Law Commons^™

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

How Do Prosecutors "Send A Message"?, Steven Arrigg Koh

Faculty Scholarship

The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.

Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Unreasonable Probability Of Error, Jed Handelsman Shugerman

Faculty Scholarship

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient …