Criminal Procedure, Justice, Ethics, and Zeal (original) (raw)

Essays on the Strategic Discretion of Prosecutors in the Legal System

2013

All of the institutions with which corporations interact are housed with the legal system. Due to this, it is crucial to study not only business strategy but also legal strategy. We study the setting of the U.S. legal system and focus on the prosecutor as the focal actor. The prosecutor selects the statute or statutes used in a case and possesses the ability to switch statutes between the indictment and trial stage, which is crucial to her discretionary abilities. The corporate world is rife with examples of prosecutors using polysemantic statutes, defined here legal statutes that have several potential interpretations. We explore this type of behavior and attempt to disentangle the processes that it involves. To do so, we employ a dataset of nearly 73,000 criminal cases in order to explore the relationship between polysemantic laws and conviction. We confirm our hypotheses that more polysemantic laws are associated with higher level of conviction, controlling for the skill of the p...

The Political Economy of Criminal Procedure Litigation

2010

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number of indigent defense or-ganizations has expanded the Supreme Court’s freedom to select cases that frame constitutional issues in ways that conform to the ideological preferences of the Court’s Justices. This framework exposes a potential, but heretofore unidentified, link between the Warren Court’s d...

The Power of Rationalization to Influence Lawyers' Decisions to Act Unethically

Legal ethics (Oxford, England)

This article explores the psychological literature on rationalization and connects it with contemporary questions about the role of in-house lawyers in ethical dilemmas. Using the case study of AWB Ltd, the exclusive marketer of Australian wheat exports overseas, it suggests that rationalizations were influential in the perpetuation by in-house lawyers of AWB's payment of kickbacks to the Iraqi regime. The article explores how lawyers' professional rationalizations can work together with commercial imperatives to prevent in-house lawyers from seeing ethical issues as those outside the organisation would see them. In particular, where lawyers over-identify with their client's commercial point of view and convince themselves that their role is primarily about providing 'technical' advice on commercial matters, wilful or unintended 'ethical blindness' can result. Lawyers can end up involved in or perpetuating serious misconduct by their client organizations.

Parity of Resources for Defense Counsel and the Reach of Public Choice Theory

SSRN Electronic Journal

Lawyers hate to admit it, but criminal defendants do get what they pay for; or rather, they get what the government pays for. Although there are genuine debates about the most efficient ways to organize criminal defense work, money can improve any chosen method of delivering defense services.' The laws of supply and demand are not suspended within the walls of the criminal courthouse. Money even overshadows constitutional doctrine when it comes to improving the quality of criminal defense. Forty years ago, Gideon v. Wainwrigh? put defense counsel into more cases, holding that the state was obliged to provide counsel for all indigent felony defendants. Twenty years ago, Strickland v. Washingtondeclared that the Constitution ensures some minimum level of quality in defense work and established the legal standard for determining when counsel provided constitutionally ineffective assistance that invalidates a conviction. But those basic constitutional guarantees have produced little improvement in defense lawyering in the average case. Year after year, in study after study, observers find remarkably poor defense lawyering that remains unchanged by this constitutional doctrine, and they point to lack of funding as the major obstacle to quality defense lawyering. 4 The power of money, rather than constitutional 1.

Judicial Rhetoric & Lawyers\u27 Roles

2015

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for ...

The Supreme Court's Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?

Am. UL Rev., 2010

The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court's decision to devote so much of its limited time to these matters is noteworthy not only for the individual issues resolved, but also for the cases' existence, indeed dominance, on the docket. This article is the first to present a comprehensive overview of the Supreme Court's newest lawyering cases. Broadly speaking, the cases fall into two categories: access to sound lawyering and protection from bad lawyering. The first group of cases addresses access to legal advice, questioning First Amendment protection of attorney advice and advertising, the application of fee-shifting statutes to encourage legal representation for meritorious cases, and the availability of an immediate appeal to preserve attorney-client privilege in the face of a court order to disclose protected materials. The second group of cases involves harms caused by lawyers. These cases include prosecutorial misconduct and ineffective assistance of counsel claims where a criminal defense attorney lacks the requisite experience, offers insufficient mitigation evidence during sentencing, delivers a poor closing argument, gives faulty advice, misses an essential filing deadline, or fails to request a limiting instruction. Part I of this article examines the cases individually and highlights the ways each case presents critical issues related to the practice of law and the regulation of lawyers. Part II turns to a collective reading of the cases, reflecting on the Court's heightened interest in affairs of the legal profession, and suggesting insights that might be drawn by viewing these cases as part of a larger picture, rather than standing alone. Though the full measure of these cases' impact on professional responsibility jurisprudence will be realized only with the passing of time, this article offers three preliminary observations. First, when read together, the cases reveal a troubling pattern of limits on access to legal advice as well as harms caused by bad lawyering. Second, the cases offer fundamental lessons for those involved in future regulation of the legal profession. Third, the cases illustrate the importance of constitutional considerations to the field of lawyer ethics.