criminal justice exam 2

a Brady violation

A prosecutors concealment of evidence.

public defender

A salaried public office representing all indigent defendants Work hard in law school People want to be public defenders Represents 70 percent of all indigents Advantages Lawyers paid to represents indigents on ongoing basis will devote more time and effort More experience lawyers- both in criminal law and workgroup norms Continuity in defense of poor... being there for initial appearances, hearings, etc. Also, indigent defenders see commonalities across many cases that individual attorneys may not see A good attorney knows the law, a great attorney knows the judge

generalizability

A single case means all are going to be like this Case of philadelphia... sentences are harsher and therefore, outweigh "process punishments" lawyers do not consider or advise on pretrial costs

criminal defense attorneys are the lowest of the low because

they are representing individuals

key themes in TPP

"Open system" approach to courts Substantive rather than procedural justice The "process is the punishment" - importance of pretrial costs

diversion in pretrial model in practice

-Actually increases overall punishment level by increasing pretrial control -Defendants face less extensive/shorter sentences (even the minimum sentence) if just plead guilty

three types of indigent defense systems

1. assigned counsel 2. contract system 3. public defender- largest

two central challenges

1. defendant 2. system

Pretrial punishment model causes several shifts

1. from punishment after adjudication to punishment pretrial punishment 2. from judges sanctioning to prosecutors/police being responsible for meting out sanction 3. bondmen and defense attorneys participating in sanctioning (not advocacy) by affect how long someone is detained and how long the process will proceed

pretrial model in practice

Actually increases overall punishment level by increasing pretrial control Defendants face less extensive/shorter sentences (even the minimum sentence) if just plead guilty

assigned counsel

Attorneys appointed by judge on case by case bias From a list of available attorneys Used in 50 percent of US but serves less than a third of people Critiques Matching least qualified attorneys with indigents Assign from general bar without criminal expertise

contract system

Attorneys hired to provide services for a specified dollar amount Least prevalent of the systems Contract system involves bidding by private attorneys to represent all criminal defendants found indigent during term of contract. In return for fixed payment Benefits to government: caps costs on defende Critiques Contracts lead to lower representations Bidding emphasizes cost over equality Disengaging private bar Contract system unconstitutional in Arizona Assigned defense representation to lowest bidder, violated Fifth and Sixth Amendment Does not see difference between complex cases

court watching as accountability

Court watching offers the possibility of a deterrence-based program that incorporates the public as part of accountability for our criminal courts and the criminal justice system. would professionals act a different way with observers in there

trial or treatment advocacy

Criminal defense attorneys identify two distinct types of advocacy in a criminal defense Zealous trial advocacy Zealous treatment advocacy trial - addresses legal needs of the client Treatment - addresses the rehabilitative needs of the clients and the social challenges the client faces

strategies of court watching

Evaluate the level of professionalism in the courtroom Focus on management, temperament Evaluate nature and quality of justice Responsiveness and respect National Center for State Courts (NCSC) trial court standards Standards appeal to the appearance of justice

Gideon v. Wainwright (1963)

Gideon charged with felony at his first trial he requested a court appointed attorney and was denied Supreme Court ruled that states are required under sixth amendment of the US Constitution to provide an attorney to defendants in criminal cases who unable to afford their own attorneys

pretrial model in theory

Have power to help reduce formal punishment by diverting offenders away from guilty pleas/findings

prosecutes are not as low as we think based on

Heinz and Laumann

questions and concerns of court watching

How do you focus court watchers on a common metric evaluation? How do we know justice when we see it? How do you define professional standards for courtroom actors? How do you measure violations of standards when you see it? Inter-rater reliability: making sure that regardless who you are, you will see the same system going

Discretion in defending: Zealous Advocacy

Lawyers are expected to be advocates for their clients- arguing for legal innocence A lawyer is supposed to act "with zeal against advocacy upon the clients behalf" Professional rules governing lawyers neither elaborate on the specifics of zealous representation (Uphoff and Wood 1998) nor acknowledge the social context that impacts advocacy Zealous advocacy is not a fixed standard It is informal and discretionary decisions that define the formal legal processes

public defender advantages

Lawyers paid to represent indigents on ongoing basis will devote more time and effort Not competing against fee paying clients More experience lawyers - both in criminal law and workgroup norms Continuity in defense of poor- being there for initial appearances, hearings etc Indigent defenders see commonalities across many cases that individual attorneys may not see

