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Marquette Law Review

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A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger A. Fairfax Jr. Jan 2009

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger A. Fairfax Jr.

Marquette Law Review

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Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington Jan 2009

Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington

Marquette Law Review

Criminal appeals was a hot topic in the 1970s, reflecting the politics of the Great Society and the development of the constitutional requirements of due process. There was then widespread agreement that the function of the criminal appeal was to assure that the appropriate judges were giving visible attention to all convictions to assure that they were justified. This paper will pose the question: what has become of that vision of a former generation?


The Impact Of Government Appellate Strategies On The Development Of Criminal Law, Andrew Hessick Jan 2009

The Impact Of Government Appellate Strategies On The Development Of Criminal Law, Andrew Hessick

Marquette Law Review

Appellate courts are a principal source of change and growth of the criminal law. In the course of resolving disputes, appellate courts announce rules that govern future cases. For the government, seeing that these rules develop in a favorable way is often more important than the outcome in the case before the appellate court. The government is charged with protecting the public, and developing generally applicable rules of criminal law often is more important in obtaining that goal than securing the conviction of one individual. In its efforts to ensure the development of government-friendly rules, the government does not depend …


Taking Strickland Claims Seriously, Stephen F. Smith Jan 2009

Taking Strickland Claims Seriously, Stephen F. Smith

Marquette Law Review

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or on first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 668 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys. This Essay canvasses a …


"You Can't Get There From Here?": Ineffective Assistance Claims In Federal Circuit Courts After Aedpa, Gregory J. O'Meara S.J. Jan 2009

"You Can't Get There From Here?": Ineffective Assistance Claims In Federal Circuit Courts After Aedpa, Gregory J. O'Meara S.J.

Marquette Law Review

One measure of a society is how it treats those with little power, those who have suffered from problems not of their own choosing. Surely victims of crime fit into this category, and society has not often given them what they desire and need. Though they garner far less sympathy, perpetrators of crime may also be vulnerable to forces beyond their control, including physical and mental disabilities, childhoods marked by abuse and neglect, and incompetent attorneys who fail to fulfill constitutionally mandated standards. The criminal justice system attempts to address deficiencies in the representation criminal defendants receive in part through …


Innocence Protection In The Appellate Process, Keith A. Findley Jan 2009

Innocence Protection In The Appellate Process, Keith A. Findley

Marquette Law Review

It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent …


Judicial Blindness To Eyewitness Misidentification, Sandra Guerra Thompson Jan 2009

Judicial Blindness To Eyewitness Misidentification, Sandra Guerra Thompson

Marquette Law Review

Many studies of exonerations find that erroneous eyewitness identifications play a part in over 75% of all wrongful convictions. These studies have led to numerous proposals for reform of police procedures, yet we see surprisingly little progress toward minimizing eyewitness-identification error, a major cause of failure in the criminal justice systems of this country. This Article presents the findings of an empirical study of recent case law in which defendants challenge the legality of the eyewitness identification procedures. The study involved a review of all cases within the calendar year ending in April 8, 2009 in which state appellate courts …


Context And Compliance: A Comparison Of State Supreme Courts And The Circuits, Sara C. Benesh, Wendy L. Martinek Jan 2009

Context And Compliance: A Comparison Of State Supreme Courts And The Circuits, Sara C. Benesh, Wendy L. Martinek

Marquette Law Review

A host of scholars have argued that decision making in lower courts is at least partially determined by decision making in the U.S. Supreme Court. In other words, Supreme Court jurisprudence in a given area influences the way that the lower courts decide similar cases. This may seem like an unremarkable assertion given the principle of stare decisis and the expectation that lower courts are bound by decisions made by higher courts. Nonetheless, there are intriguing evidentiary omissions with regard to what we know about compliance with Supreme Court precedent. In particular, despite the voluminous expenditures of scholarly time and …


Federal Criminal Appeals: A Brief Empirical Perspective, Michael Heise Jan 2009

Federal Criminal Appeals: A Brief Empirical Perspective, Michael Heise

Marquette Law Review

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Temporary Victims: Interpreting The Federal Fraud And Theft Sentencing Guideline, Ryan N. Parsons Jan 2009

Temporary Victims: Interpreting The Federal Fraud And Theft Sentencing Guideline, Ryan N. Parsons

Marquette Law Review

None


Congressional Legislation: The Next Step For Corporate Deferred Prosecution Agreements, Rachel Delaney Jan 2009

Congressional Legislation: The Next Step For Corporate Deferred Prosecution Agreements, Rachel Delaney

Marquette Law Review

None


Table Of Contents For Volume 93 Issue 2, Marquette University Jan 2009

Table Of Contents For Volume 93 Issue 2, Marquette University

Marquette Law Review

None


Appellate Review Of Sentence Explanations: Learning From The Wisconsin And Federal Experiences, Michael M. O'Hear Jan 2009

Appellate Review Of Sentence Explanations: Learning From The Wisconsin And Federal Experiences, Michael M. O'Hear

Marquette Law Review

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while …


Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen Jan 2009

Death Penalty Appeals And Habeas Proceedings: The California Experience, Gerald F. Uelmen

