Adjunction Process Exam 2

Pro se

"on behalf of themselves", which basically means advocating on one's own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases.

The national center of state courts concluded that between public da's and private attorney's

1) Appointed counsel resolved the cases of their indigent defendants more expeditiously than did private retained counsel. 2) Appointed criminal defense counsel gained as many favorable outcomes (acquittals, charge reductions, and short prison sentences) for their indigent clients as privately retained attorneys did for their clients. 3) Appointed criminal defense counsel prosecuting attorneys were equally experienced.

Judicial Independence

A critical issue in judging the judges is how to devise a system for removing unfit judges while at the same time guaranteeing judicial independence. As times, critics attempt to remove a judge from office not because of his or misconduct but solely because of displeasure with the substance of judge's decisions. Protections against unpopular court rulings constitute the hall mark of an independent judiciary.

The advantages of the public defender include

A lawyer is paid to represent indigents on a continuous basis will devote more attention to cases than a court appointed attorney who receives only minimal compensation. Moreover, many members of the practicing bar like the idea that they no longer have to take time away from fee-paying cases to meet their professional obligations. A second advantage is often claimed for the public defender system is that it provides more experienced competent counsel. Because public defenders concentrate on criminal cases, they can keep abreast of changes in the law, and the day-to-day courtroom work keeps their trial skills sharp. The public defender is also likely to be more knowledge about informal norms and is therefore in a better positon to counsel defendants and negotiate the best possible deal. This system ensures constituency and consistency in the defense of the poor. Public defenders are usually able to provide early representation, entering the case at the initial appearance. Moreover, issues that transcend individual cases- criteria for pretrial release, police practices, and so forth- are more likely to be considered by a permanent, ongoing organization than under appointment systems.

6th amendment

Amendment which indicates right to a speedy and public trial

What is absolute immunity?

Complete freedom from civil liability- for everything they do with regard to the core prosecutorial functions of initiating criminal charges and pursuing criminal convictions as the governments advocate (Imbler v. Pachtman 1976). This immunity extends to all actions, even those motivated by ill will or bad faith, concerning filing or declining to file criminal charges, plea bargaining, and pre-sentencing arguments or evidence in court.For example, a defendants whose conviction is overturned on appeal and is later found guilty, cannot sue the prosecutor for malpractice. The appellate court reversal serves as sufficient remedy.

Merit Selection

Judges are chosen by a legislative committee based on each potential judge's past performance. Some states hold "retention elections" to determine if the judge should continue to serve.

Partisan Elections

Judges selected through partisan elections are voted in by the electorate, and often run as part of a political party's slate of candidates.

State Judicial Commissions

Judicial Conduct Commission was created as an arm of the state's highest court. The commission, made up of judges, lawyers, and prominent laypersons, investigates allegations of judicial misconduct and, when appropriate, hears testimony. If the commission finds in favor of judge, the investigation is closed and the matter is permanently concluded. If the problems are serious, continuous, or not immediately solvable, the commission usually seeks to force the judge's voluntary retirement. The larger the commissions budget, the more disciplinary actions take place.

Bailiff

Maintains order in the courtrooms; handles evidence.

How do defense attorney's define winning?

Many defense attorneys define winning in terms of securing probation, or accepting a plea to a misdemeanor charge. Given the situation, what is the best I can do for my client?

Public Defender

The 20th-century response to the problem of providing legal representation for the indigent. Public defender programs are public or private nonprofit organizations with full to part-time salaried staff who represent indigents in criminal cases in a jurisdiction.

Court Room Work Group

The best way to analyze the network of ongoing relationships among the courthouse actors.

Judges retain legal authority to make the major decisions such as setting bail and imposing sentence, but

They routinely follow the bail recommendations of the prosecutor and accept guilty-plea agreements reached by the defense and prosecution. If something later goes wrong, work-group members have protected themselves because everyone though it was a good idea at the time.

Plessy v. Ferguson

This 1896 U.S. Supreme Court case upheld the constitutionality of segregation under the "separate but equal" doctrine. It stemmed from an 1892 incident in which African-American train passenger Homer Plessy refused to sit in a Jim Crow car, breaking a Louisiana law.

Sheriff

Transports prisoners to and from jail.

Privileged Communication

Which the law protects from forced disclosure without the client's consent. The attorney-client privilege extends not only to statements made by the client, but also to any work product developed in representing the client.

Barker v. Wingo

While there is a right to a speedy trial, it is incumbent upon a defendant to assert that his right has been compromised should he not get one.

