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Darryl K Brown - One of the best experts on this subject based on the ideXlab platform.
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executive branch regulation of criminal Defense Counsel and the private contract limit on prosecutor bargaining
Depaul Law Review, 2014Co-Authors: Darryl K BrownAbstract:Criminal defendants' right to Counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of Defense Counsel, especially privately retained Counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken Defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors' power to veto defendants' choices to share attorneys with other suspects. The organizing concern for regulation of Counsel is not simply fairness, but also accuracy and a less noted goal - effectiveness of criminal law enforcement. Defense Counsel is best understood not solely in light of defendant's interests but also of systemic ones. That gives the executive branch a stronger claim to competence in regulating Counsel. But regulation works best when the regulator is institutionally well suited to the task, and one feature that makes an actor well suited is supervision or some other check by another actor. By those criteria, much executive-branch regulation of Defense Counsel is acceptable, because prosecutors either need the consent of Congress or the judiciary, or - in the case of privilege waivers - must face well-funded Counsel in negotiation. But bargaining to end attorneys' fee payments to some defendants is different. That policy gives prosecutors power unchecked by legislatures and courts or even the capable opposition of a well-funded opponent. The Supreme Court has left little doctrinal basis for restricting prosecutors' bargaining incentives for defendant cooperation. Yet this essay explains how firms themselves, through private contract, can take much of the sting out of prosecutors' abilities to demand nonpayment of attorneys' fees. Further, as they do so, courts are likely to be receptive to a narrow constitutional doctrine that leaves current plea bargaining law in place but still bars prosecutorial incentives for firms to breach duties to pay fees. Courts and defendants can work within Supreme Court doctrine to limit prosecutors by grounding those limits in the protection of contract obligations as much as the right to Counsel.
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Defense Counsel trial judges and evidence protocols
Social Science Research Network, 2012Co-Authors: Darryl K BrownAbstract:This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials - notably judges, whose judgments depend on that process - should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.
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the decline of Defense Counsel and the rise of accuracy in criminal adjudication
2005Co-Authors: Darryl K BrownAbstract:With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but regulates investigation with a light hand. In theory, because adjudication checks investigation, weak investigative regulation should not endanger accuracy. Yet adjudication - which occurs through plea bargaining much more often than trials - is an inadequate guarantor of accuracy for many reasons, one of which is the systemic weakening of the adversarial process due to legislative under-funding of indigent Defense. However, recent innovations improving fact-finding in criminal adjudication - most prominently DNA analysis - have made accuracy a higher priority by making errors more difficult to conceal. As a result, we now see early signs of a new model for criminal justice, a system that depends less on adversarial process and more on practices akin to those found in administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of Defense attorneys - scrutinizing the reliability of state evidence and presenting evidence the state ignored - can, in significant ways, be supplanted by other mechanisms, many of which are more politically sustainable than increased funding for indigent Defense. New investigation-stage practices have begun to take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement ineffectual Defense Counsel in aiding accuracy, and these practices have some advantages over adversarial lawyering. As a result, adjudication is becoming a relatively less important procedural stage for truth-finding as investigation becomes more so; adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial.
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the decline of Defense Counsel and the rise of accuracy in criminal adjudication
California Law Review, 2005Co-Authors: Darryl K BrownAbstract:With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but regulates investigation with a light hand. In theory, because adjudication checks investigation, weak investigative regulation should not endanger accuracy. Yet adjudication—which occurs through plea bargaining much more often than trials—is an inadequate guarantor of accuracy for many reasons, one of which is the systemic weakening of the adversarial process achieved due to legislative underfunding of indigent Defense. However, recent innovations improving fact-finding in criminal adjudication—most prominently DNA analysis— have made accuracy a higher priority by making errors more difficult to conceal. As a result, we now see early signs of a new model for criminal justice: a system that depends less on adversarial process and more on practices akin to those found in administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of Defense attorneys— scrutinizing the reliability of state evidence and presenting evidence the state ignored—can, in significant ways, be supplanted by other mechanisms, many of which are more politically sustainable than increased funding for indigent Defense. New investigation-stage practices have begun to take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement ineffectual Defense Counsel in aiding accuracy, and these practices have some advantages over adversarial lawyering. As a result, adjudication is becoming a relatively less important procedural stage for truth-finding as investigation becomes more so; adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial. †Class of 1958 Alumni Professor of Law, Washington & Lee University School of Law. I am grateful to workshop participants at Fordham University, University of Arizona, and University of Virginia law schools who provided helpful feedback on earlier versions of this work. I am especially grateful to Dan Richman, Bill Stuntz, Anne Coughlin, and Mike Klarman, who provided valuable comments after generously reading earlier drafts. The Lewis Law Center at Washington & Lee University School of Law provided financial support for this project. Most of this paper was written while I visited on the law faculty at University of Virginia, where many colleagues and Dean Jeffries were especially supportive. 