private attorney vs public defender

Merits of public defender : little different between public versus private defenders National center for state courts research found Indigent defenders resolve cases more faster than private Indigent defenders (public) gained as many favorable outcomes as private attorneys Both are equally experienced but not as equally resourced

defendants through the eyes of researchers- feeley

Morally loaded descriptions of defendants "Lacking self-esteem motivation"- mope, indigent- used these in his book Blaming the defendant for the quality of their defense- their fault they did not get a good defense (interviewed professionals- did not delve deep enough) Pleading guilty is a moral failure, and it assumes that no one in the stream of cases can be innocent Neighborhood study- division with street that gave one side more money (side with less money had more crime) Malcolm saw these studies and chose to not use them to use them in the way Van Cleve does In contrast, professionals are "ethnographically" well-crafted and portrayed If you are going to animate the professionals, you have to animate the defendants Defendants are hardly seen as partners

limits to pro se

Must show ability to conduct a trial Judge cannot deny self representation because someone does not have "expert" knowledge Judge can appoint standby counsel Excludes mentally-ill defendants even if competent to stand trial

zealous advocacy is a social process

Shaped by the social attributes and needs of their clients (mental fitness, parental status, IQ)

stages of criminal process

Sixth amendment- right to counsel in "all criminal prosecutions" - not just a trial Supreme court adopted a "critical stages" test where "substantial rights of accused may be affected" (mempa v rhay) Right to counsel once adversarial proceedings have begun Pretrial is more limited : defendants have right to attorney during custodial interrogations (miranda v. Arizona)

plea bargain model

Substantive justice is offered through cooperative efforts of prosecutor and defense, instead of through due process model of justice through fair procedure and fact finding Theme: procedural protections are only one idea of justice and one route toward substantive justice Procedure- trial, substantive- outcome

substantive vs procedural justice

Substantive justice is separate and achievable even when procedural protections are not in full use Is speed and efficiency just for defendants Your outcome is okay despite not having a trial, no jury- on average you did ok

challenges to ethics

Such challenges - contextualize the ethical context of decision making by defense attorneys Client- based concerns help guide attorneys to type of advocacy to provide to client- whether treatment or trial advocacy Zealous advocacy - interpretive process contingent on extra-legal or legal needs of defendant and the social terrain of the criminal justice system Social needs help determine what the client needs

Miranda v. Arizona (1966)

Supreme Court case that said you must be read your rights when arrested Ernesto miranda was not read legal rights prior to confessing to kidnapping and rape and was then released because no evidence besides his conviction

Brady v Maryland (1963)

Supreme Court rules prosecutors must turn over to the defense any evidence that would tend to prove a defendants innocence. failure to do so is a violation of the defendant's constitutional rights

Brady v maryland (1963)

Supreme court rules prosecutors must turn over to defense any evidence that would tend to prove a defendant's innocence. Failure is a violation to defendants rights If you do not turn over evidence, it is called a "Brady violation" Discovery materials- police reports, pictures, blood

Malcolm feely background and context

TPP describes taking process that lower criminal courts toward adjudication Due process revolution was a time where supreme court extending protections to defendants - right to counsel and right to trial - he found that large number of defendants were Without attorneys none chose to have a jury trial Empirical puzzle : despite expansion rights, they are not being enforced

pretrial punishment model

The "title track" to his book Causing several shifts From punishment after adjudication to punishment pretrial punishment From judges sanctioning to police/prosecutors being responsible for meeting out sanction Bondmen and defense attorneys participating in sanctioning by affect how long someone is detained and how long the process will proceed The law on the books would say that punishment happens after trial Law in action- punishment happens before trial that sometimes doesn't happen There procedural, substantive justice, and the process is the experience of the procedural justice

defendants' voices

The process is the punishment refers to defendants but we do not hear their account Tension between the negative light in which they are portrayed

Connick (prosecutor) v Thompson (defendant)