Through policy priorities

court officials try to devote more resources to prosecuting serious crimes, such as murder, rape, and armed robbery, rather than minor offenses. Other discretionary decisions reflect the decision makers' personal values and attitudes- their personal philosophies. Judges and prosecutors have varying views of what offenses are serious and deserving of a high priority.

The most visible variation between work groups concern

delay; some courthouses process cases in a timely fashion, others do not.

Pro bono

denoting work undertaken for the public good without charge, especially legal work for a client with a low income.

The police and prosecutors have

differing perspectives on the law. To the police, the case is closed when the suspect is arrested, but prosecutors stress they often need additional information to win in court.

Popular culture often portrays lawyers as

heroes who valiantly protect clients falsely accused or depicts attorneys as villains for going too far in defending the obviously guilty.

Judicial performance evaluations are an important tool for maintaining judicial accountability because they assist the public

in making informed decisions in retention elections. Most JPEs consist of questionnaires completed by an array of different respondents, including lawyers, jurors, fellow judges, court litigants, other members of the courtroom work group. JPE's are designed to gather data about a judge's impartially, knowledge of the law, legal abilities, clarity timelessness in making decisions, and oral and written communication skills. They also examine a judge's attentiveness, preparation, control over courtroom proceedings, temperament, and demeanor- especially with regard to whether the judge is courteous, respectful and fair.

Socialization

newcomers are taught not only the formal requirements of the job (how motions are filed and so on) but also informal rules on behavior. In other words, veteran members of the courtroom work group have to "break in" new members so that they understand the way things are done. Newcomers also learn from other members of the social network. Shared norms allow the members of the courtroom workgroup to routinely process what are known as "normal crimes."

At the core of legal ethics is

notion that every party is entitled to legal representation, even unpopular defendants who gave committed heinous crimes or defendants whose guilt is overwhelming.

Critics contend that public defenders as paid employees of that state will not

provide a vigorous defense because they are tied too closely to the courtroom work group.Not much of a difference between representation in assigned counsel and public defender.

In some markets, contract systems have failed to

reduce the costs of indigent defense, and may actually increase such costs, because there are too few attorneys to generate a competitive market.

The most common problem found in day to day practice involves

representation with two clients who have opposing interests. Lawyers who fail to properly represent their clients may be sued for civil damages. Lawyers carry legal malpractice insurance.

Judges, prosecutors, and defense attorneys are representatives from

separate, independent sponsoring institutions. However, they are drawn together by a common task: each must do something about a given case.

Miranda v. Arizona

the Supreme Court ruled that detained criminal suspects, prior to police questioning, must be informed of their constitutional right to an attorney and against self-incrimination. ... Miranda was not informed of his rights prior to the police interrogation.

Gideon v. Wainwright

the Supreme Court ruled that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses who cannot afford lawyers themselves. The case began with the 1961 arrest of Clarence Earl Gideon.

Who is the head of the department of justice?

the U.S Attorney General, who is a member of the president's cabinet. Top-level officials are presidential appointees who reflect the views of the administration on important policy issues. Day-to-day activities are carried out by a large cadre of career lawyers, who enjoy civil service protection and have, over the years, developed invaluable expertise in particular areas of law.

The department of justice represents

the U.S Government in all legal matters not specifically delegated to other agencies.

Powell v. Alabama

the United States Supreme Court reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama. The majority of the Court reasoned that the right to retain and be represented by a lawyer was fundamental to a fair trial and that at least in some circumstances, the trial judge must inform a defendant of this right. In addition, if the defendant cannot afford a lawyer, the court must appoint one sufficiently far in advance of trial to permit the lawyer to prepare adequately for the trial.

Faretta v. California

was a case in which the Supreme Court of the United States held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings.

Strickland v. Washington

was a decision by the Supreme Court of the United States that established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by that counsel's inadequate performance.

Terry v. Ohio

was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous.

Strengths of the Assembly Line Justice

Because of the large volume, overworked officials are often more interested in moving the steady stream of cases along in individually weighing each case on the scales of justice. Particularly in large cities, tremendous pressures exist to move cases and keep the docket current lest the backlog becomes worse and delays increase. In short, law on the books suggests a justice process with unlimited resources, whereas law in action stresses an administrative process geared toward disposing of a large volume of cases. Actors often specialize in specific tasks. In big-city public defender's office, for example, one assistant will conduct, another will represent him or her at the initial appearance, and still another will negotiate the plea. Another technique is group processing. During the initial appearance, felony defendants are often advised of their rights in one large group rather than individually.In the lower courts, sentences are often fixed on the basis of the defendant's membership in a given class rather than on detailed consideration of the individual case.