Marquette Law Review

The administration of the death penalty has become completely dysfunctional in California, to use the words of California Chief Justice Ronald M. George. The California Supreme Court is overwhelmed with a backlog of 80 fully briefed death appeals, and 100 fully briefed habeas petitions. California has the longest delays in the county, with 20-24 years elapsing between sentence and execution. With the longest death row in the county (680+), the chief cause of death on death row is death by natural causes, followed by suicide. California has had 13 executions since the death penalty was restored in 1978. The current …


Appellate Review Of Sentencing Policy Decisions After Kimbrough, Carissa Byrne Hessick Jan 2009

Appellate Review Of Sentencing Policy Decisions After Kimbrough, Carissa Byrne Hessick

Marquette Law Review

In Kimbrough v. United States the U.S. Supreme Court addressed a question left open in United States v. Booker: whether to permit district courts to make sentencing decisions based on a policy disagreement with the Federal Sentencing Guidelines. The Booker Court, in order to avoid a Sixth Amendment jury right problem inherent in mandatory sentencing regimes, had held that the Guidelines were purely "advisory" and that district courts had discretion to sentence outside the ranges prescribed by the Guidelines. Ultimately, the Kimbrough Court held that district courts could sentence outside the advisory Guideline range based solely on a policy disagreement …


Robust Appellate Review Of Sentences: Just How British Is Indiana?, The Honorable Randall T. Shepard Jan 2009

Robust Appellate Review Of Sentences: Just How British Is Indiana?, The Honorable Randall T. Shepard

Marquette Law Review

While the notion of appealability of sentences is widespread, such appeals in most jurisdictions occur under standards like ―abuse of discretion‖ or ―plain error‖ or simply ―excessive.‖ In the late 1960s, Indiana began the process of importing into its constitutional law a piece of British doctrine that contemplates a more robust role for appellate courts. For two decades, this appeared to produce little if any difference in outcomes. In the first decade of the new century, however, a series of rule changes has prompted movement toward the original design.


The Future Of Appellate Sentencing Review: Booker In The States, John F. Pfaff Jan 2009

The Future Of Appellate Sentencing Review: Booker In The States, John F. Pfaff

Marquette Law Review

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Giving Up The Ghost: A Proposal For Dealing With Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager Oct 2008

Giving Up The Ghost: A Proposal For Dealing With Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager

Marquette Law Review

None


It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman Oct 2008

It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman

Marquette Law Review

None


The Family Medical Leave Act: Calculating The "Hours Of Service" For The Reinstated Employee, Joan M. Shepard Oct 2008

The Family Medical Leave Act: Calculating The "Hours Of Service" For The Reinstated Employee, Joan M. Shepard

Marquette Law Review

None


What Plagarism Was Not: Some Preliminary Observations On Classical Chinese Attitudes Toward What The West Calls Intellectual Property, Charles R. Stone Oct 2008

What Plagarism Was Not: Some Preliminary Observations On Classical Chinese Attitudes Toward What The West Calls Intellectual Property, Charles R. Stone

Marquette Law Review

None


Table Of Contents For Volume 92 Issue 1, Marquette University Oct 2008

Table Of Contents For Volume 92 Issue 1, Marquette University

Marquette Law Review

None


Macniven V. Westmoreland And Tax Advice: Using "Purposive Textualism" To Deal With Tax Shelters And Promote Legitimate Tax Advice, Scott A. Schumacher Oct 2008

Macniven V. Westmoreland And Tax Advice: Using "Purposive Textualism" To Deal With Tax Shelters And Promote Legitimate Tax Advice, Scott A. Schumacher

Marquette Law Review

None


Table Of Contents For Volume 91, Number 3, Marquette University Jan 2008

Table Of Contents For Volume 91, Number 3, Marquette University

Marquette Law Review

No abstract provided.


Suicide On Campus: The Appropriate Legal Responsibility Of College Personnel, Ann Maclean Massie Jan 2008

Suicide On Campus: The Appropriate Legal Responsibility Of College Personnel, Ann Maclean Massie

Marquette Law Review

No abstract provided.


Originalism And The Problem Of Fundamental Fairness, R. George Wright Jan 2008

Originalism And The Problem Of Fundamental Fairness, R. George Wright

Marquette Law Review

No abstract provided.


Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske Jan 2008

Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske

Marquette Law Review

No abstract provided.


Statute In The Abyss: The Implications Of Insanity On Wisconsin's Slayer Statute, Christopher M. Eisold Jan 2008

Statute In The Abyss: The Implications Of Insanity On Wisconsin's Slayer Statute, Christopher M. Eisold

Marquette Law Review

No abstract provided.


Table Of Contents For Volume 91, Number 4, Marquette University Jan 2008

Table Of Contents For Volume 91, Number 4, Marquette University

Marquette Law Review

No abstract provided.


Intensive Care For The Public Corporation: Securities Law, Corporate Governance, And The Reorganization Process, Richard E. Mendales Jan 2008

Intensive Care For The Public Corporation: Securities Law, Corporate Governance, And The Reorganization Process, Richard E. Mendales

Marquette Law Review

No abstract provided.