2 CALIFORNIA LAW REVIEW [Vol. V:P INTRODUCTION Adjudication systems vary in how they balance commitments to multiple, competing purposes. Accurate fact-finding is only one goal; dispute resolution is another, and in American criminal justice, constraint of government power is a third. Those purposes sometimes conflict.1 One recognized feature of adversarial adjudication is that it gives higher priority to dispute resolution and party participation than inquisitorial systems, which are less willing to trade off accuracy for party control of adjudication practice.2 Even if government-dominated inquisition seemed likely to provide better truth determination, we would be reluctant to employ it. To put our particular mix of systemic priorities into action, American criminal procedure has chosen a distinctive approach. Broadly speaking, governments have two ways to regulate behavior: obligatory commands (or rules) and creation of incentives.3 With respect to accuracy 1Abram Chayes described the “traditional model” of adversarial adjudication as “relatively relaxed about the accuracy of its factfinding.” See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1287-88, 1297 (1976). For a recent account of procedure’s competing goals, see Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181 (2004) (arguing that accuracy is not the overriding goal of procedural fairness, and advocating for the importance of party participation). For a more critical account, see WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH (1999). 2See generally MIRJAN R. DAMAŜKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 101-25 (1986) (describing adjudication systems that prioritize conflict resolution). For a classic mocking but insightful description of the adversarial process, see Thurmond W. Arnold, Trial by Combat and the New Deal, 47 HARV. L. REV. 913, 918-22 (1934). 3Cf. Edward L. Rubin, Images of Organizations and Consequences of Regulation, 6 THEORETICAL INQUIRIES IN LAW 347 (2005) (describing options for governmental action as choices between commands and incentive creation). YEAR] Accuracy in Criminal Adjudication 3 and reliability goals, we govern adjudication with detailed constitutional and statutory commands, but we govern investigation through incentives. Police searches and suspect interrogations are extensively regulated by constitutional rules with respect to other goals, such as protecting citizen privacy, but largely are not regulated for the purpose of making evidence more reliable.4 (In fact, search and interrogation rules may create incentives for investigators to seek less reliable forms of evidence that are governed by fewer rules and thus easier to obtain, such as jailhouse informants.) In our adversarial system, the reliability and thoroughness of investigation—meaning not just police activity but all efforts, by both sides, to generate an accurate factual account of relevant events—is governed indirectly by the incentives arising from highly regulated trial adjudication. We lightly govern investigation’s reliability, leaving it in the control of parties, largely because we rigorously structure adjudication. Strong regulation of adjudication permits weak rule-based investigative regulation5 because, as the Supreme Court repeatedly implies in its criminal procedure decisions, we believe that adjudication checks investigation.6 4Rules against coercive interrogation are a possible exception. One rationale for such rules is that statements produced by torture or coercion are unreliable. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936). 5Rule-based investigative regulation is weak in two senses: weakly (or lightly) regulated, and weak in its ability to produce accurate factual accounts without the support of adjudication practice. 6Especially in right-to-Counsel cases, the Court has repeatedly stressed the importance of defendants forcing the “prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Chronic, 466 U.S. 648, 656 (1984); see also Alabama v. Shelton, 535 U.S. 654, 667 (2002) (quoting same language from Chronic); Lockhart v. Fretwell, 506 U.S. 364, 377 (1993) (quoting same); Moran v. Burbine, 475 U.S. 412, 430 (1986)
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rationing criminal Defense entitlements an argument from institutional design
Columbia Law Review, 2004Co-Authors: Darryl K BrownAbstract:This essay takes as its premise that the widespread and long-term underfunding of indigent criminal Defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to Defense Counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated—that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to Defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the Defense bar (aided by trial judges) looks like a species of Dorf and Sabel’s “democratic experimentalism,” a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors—Defense attorneys—have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which Defense Counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to * Associate Professor and Alumni Faculty Fellow, Washington and Lee University School of Law.
Leigh Swigart - One of the best experts on this subject based on the ideXlab platform.
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27 african languages in international criminal justice the international criminal tribunal for rwanda and beyond
2015Co-Authors: Leigh SwigartAbstract:This paper examines the various roles played by African languages, along with the practices and policies that were developed to respond to these roles, at the ICTR and SCSL, and, to a lesser extent, the ICC. Through interviewing judges, prosecutors, Defense Counsel, investigators, outreach officers, and language service specialists from the three courts, as well as exploring existing literature that touches on language use in these settings, the author attempts to draw a picture of how African languages fare in critical domains of international criminal justice. These domains include formal criminal investigations, courtroom proceedings, outreach to the regions where the international crimes have been committed, and communication with victims of these crimes.