The executive Branch

Branch of government which includes office of prosecutor

Assistant District Attorney's

Hired immediately after graduation from law school or after a short time in private practice. These young attorneys attend local or regional law schools, rather than the nation's most prestigious law schools. New prosecutors gain valuable trial experience that new lawyers in law firms cannot. Most DA's serve an average of 3 to 6 years before leaving prosecution to enter private practice, politics, business, or another field. 35% of all prosecutors' offices nationwide report significant problems retaining assistant DA'S, with low salaries cited as the leading reason for high turnover. With its never ending stream of society's losers, the criminal courthouse can become a depressing pale to work. Some see being a DA as a permanent career

U.S v. Wade

was a case decided by the Supreme Court of the United States that held that a criminal defendant has a Sixth Amendment right to counsel at a lineup held after indictment.

Why don't people like the assigned counsel system?

- Critics contend that the assigned counsel system results in the least qualified lawyers being appointed to defend indigents. The only attorneys that volunteer are either young ones seeking courtroom experience or those who seek numerous appointments to make a living. No guarantee exists that the lawyer is qualified to handle the increasing complexity of the criminal law; the appointee may be a skilled real estate attorney or a good probate attorney, but these skills are not readily transferable to the dynamics of a criminal trial. Most commonly, lawyers are compensated for such defense work on the basis of separate hourly rates for out of court and in court work. However, hourly fees for in court felony work usually range far below the fees charged in private practice. No state compensates assigned counsel near anything approximating the federal rate of $125 per hour. Critics also contend that inadequate compensation pressures attorneys to dispose of such cases quickly in order to devote time to fee-paying clients. Overall, professional role expectation of lawyers may have greater influence on their work than financial considerations.

Characteristics of the American judge consist of

- Judges are men from the upper-middle class, and their backgrounds reflect the attributes of that class. They are more often white and protestant, and they are better educated than the average American. Increasingly though, Judges are beginning to resemble the American electorate. Judicial officers on state high courts of last resort, for example, are increasingly women and less likely to be high-status protestants. Most were born in the community in which they serve. Trial court judges are usually appointed from particular districts; the persons appointed were often born in that area and attended local or state colleges before going on to a law school within the state. Judges are seldom newcomers to political life. Almost three out of four state high court judges have held a non-judicial political office.

What are indigents?

Are defendants who cannot afford to pay a lawyer and, therefore, are entitled to a lawyer for free. Three quarters of state prison inmates had court-appointed lawyers to represent them for the offense for which they were serving time. In urban courthouses, the indecency rate is about 82%.

Shared Decision Making

Diffuses responsibility. Judges, prosecutors, defense attorneys, and others are aware that the decisions they make could turn out to be wrong. Such dire results cannot be predicted, the members of the courtroom work group share a sense of that when one of their members looks bad, they all look bad. If something later goes wrong, work-group members have protected themselves because everyone though it was a good idea at the time. The hallmark of work groups is regularity of behavior. This regularity is the product of shared norms about how each member should behave and what decisions are desirable. The greater the certainty, the less time and resources they need to spend on each case.

Weakness of Assembly Line

Excessive Caseloads are a modern problem and- Most cases, therefore, end with a plea of guilty (rather than a trial), not because the courthouse has too many cases, but because the courts are confronted with a steady stream of routine cases in which the only major questions is the sentence to be imposed. Criminal court process cannot be understood solely on the basis of excessive caseloads, because such an explanation omits too many important considerations- most especially organizationally relationships and local legal culture.

What limits on discretion do prosecutors have during trial?

In context of the adversary system, the prosecutor is excepted to advocate the guilt of the defendant vigorously. But the prosecutor is also a lawyer, and is therefore an officer of the court; that is, he or she has a duty to see that justice is done. In recent years, the Supreme Court has expressed repeated concern about prosecutorial misconduct. Convictions have been reversed because prosecutors were too zealous in their advocacy. But at the same time, the nation's highest tribunal has also decided that prosecutors enjoy absolute immunity from civil lawsuits when acting as courtroom advocate. However, under other conditions, prosecutors may be sued civilly.

Contract System

Involve biding by private attorneys to represent all criminal defendants found indigent during the time of the contract, in return for a fixed payment.

