Law Commons^™

The Constitutionalization Of Ineffective Assistance Of Counsel, Richard Klein

Scholarly Works

No abstract provided.

Religion And The Public Defender, Sadiq Reza

Articles & Chapters

It takes a special breed to have the understanding, compassion

and dedication to do what criminal defense lawyers do .... As

for public defenders - they are doing God's work. If Christ had

been a lawyer, he would have been a public defender.

Virtually all public defenders fight a daily battle against burnout

and the creeping erosion of confidence that inevitably accompany

defending acts we cannot condone and protecting those who are

the source of so much harm and grief. . . . Whether the process

unfolds subtly or suddenly, all defenders must confront the disturbing

consequences of their zealous …

Prosecution And Race: The Power And Privilege Of Discretion, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

This article examines prosecutorial discretion and argues it is a major cause of racial inequality in the criminal justice system. It asserts that prosecutorial discretion may instead be used to construct effective solutions to racial injustice. The article maintains that since prosecutors have more power than any other criminal justice officials, with practically no corresponding accountability to the public they serve, they have the responsibility to use their discretion to help eradicate the discriminatory treatment of African Americans in the criminal justice system.

Part I of the Article explains the importance and impact of the prosecution function. Part II discusses …

United States V. Mcveigh: Defending The Most Hated Man In America, Stephen Jones, Jennifer Gideon

Oklahoma Law Review

No abstract provided.

Race, Cops, And Traffic Stops, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

This article discusses the Supreme Court's failure to provide a clear and effective remedy for discriminatory pretextual traffic stops. The first part explores the discretionary nature of pretextual stops and their discriminatory effect on African-Americans and Latinos. Then, the article examines Whren v. United States, a Supreme Court case in which the petitioners claimed that these “pretextual stops” violate the Fourth Amendment to the Constitution and are racially discriminatory. The Supreme Court rejected the claim, upholding the constitutionality of pretextual stops based on probable cause and noting that claims of racial discrimination must be challenged under the Equal Protection Clause. …

Domination In The Theory Of Justification And Excuse, George P. Fletcher

Faculty Scholarship

The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. …

The Criminal Defense Lawyer As Effective Negotiator: A Systemic Approach, Rodney J. Uphoff

Faculty Publications

In the first issue of the Clinical Law Review, Peter Hoffman challenged clinical legal educators to produce clinical scholarship that is “practical in its orientation and design” and written so as to enhance the ability of lawyers to represent their clients and to help law students prepare for law practice. This article takes up Hoffman's challenge in the context of examining the skill of negotiating or plea bargaining from the perspective of the criminal defense lawyer. Before discussing the methods, approach or techniques that lawyers can use to enhance their ability to bargain effectively, it is critical to understand what …

The Trial As Text: Allegory, Myth And Symbol In The Adversarial Criminal Process - A Critique Of The Role Of The Public Defender And A Proposal For Reform, Kenneth B. Nunn

UF Law Faculty Publications

A position of Federal Defender General should be created to enhance the public image of public defenders. Currently the adversarial system tends to favor prosecutors, making it hard for criminal defendants to obtain a fair trial. Semiotic theory shows how the criminal justice system reflects broader social discourse concerning crime. The defendants' rights are given symbolic representation but are not considered seriously. Criminals are set apart from the rest of society and regarded as undeserving of truly fair representation. The trial can be seen as an allegory demonstrating the guilt of the defendant.

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Are Criminal Defenders Different?, David Luban

Michigan Law Review

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon's view, those who carve out the criminal defense exception have been taken in by what he calls …

Reply: Further Reflections On Libertarian Criminal Defense, William H. Simon

Michigan Law Review

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Defending The Poor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given the harsh reality that the quality of justice that people get in this country often depends on how much money they have , is our society's aspiration toward "equal justice" attainable? Probably not. A criminal defendant's poverty is not necessarily inconsistent with zealous advocacy. But whether lawyers for the poor adequately protect their clients' rights in criminal cases is the subject of ongoing debate.

Tricks Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Criminal defense lawyers must recognize and challenge prosecutorial misconduct whenever it occurs. In my opinion, prosecutor's today wield greater power, engage in more egregious misconduct, and are less subject to judicial or bar association oversight than ever before. Few defense lawyers or commentators would disagree with these conclusions. Indeed, some types of prosecutorial misconduct have become almost “normative to the system.”

Compulsory Acceptance Of Court Appointments: Mallard V. United States District Court For The Southern District Of Iowa, Patricia Ball

Georgia State University Law Review

No abstract provided.

