Plan to Preserve an Endangered Species: The Zealous Criminal Defense Lawyer, A (original) (raw)
Related papers
Hofstra Law Review, 2016
For decades, scholars, lawyers, and judges have spotlighted what is now recognized as a permanent state of crisis in the system of public defense in the United States. More than fifty years after the watershed decision in Gideon v. Wainwright declared the states must provide counsel to indigents accused of felonies, it is acknowledged that criminal defense systems fail to live up to the promise. The reality is grim. Funding is sorely lacking to provide even minimally adequate defense in most offices around the country. As celebrated Southern Poverty Law Center director Stephen Bright has observed, “[n]o constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” Defense lawyers, judges, scholars, bar leaders, and other thought leaders wring their hands about the state of Gideon fifty years after its
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.
Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence
2018
Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people. This is because the Court focuses nearly all of its attention on the small fraction of cases impl...
2021
On the final day of the 1982 Term, the United States Supreme Court issued its opinion in Michigan v. Long.' Although primarily a fourth amendment decision, 2 Long's true significance lies in its establishment of a new test for determining when a state decision rests on independent and adequate state grounds, thus precluding federal review. The Court held that when such a decision either appears to rest on or be "interwoven" with federal law, and when the independence or adequacy of a state ground is not clear from the opinion, the Court will presume that the federal grounds were primarily relied upon. 3 This new test undoubtedly will increase the number of prosecution appeals from state court criminal decisions that the Supreme Court will review. Consequently, it is important to ask why this Court, which has continually bemoaned its swollen docket, 4 would voluntarily seek to expand the number of cases available for its review. The most intriguing portion of the Long case was the dissent filed by Justice Stevens.? Repeating a theme he had sounded in previous opin
Panel on Prosecutorial Immunity: Deconstructing Connick v. Thompson
2012
The symposium included an in-depth analysis of Connick v. Thompson. As part of the symposium, the Journal organized a Panel, the transcript of which follows. This transcript consists of the speakers' remarks along with audience participation and questions. The Journal has attempted to preserve the character and substance of the discussion. While this is not a traditional article, the Journal felt that it would be fitting to include it in its spring volume. PROFESSOR DANE CIOLINo, LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW (MODERATOR): Okay. Let's get started. We'll get started with the 2:40 panel. We've done a number of speakers. This discussion is on prosecutorial misconduct. And given the amount of time we have, I'll cut short the introductions. The bios of the speakers are in your program. What I'd like to do is give each of the panel members 5 or 6 or 7, up to 10 minutes to talk. And then after everyone's basic thoughts, we'll have panel discussion. Let's start with Gary Clements,' do you mind going first? Gary, your thoughts on prosecutorial misconduct. GARY CLEMENTS: Part of me wants to respond to the prior speakers. It's a little unfair; they're not here to have a rebuttal to me. But I wanted to add some points. As a side line observer to Mr. Thompson's case, I worked in the office of the resource counsel to JT's case. 2 It's really interesting to hear prosecutors both in the newspapers and here today talk about the battle days. What happened to John Thompson was a terrible thing. You can't beat it. It was wrong. It was dirty it was horrible, illegal, blah blah blah. But they still hide stuff now. And the reason it's still something they have difficulty with. Next Tuesday, John Smith is one of our clients in the capital post-conviction office, 1. Gary Clements is director of the New Orleans Capital Post-Conviction Project. 2. Connick v. Thompson, 131 S. Ct. 1350 (2011).
2009
This is a review of George Thomas’s important and provocative new book, THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS. Thomas argues that protection of the innocent is the primary goal of the criminal justice system, and that the adversary system has proved poorly suited to advancing that goal. In addition, he argues that Warren Court reforms exacerbated the problem, creating a system in which procedural protections have become an end rather than a means toward achieving justice. He argues that our system would do well to adopt many aspects of the inquisitorial system, and particularly the French system. The review gives an overview of the book, and then explores two of its central arguments. First, to what extent are the root causes of wrongful convictions tied to the adversary system, or to the current U.S. version of the adversary system, and to what extent do they transcend national culture? Second, is Thomas correct that protecting t...
Of Laws and Men: An Essay On Justice Marshall's View of Criminal Procedure
1994
for their enormously helpful comments. I. In Holbrook v. Flynn, 475 U.S. 560 (1986), Justice Marshall wrote an opinion for an unanimous Court finding no inherent prejudice in the deployment of four uniformed state troopers in the spectator section of a Providence, Rhode Island, courtroom during a criminal trial. The troopers, Marshall wrote, were "unlikely to have been taken as a sign of anything other than a normal official concern for the safety and order of the proceedings." Id. at 571.