Assigned Counsel

Involve the appointment by the court of private attorneys on an as-needed basis. The list may consist of all practicing attorneys in the jurisdiction or, more commonly, the attorneys who volunteer. Typically reflects the way professions such as law and medicine respond to charity cases: Individual practitioners provide services on a case-by-case basis.

Judicia Misconduct is

Systems for removing or disciplining unfit judges must not only strike a balance between judicial accountability and judicial independence, but they must also grapple with the wide range of misbehavior.Taking bribes and fixing traffic tickets. Sometimes it involves improper or bizarre behavior on the bench.

Non-Partisan Elections:

Potential judges that run for a judicial position in states with non-partisan elections put their names on the ballot, but do not list their party affiliates. Terms for judges in non-partisan elections can range between 6 and 10 years.

U.S Attorneys and Their Assistants

Prosecute the vast majority of criminal cases in federal courts. Enjoy great autonomy in actions.

Criminal Division

Prosecutes a few nationally significant criminal cases Exercises nominal supervision over U.S Attorneys

Prosecutors are more likely to stress problem-oriented approaches because

Prosecutors have the responsibility not only to prosecute cases but also reduce crime. The most effective results are obtained within small, manageable geographic areas, which often means working out of neighborhood offices. Change is more likely to occur through cooperative efforts or partnerships rather than through prosecutorial dictates. In many instances, community stakeholders help set the crime-fighting agenda.

Clerk of Court

Record keeper, often responsible for summoning potential jurors to participate in the jury-selection process.

Solicitor General

Represents in the U.S government before the U.S Supreme Court in all appeals of federal criminal cases. Often appears as amicus in appeals involving state criminal convictions

Bail Bondsman

Secures pretrial release of defendants for a fee.

Qualified Immunity

Shields prosecutors from civil liability for acts beyond those associated with courtroom advocacy but still within the scope of their professional duties (such as when advising the police or speaking to the media.) This only applies if prosecutors are acting in good faith that they are not violating any law or ethical rule of which a reasonable person in his or her positon would be aware.

Diversity in the courtroom

The dominant profile of judges as white males has begun to change. Since the presidency of President Carter, in increasing number of federal court vacancies have been filled with female judges, a pattern evident during the Republican and Democratic administrations. 18% of Clinton' nominations to the federal bench were women. Obama demonstrated his commitment to judicial diversity early in his presidency by nominating the first Latina to the U.S Supreme Court, Sonia Sotomayor. Later he nominated Elena Kagan, bringing the number of women on the nation's highest court to three. ¾ of Obama's nominees have been women or minorities. At least 12 federal judges are openly gay, 11 of whom were appointed by Obama. Today, the National Association of Women Judges reports that 29% of women are state court justices. Speculation by some has suggested that female judges are likely to be more liberal than male jurists. But other studies find no gender differences among justices. The voting rights act of 1965, as amended in 1982, applies to judicial elections.

Normal Crimes

The legal actors categorize crimes on the basis of the typical manner in which they are committed, the typical social characteristics of the defendants, and the types of victims. Once a case has been placed into one of these categories, it is usually disposed of on the basis of a set pattern. These crimes represent a group sense of justice.

Assembly Line Justice

The operation of any segment of the criminal justice system with such speed and impersonality that defendants are treated as objects to be processed rather than as individuals.

Appointment

The state's governor or legislature will choose their judges.

How due Da's help their clients?

Zealously representing the clients' interests within the bounds of law; Abiding by a client's decisions concerning the objectives of representation;Avoiding providing any counsel that would encourage or assist a client, in conduct that the lawyers knows is criminal or fraudulent (although lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope meaning, or application of the law); Acting with reasonable diligence and promptness in representing a client. Keeping the client reasonably informed about the status of his or her case . Maintaining client confidentiality. Avoiding conflicts of interest

Argersinger v. Hamlin

a United States Supreme Court decision holding that the accused cannot be subjected to actual imprisonment unless provided with counsel. The Court held that a criminal defendant may not be actually imprisoned unless provided with counsel.

Padillia v. Kentucky

a case in which the United States Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea.

Some judges do not fulfill minimal standards because

a few are senile, prejudiced, vindictive, tyrannical, lazy or sometimes corrupt.

Community Prosecution stresses

a proactive approach rather than reacting to crime through prosecution, these programs stress crime prevention. And often the crimes stressed are minor ones that are nonetheless serious irritants to local residents.