Cross-Examination Of Defendant's Character Witnesses: In Favor Of The Prosecutor's Inquiry Into The Charges At Bar, Risa Karen Plaskowitz

Fordham Law Review

No abstract provided.

Role Of The Criminal Defense Lawyer In Representing The Mentally Impaired Defendant: Zealous Advocate Or Officer Of The Court, Rodney J. Uphoff

Faculty Publications

This article examines a difficult question in the representation of mentally impaired criminal defendants: should counsel be obligated to inform the court of doubts about a client's competency to stand trial even though doing so may be contrary to the client's wishes or best interests? Professor Rodney J. Uphoff analyzes authorities that impose such an obligation on defense lawyers, including an American Bar Association Criminal Justice Standard and a recent decision of the Wisconsin Supreme Court, State v. Johnson. Uphoff concludes that these authorities needlessly undercut the mentally impaired defendant's right to zealous representation. He proposes an alternative ethical model …

Book Review. Criminal Defense As Narrative: Storytelling And Royal Pardons In Renaissance France, Richard M. Fraher

Articles by Maurer Faculty

No abstract provided.

Mistake In The Model Penal Code: A False False Problem, George P. Fletcher

Faculty Scholarship

No solution seems more gratifying to the modern theorist than to claim that an apparently serious problem is not really a problem at all. By branding nonfalsifiable propositions as nonsense, the Vienna circle of logical positivists discovered that the metaphysical concerns of others were really false problems. By ridding philosophy of false problems, Wittgenstein thought that he could let the fly escape from the bottle; he could release the philosophical spirit from its confounding constraints. Brainerd Currie brought this method to the law with his justly famous theory of false conflicts in the conflicts of laws. There was no need …

Confronting Rape Shield, Allison I. Connelly

Law Faculty Popular Media

In this newsletter article, Professor Connelly discusses the difficulties faced by defense attorneys in addressing rape shield laws.

"How Can You Defend Those People?" The Making Of A Criminal Lawyer, Michigan Law Review

Michigan Law Review

A Review of "How Can You Defend Those People?" The Making of a Criminal Lawyer by James S. Kunen

Book Review, Mark J. Loewenstein

Publications

No abstract provided.

Defending The Guilty, Barbara Allen Babcock

Cleveland State Law Review

How can you defend a person you know is guilty? I have answered that question hundreds of times, never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up, abandoning the high-flown explanations of my youth, and resorting to a rather peevish: "Well, it's not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soul-set." While I still believe this, the mind-set might at least be more accessible through a better effort at explanation. First we will examine the nature of the question, then the possible answers. We must …

The Texas Court Of Criminal Appeals: A Modest Critique Of Appellate Decisionmaking, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Do Defendants Have An Attorney When They Have A Public Defender, James Eisenstein

Michigan Law Review

A Review of Counsel for the Poor: Criminal Defense in Urban America by Robert Hermann, Eric Single, and John Boston

The Defense Of Necessity In Texas: Legislative Invention Come Of Age, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Charge Reduction: An Intermediary Stage In The Process Of Labelling Criminal Defendants, Ilene Nagel Bernstein, Edward Kick, Jan T. Leung, Barbara Schulz

Articles by Maurer Faculty

The interactionist perspective emphasizes the imperfect correspondence between alleged deviance and societal reactions. Moreover, it is asserted that values of reactors, statuses of the alleged deviant, and bureaucratic constraints of deviance processing organizations help explain some of that imperfection. Focusing on one intermediary deviance processing stage, i.e., plea bargaining, we explore the degree to which our data are consonant with interactionist assumptions. For a sample of 1,435 male and female criminal defendants, we find the favorability of the charge reduction outcome is partly explained by values of reactors, statuses of the defendant, and bureaucratic constraints of the court. Thus, our …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …

Comment On Error Juris, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Comment On Justification And Excuse, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

The Individualization Of Excusing Conditions, George P. Fletcher

Faculty Scholarship

The excusing conditions of the criminal law are variations of the theme "I couldn't help myself' or "I didn't mean to do it." In this respect the defenses known as necessity, duress, insanity and mistake of law are but extensions of homely, routine apologies for causing harm and violating the rules of social and family life. While we use the plea "I couldn't help myself" to cover the full range of excusing circumstances, each of the formal excuses of the criminal law has a limited sphere. As a general matter, these spheres are dictated by the type of circumstances rendering …