Law Commons^™

The Pressure Is On—Criminal Defense Counsel Strategies After Padilla V. Kentucky, Bill Hing

Bill Ong Hing

The Supreme Court’s message to criminal defense attorneys in Padilla v. Kentucky was clear: when there is a risk of deportation, defense counsel has a constitutional duty to inform an immigrant defendant of the potential for deportation or adverse immigration consequences prior to pleading guilty. In my view, this constitutional duty places tremendous pressure on defense counsel to do more than advise, because once advised, the client very naturally may want to know what options are available other than going to trial. Rather than simply focusing on how to minimize the time of incarceration for the client under a particular …

"Not Just A Common Criminal": The Case For Sentencing Mitigation Videos, Regina Austin

All Faculty Scholarship

Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing. This article provides a complete analysis of the constituent elements of …

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

The European Union sparked an intercontinental furor last year with proposed legislation to supersede the 1995 Data Protection Directive (DPD). The EU Parliament approved legislation in a 49-3 committee vote in October. The text, which is not yet published in its current draft at the time of this writing, may yet be amended before being accepted by the union’s 28 member states. The legislation is billed a money saver because it would harmonize EU member states’ data protection laws, which have diverged under the DPD umbrella. The business community is not convinced, fearful that costly new demands will strain balance …

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland

Journal Articles

This Article discusses the author's experience with effectively teaching a white collar crime course.

The Collini Case: A Novel (Book Review), Michael S. Ariens

Faculty Articles

Ferdinand von Schirach is a German criminal defense lawyer who has previously published two vivid and brilliant short story collections. His latest book, The Collini Case: A Novel, like his short stories, gives the reader telling details that offer insights into the human condition. But The Collini Case seems less interested in its characters than in teaching about the continuing stain of Germany’s past. This leads von Schirach to use stock figures who have suffered stock tragedies and who engage in stock actions. The novel is simply not realistic enough to suspend disbelief, and only barely avoids being a melodrama. …

A Game Changer? The Impact Of Padilla V. Kentucky On The Collateral Consequences Rule And Ineffective Assistance Of Counsel Claims, Joanna Rosenberg

Fordham Law Review

The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so–called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.

In Padilla …

Guest View: In Defense Of Student Privacy, Richard J. Peltz-Steele

Richard J. Peltz-Steele

Privacy is another American value we rush to sacrifice on the altar of accountability. In Ohio, reporters swarm the yards of liberated kidnapping victims. And in Massachusetts, news trucks besiege the campus at UMass Dartmouth, where I work, and where marathon bombing suspect Dzhokhar Tsarnaev was a student. Media want to know everything about Tsarnaev and his college friends. The university, bound by federal privacy law, has refused access to student academic and financial aid records.

Next Generation Of Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Angela Onwuachi-Willig, Anthony Alfieri

Faculty Scholarship

This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in ways …

Candor, Zeal, And The Substitution Of Judgment: Ethics And The Mentally Ill Criminal Defendant , John D. King

John D. King

This Article explores the tension between autonomy and paternalism that characterizes the attorney-client relationship when a criminal defense attorney represents a mentally impaired client. Specifically, the Article analyzes the ethical frameworks that constrain the discretion of the attorney in this situation and proposes a new paradigm for ethical decisionmaking when an attorney represents a marginally competent client.

The criminal defense attorney is both a zealous advocate for her client and an officer of the legal system. In representing a marginally competent client, the initial ethical dilemma facing the attorney is whether she has an obligation to alert the court to …

Guest View: In Defense Of Student Privacy, Richard J. Peltz-Steele

Faculty Publications

Privacy is another American value we rush to sacrifice on the altar of accountability. In Ohio, reporters swarm the yards of liberated kidnapping victims. And in Massachusetts, news trucks besiege the campus at UMass Dartmouth, where I work, and where marathon bombing suspect Dzhokhar Tsarnaev was a student. Media want to know everything about Tsarnaev and his college friends. The university, bound by federal privacy law, has refused access to student academic and financial aid records.

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

Publications

No abstract provided.

The Poverty Defense, Michele E. Gilman

All Faculty Scholarship

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent …

When Good Prosectuors Go Bad: From Prosecutorial Discretion To Prosecutorial Misconduct, Angela Davis

Angela J Davis

No abstract provided.

Defending Those People, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Many practitioners and scholars have written perceptively about the motivations of criminal defenders. Some have written eloquently. I have my own body of work on this and related questions.

This essay is about why the author has devoted her professional career--her life--to defending people most of society would just as soon banish and forget. After nearly thirty years of criminal law practice, her reasons are such a part of her that they are nearly inarticulable. The author is a criminal defender in her soul. She also has been teaching and writing about criminal defense for almost as long as she …

Confrontation Control, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense …

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard

Michael Pinard

In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …

The Constitutionalization Of Ineffective Assistance Of Counsel, Richard Klein

Richard Daniel Klein

No abstract provided.

A Missed Chance For Justice In Court, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that Osama bin Laden should have been captured and tried in a court of law, rather than assassinated under circumstances suggesting he was unarmed and posed no immediate threat.

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …

When Juveniles Face Questioning, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the age of a suspect should be considered when evaluating whether the questioning was custodial, thereby triggering the right to Miranda warnings.

Culture Clash: The Challenge Of Lawyering Across Difference In Juvenile Court, Tamar R. Birckhead

Tamar R Birckhead

In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client‟s expressed interest rather than relying on what they deem to be in the child‟s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice—which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience—stand in direct contrast to the informal culture …

Legal Ethics In International Criminal Defense, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less …

The Requirement Of An Investigator In Public And Private Practice, Robert M. Sanger

Robert M. Sanger

Candor, Zeal, And The Substitution Of Judgment: Ethics And The Mentally Ill Criminal Defendant , John D. King

American University Law Review

This Article explores the tension between autonomy and paternalism that characterizes the attorney-client relationship when a criminal defense attorney represents a mentally impaired client. Specifically, the Article analyzes the ethical frameworks that constrain the discretion of the attorney in this situation and proposes a new paradigm for ethical decisionmaking when an attorney represents a marginally competent client.

The criminal defense attorney is both a zealous advocate for her client and an officer of the legal system. In representing a marginally competent client, the initial ethical dilemma facing the attorney is whether she has an obligation to alert the court to …