and behavior.

Mental Health, Psychology And The Law Symposium: Introduction, Sean O'Brien

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The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt

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The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

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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 …

When Life Depends On It: Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Sean O'Brien

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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 …

Supreme Court Report 2007-2008, Julie M. Cheslik, Aimee L. Morrison, Tyler J. Scott

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This article reviews the decisions of the U.S. Supreme Court for the 2007-2008 Term that are of particular relevance to state and local governments including those involving voting and elections, speech, class-of-one equal protection claims, immunity, taxation, preemption, and the Fourth and Sixth Amendments.

Against the backdrop of the 2008 presidential election between Democrat Barack Obama and Republican John McCain, and an economy plagued by recession and federal bailouts of the finance and mortgage industries, the Court continued in a largely conservative vein, reflecting the policies and predilections of the majority of justices. The Court reasserted its distaste for unfettered …

Capital Defense Lawyers: The Good, The Bad, And The Ugly, Sean O'Brien

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No abstract provided.

Presumed Guilty: Innocence And The Death Penalty, Sean O'Brien

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DNA has really changed the way that defense lawyers and prosecutors think about wrongful convictions and about the criminal justice process. But it has not changed it enough.

There are two distinct sets of prisoners who have been declared innocent and released from prison. One consists of DNA exonerees that was developed through the efforts of the innocence projects. The other consists of people who have been on death row who have been exonerated. Only relatively few of the death row exonerations were accomplished with DNA technology. This article examines both lists and discusses a few lessons that we are …

The Leopold And Loeb Trial: A Brief Account, Douglas O. Linder

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Few trial transcripts are as likely to bring tears to the eyes as that of the 1924 murder trial of Richard Loeb and Nathan Leopold. Decades after Clarence Darrow delivered his twelve-hour long plea to save his young clients' lives, his moving summation stands as the most eloquent attack on the death penalty ever delivered in an American courtroom. Mixing poetry and prose, science and emotion, a world-weary cynicism and a dedication to his cause, hatred of bloodlust and love of man, Darrow takes his audience on an oratorical ride that would be unimaginable in a criminal trial today. Even …

The Trial Of Sacco And Vanzetti, Douglas O. Linder

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Sacco and Vanzetti: for a generation of Americans, the names of the two Italian anarchists are forever linked. Questions surrounding their 1921 trial for the murders of a paymaster and his guard bitterly divided a nation. As the two convicted men and their supporters struggled on through appellate courts and clemency petitions to avoid the electric chair, public interest in their case continued to grow. As the end drew near, in August 1927, hundreds of thousands of people - from Boston and New York to London and Buenos Aires - took to the streets in protest of what they perceived …

The Supreme Court Report 2005-06, Julie M. Cheslik, Jamie Landes, Leah Pollema, Michael Shelton

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This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a …

Finding Redemption: How Picking Up The Phone Can Change A Lawyer's Life, Sean O'Brien

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The winner of the 2006 ABA Ross Essay Contest debated with himself whether to take a phone call from a death row inmate scheduled to be executed in 9 hours who turned out to be calling to request help for other prisoners. "As I hung up the phone, I experienced a profound awareness that no matter what each of us had previously done in our lives, at that moment Doyle Williams was a better human being than I. If a death row inmate can find redemption, maybe a lawyer can too."

Putting The Guesswork Back Into Capital Sentencing, Sean O'Brien

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In 1972, in Furman v. Georgia, the Supreme Court deemed it "incontestable" that a death sentence is cruel and unusual if inflicted "by reason of [the defendant's] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capital crimes. The issue of innocence was barely a footnote in Furman; the Court's concerns focused on …

Expediting Death: Repressive Tolerance And Post-Conviction Due Process Jurisprudence In Capital Cases, Nancy Levit

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The legitimacy of capital punishment has long been intertwined with the integrity of the procedures for its imposition including opportunities for review on appeal and in collateral hearings. Proposed legislation would dramatically abbreviate the habeas process in capital cases. The proposed bills which would accelerate the imposition of death sentences are matched by an increased willingness by courts to employ summary proceedings to expedite habeas procedures. This acceleration in the imposition of death sentences is part of the larger picture in which capital cases receive different and less favorable constitutional treatment than other criminal or civil cases.

This article draws …