Based on the 6th amendment

amendment's provision of right of counsel, indigent defendants charged with a felony are entitled to the services of a lawyer paid for by the government. Later, the 6th amendment right to counsel was extended to juvenile court proceedings, as well. In the wake of the Gideon decision, the court wrestled with issues involving the right to counsel with regard to: (1) nonfelony criminal prosecutions, (2) stages of the criminal process, (3) ineffective assistance of counsel, and (4) self-representation.

Rewards (carrots)

are available as benefits to those who follow rules. For example, defense attorneys who do not unnecessarily disrupt routines are able to negotiate a sentence that is slightly less severe than normal. By far, the most effective approach is the carrot because it operates indirectly and is less disruptive.

The American prosecutor has

broad discretion. The prosecutor may commence public prosecutions and may discontinue them when, in his judgment the ends of justice are satisfied. Appellate courts have allowed the modern prosecuting attorney to exercise virtually unfettered discretion relating to initiating, conducting, and terminating prosecutions. Even though the law on the books vests prosecutors with almost unlimited discretion with regard to charging decisions, the reality of law in action is that prosecutors are not insulated to pressure from politicians, the media, and the public at large.

The domain of the prosecutor is

charging. It has been expanding throughout the past century, and pressures to place greater authority in the hands of the prosecutor are likely to continue. The prosecutor is uniquely able to capitalize on his or her role as the community's chief law enforcement official and to promise the voters to expand crime fighting efforts.

The types of defendants and natures of crimes they are accused of remain

constant. (Only the names of victims and defendants are different.)

The downsides of discretion include

invites the potential for abusing it. For example, police may "solicit or accept bribes in exchange for failure to either report consensual crimes or make arrests in such cases, and in the falsification of evidence to make arrests and secure convictions of suspects." However, most of the time, justice actors do not exercise their discretion in a corrupt manner. Legal factors such as the nature of the criminal offense and the defendant's criminal history, are the most salient determinants of criminal sentences. Race, ethnicity, gender, age, sexual orientation, socio-economic status, and similar personal characteristics of both defendants and victim produce disparities in both the like hood and type of incarceration, as well as sentence length.

A major responsibility that lawyers due

is "owing the court", including prosecutors and criminal defense attorneys, is refraining from making any out of court statements that an attorney knows or reasonably should know will be disseminated to the public and would have a substantial like hood of prejudicing any judicial proceeding.

Discretion

lies at the heart of the criminal justice process. From the time a crime is committed until after a sentence is imposed, exercised every time key decisions are made. The authority to make decisions without reference to specific rules or facts. For example, the prosecutors decide whether to file criminal charges or a judges choose between prison or probation.

Duty of Candor to the Tribunal

the most important responsibility that all lawyers from knowingly making false statements to the court, failing to disclose adverse legal precedents, obstructing access to or tampering with witnesses or evidence, making frivolous discovery requests, and offering any evidence known to be false- including perjuriously or misleading testimony.

Problems between the police and prosecutor include

the names and addresses of victims/witnesses were lacking, full details of how the crime was committed were missing, and vital laboratory reports were not forwarded on time.

Ad hoc appointment system

the oldest and still the most common method, "the court appoints attorneys at random, with a minimum of consideration for the qualifications of the attorney or equitable distribution of cases among members of the private bar.

Virtually all criminal courts studied to date exemplify

the patterns that were just discussed of how courtroom work groups operate that were just discussed, but some important variations need to be considered. For example, the stability of the work group varies- low turnover in some courts promotes stability in the work group, while high turnover in others produces ongoing disruptions of the relationships in the courthouse.

What strategies were implemented to improve the relationship between the prosecutor and police?

the prosecutor has funded a computer messaging system that enables attorneys in the office to transmit notes, case dispositions, and subpoenas directly to police officers at their work locations.

Defendants who wish to self-represent themselves must show

the trial judge that they have the ability to conduct the trial. The defendant need not have skills and experience of a lawyer, and the judge may not deny self-representation simply because the defendant does not have expert knowledge of criminal law and procedure (Faretta v. California).

The conventional wisdom of self representation is that

there is not good reason for a defendant to choose self-representation. Pro se defendants fare as well as represented defendants 80% of the time, and most do not suffer from mental illness.

What is primary advantage of the contract system?

they limit the costs of government must pay for indigent defense. Critics counter that these programs will inevitability lead to a lower standard of representation through the bidding system, which emphasizes cost over quality. The second is that the private bar will no longer play an important role in indigent defense.

Re write

• Trend of appellate courts' decision for ineffective assistance of counsel. (pg.185-186)