Thompson spent 18 years in prison- 14 of them isolated on death row- watched seven executions that were planned for him Prosecutors did not turn over evidence that would have cleared for him Convicted of First degree murder Individual who was murdered was rich Is amping up convictions of a crime part of berger case? Blood found on pants did not match with thompsons blood- carjacker type B he was type O Prosecutor admits before she dies that she hid the evidence on the case Saw thompson for carjacking- used as part as death penalty Connick was district attorney's office concealed 9 of 36 exculpatory (evidence that can free you) evidence death penalty convictions Connick and his prosecutors have never been held accountable Won 14 million for this civil rights violation, one for every year spent wrongfully incarcerated (never got that money) Clarence thomas was the overriding factor of deciding that thompson should not get money Supreme court never ruled if thompson was guilty of innocent Prosecutors got enough training at law school

the right to counsel

sixth amendments is the provision of right to counsel, indigent defendants charged with felony entitled to service of lawyer paid by state

safeguards of court watching

create common metric of standards develop research instruments train court watchers procedure

American criminal courts should be seen as

accessible, authoritative, rational, and unbiased

pretrial

anything before due process

color-blind racism

not acknowledging that racial bias can exist or exists at all

color blind racism

not acknowledging that racial biased can't exist at all

Gideon v wainwright (1963)

the states had to provide you with an attorney if you were indigent (poor)

bail set by police

not by meaningful independent review - means that police just have to accuse you and bail will be put, no one has to review your bail Twice as many defendants detained prior to adjudication as would ultimately be sentenced to jail

defendant challenges

based challenges fueled by addiction, poverty and/or mental illness, and

system challenges

based challenges that compromise the quality and character of justice - death penalty becoming illegal in a state (would it change how you did trial) System-based challenges include limitations in treatment resources and cultural norms that stigmatize zealous advocacy within the courtroom workgroup Man who was addicted to drugs and killed old people who were playing cards Pleaded guilty but public defender said he was in a haze and should be life in prison not death

after 9/11 we try defenders on home grounds or international courts

berger case says that it would not give a fair trial

law in the books case

berger v united states

how does the subtle kind of racism become the overt?

breaking code, exposing, same thing just one is hidden

discovery materials

police report, crime scene photos, bloody jeans (Thompson case)

case study example

poor bus boy gets in fight with wealthy frat student Wealthier student gets trial no matter if he's guilty or not Poor bus boy has to plead guilty no matter Both rely on how much money resources can pay for

indigent

poor/needy

institutionalized

practices incorporated in an institution

institutionalized

practices incorporated into the institution

exculpatory evidence

evidence that can free you

death penalty cases- "death is different"

means if you're going to go and sentence someone to death there is no appeal once they are dead, if that is the verdict the proof to convict needs to be bulletproof

criminal cases as "unsavory" law

the worst human complexities

death penalty cases "death is different"

means if you're going to go and sentence someone to death there is no appeal once they are dead, if that is the verdict the proof to convict needs to be bulletproof, no flakey evidence

station adjustment

clean record, watch you for 24 months, if you do something within that time you are in trouble

court watching is rooted in a

consumer perspective of justice

court watching prioritizes

measuring the system and its legitimacy through the eyes of its consumers and it should look good everyday for the consumers

non felony criminal prosecutions

misdemeanor charged in misdemeanor charges

the Supreme Court does not mandate how much

money or what types of attorneys should be your defender

legal immunity

prosecutors have a great deal of legal immunity can only sue prosecutor in narrowest of circumstances If conviction is overturned, prosecutor cannot be held for mispractice Being freed is your remedy

prosecutors

most powerful actors in the CJS more control over life, liberty, and reputation than anyone broad discretion part of the executive branch independence from judiciary may challenge judicial decision advocate for people's guilt discretion is curbed by their role as a lawyer and officer prosecutor has duty to see that justice shall be done in the middle of the fragmented non system

prosecutor has duty to see that justice shall be done

must prosecute in a way where rights of defendant are respected and protected berger v United States

pro se

defend yourself Waiting for defense attorney means you would be waiting in jail longer Not enough defense attorneys in your system Nothing to lose You think the system is stacked against you

successful persecution

defendant found guilty, or jury/bench sins- then you can be promoted as a prosecutor - law in action

qualification to Gideon

defendants have the right to defend themselves... the right to proceed pro se

indigents

defendants who are too poor to pay a lawyer and therefore are entitled to a lawyer for free

defense want

discretion used for deals- better deal for their clients

police want

discretion used for tough penalties- I brought in this case, evidence

diversion in pretrial model

diversion, deferred prosecution, conversion If you do these certain things than we will be more lenient, if you get caught you are screwed

American bar association (ABA)

duty is to seek justice not just convict ethical issues are different for prosecutors then defense because they are not just representing an individual SA may feel as though they represent victims or police but through client is the state Get great deal of special responsibilities State attorney= prosecutor

court watching procedure

dynamic and responsive to changes over time multilevel modeling

training court watchers

endure consistency of observation educate court watchers on the norms

open system model

environment influences shape court and impact courthouse workgroup Balance between individual and collective interest, constraints and goals of sponsoring organization, and influence of environment

Connick v Thompson

evidence case Thompson spent 18 years in prison, 14 in isolation on death row prosecutors did not overturn evidence that would have cleared him they were granted almost complete immunity for their misconduct Connick was DA and didn't train prosecutors properly Thompson was retried on all cases and found not guilty sued Connick for failing won 14$ million

juvenile system

first that adults in terms of representation, in order to get your child out of lock up you may have to forfeit rights to attorney

the sixth amendment

guarantees the right to a speedy public trial by an impartial jury; the right to a lawyer; the right to cross examine witnesses; and the right to force witnesses at a trial to testify.

diversion in pretrial model in theory

have power to help reduce formal punishment by diverting offenders away from guilty pleas/findings

police and prosecutors

have the most power

berger v united states

narrows discretion- less power to prosecutor 1935

lower courts

no jury trials, only-one-third who faces jail time had counsel bail set by police Defendant waited weeks or months for only "moments" ... play "bit parts" not starring role in their own case Sentencing guidelines are very prescriptive Sentencing unrelated to seriousness of the charge, prior record or other expected predictors Simple cases taking 8 to 10 appearances while complex cases avoid lengthy engagements through plea bargaining - more time for simple cases Lower court officials acting more like social workers than lawyers Plea bargaining is the most effective Substantive- outcome or sentencing

cost

holistically - everything you lose-- money, freedom, suffering, family, work, reputation

multilevel modeling

houts tallied in every courtroom; more court watchers sent to court if an "event" occurred- all saw the same thing

Supreme Court mandates indigent-defense systems but does not specify

how system should be enacted and how to fund it never said how the indigent defense system should look

how does subtle types of racism become overt

it is the same thing just different forms

In re Gault (1967)

juveniles have the right to counsel, to confront and examine accusers, and to have adequate notice of charges when confinement is a possible punishment

broad discretion

large/powerful = control

Berger v. United States (1935)

limitations on prosecutors abused power so limited power to persecutor less power to prosecutor tried to take discretion from prosecutors prosecution is not that it shall win a case, but that justice shall be done duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one about justice not about winning successful persecution

Argersinger v. Hamlin (1972)

limited the right of non felony defendants to have court-appointed counsel

mope

low grade offender but punished the most, attorneys can be mopes too for fighting for clients

legal immunity

prosecutors have a great deal of legal immunity you can only sue prosecutors in the narrowest of circumstances ex. if conviction is overturned on appeal, cannot sue prosecutor for "malpractice" appellate court several is sufficient remedy

what comes first punishment or adjudication

punishment

Charlottesville rally

racism is harsher in the system because its set in stone but in Virginia it was easy to point out because it was seen individual

duke lacrosse case

stripper at party stripper accused many of the players for raping her

reforming indigent defense must start with a lens that

that focuses on the entire courtroom workgroup of legal professionals who create the quality and experience of justice for the mostly minority and impoverished offenders

Pro Se Defendant

the deviant defendant who disregards professional authority and expertise reject representation and are defiant threatened by judges often evaluated for mental fitness - protection turned into weapon because lengthens detainment defende attorney must initiate such requests making them the "bad guy"

defense attorneys

the right to counsel

prosecutors represent

the state

judges want

to clear cases

monster

violent offender, viewed as heroic, prosecutors think their trial is worthy of their time because of the nature of violence, minority of defendant population but viewed as differently

due process revolution

was all the Supreme Court decisions like gideon or miranda that gave new rights to defendants

court watching as evaluation

we can evaluate the level of professionalism in the courtroom we can appraise the nature and quality of justice in each courtroom

people v Wabash, st. louis and pacific railway

widens discretion more power to prosecute put power directly in the hands of the prosecutor broadening of power and discretion more discretion

people v wabash

widens discretion- more power to prosecutor

pro se is the smarter choice because

you have nothing to lose