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27 african languages in international criminal justice the international criminal tribunal for rwanda and beyond
Social Science Research Network, 2015Co-Authors: Leigh SwigartAbstract:As the media reminds us constantly, Africa is the site of numerous investigations and procedures by international criminal courts and tribunals. With the trials of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) essentially finished, and the International Criminal Court now into its second decade of operation, it is a good moment to take a step back and look at how these institutions deal with the languages of their constituents. A central question is this: how can international criminal courts and tribunals increase access to their institutions and enhance their legitimacy by recognizing the languages primarily used by the persons most closely connected to their proceedings? This paper is based on ongoing research about the various roles played by African languages in institutions of international criminal justice. Through interviews with judges, prosecutors, Defense Counsel, and outreach officers from the three courts mentioned above, the paper provides a picture of how African languages are being used and not used in three critical areas: formal criminal investigations and proceedings; outreach to the regions where genocide, war crimes, and crimes against humanity have been committed; and communication with victims of these crimes.
Richard J Wilson - One of the best experts on this subject based on the ideXlab platform.
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assigned Defense Counsel in domestic and international war crimes tribunals the need for a structural approach
Social Science Research Network, 2007Co-Authors: Richard J WilsonAbstract:This article takes a broad look at the use of assigned Counsel in both international and domestic venues for the trial of international crimes. It suggests that independent and adequately resourced structures for the delivery of Defense services are essential to the operation of such systems. It examines the work of the ICTY and the ICTR, the planned organization of Defense services in the International Criminal Court, as well as the hybrid courts in Sierra Leone, Kosovo, East Timor and Cambodia. It also looks at the domestic trial of international crimes in Rwanda and Ethiopia. After examination of the characteristics of these offices, several core concepts for an independent Defense office are examined and critiqued.
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chapter 3 a history of the role of Defense Counsel in international criminal and war crimes tribunals
2006Co-Authors: Richard J WilsonAbstract:The modern fulcrum of interest in international criminal law and tribunals is the set of post-World War II trials at Nuremberg and Tokyo. Interest in the history of those trials and others has grown with the contemporary development of the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the more recent creation of the permanent International Criminal Tribunal (ICC). There is, however, an extensive history of tribunals domestic and international, military and civilian which tried offences defined as international crimes, both before and after Nuremberg and Tokyo. This chapter examines that history through one particular lens: that of the role of and procedures governing Defense of the accused. The chapter profiles four of the generally unrecognized and sometimes colorful personalities who have defended those who were charged with crimes that were and are arguably the "worst of the worst": genocide, crimes against humanity and other atrocities. Keywords: crimes against humanity; Defense Counsel; ethical violations; genocide; international criminal tribunal (ICC); international humanitarian law; war crimes tribunals
Eric M Freedman - One of the best experts on this subject based on the ideXlab platform.
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re stating the standard of practice for death penalty Counsel the supplementary guidelines for the mitigation function of Defense teams in death penalty cases
Social Science Research Network, 2008Co-Authors: Eric M FreedmanAbstract:This is the Introduction to the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases, and summarizes its thirteen articles.A central - indeed, arguably the central - duty of Defense Counsel in a capital case is to humanize the client in the eyes of those who will decide his fate. The daunting task of imagining, collecting, and presenting such mitigation evidence pervades Counsel's responsibilities from the moment of detention on potentially capital charges to the instant of execution.A truly multi-disciplinary team, with skills in eliciting and documenting sensitive personal information, evaluating mental health status, and pursuing the varied skeins of social, cultural, environmental, and other influences that may have shaped the client's life course is needed to collect the data for Counsel and then to help shape its presentation into a narrative that will resonate with decisionmakers. In 2003, the American Bar Association embodied these standards in its updated Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003), for which I served as Reporter.Recognizing the central role of the mitigation function to the duties of capital Defense Counsel - and hence to the justice of the outcomes that will be achieved in capital cases - a diverse group of experts and organizations like the one assembled by the ABA for its project subsequently joined to develop Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. This special issue of the Hofstra Law Review publishes the Supplementary Guidelines together with articles elaborating the standards of practice they embody. Distinguished judges, legal scholars and practitioners, psychologists, medical doctors, and other experts explicate the creative dynamics involved in developing a fully lifelike portrait of the human being that the state seeks to execute.
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introduction re stating the standard of practice for death penalty Counsel the supplementary guidelines for the mitigation function of Defense teams in death penalty cases
Hofstra Law Review, 2008Co-Authors: Eric M FreedmanAbstract:As the Anglo-American legal world has understood for centuries, if a criminal justice system that includes capital punishment is to be a just one it must at the least insure that the defendant receives truly effective Defense representation. Since modern American capital punishment systems were reconfigured in 1976, they have seen a strong consensus coalesce around the elements of such representation. That consensus was embodied in guidelines issued by the American Bar Association (“ABA”) in 1989 and 2003 after extended consultation with practitioners and professional groups, and the courts have repeatedly recognized those guidelines as articulating the standard of care that capital Defense Counsel are to follow. A central—indeed, arguably the central—duty of Counsel in a
Paul Heaton - One of the best experts on this subject based on the ideXlab platform.
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how much difference does the lawyer make the effect of Defense Counsel on murder case outcomes
Yale Law Journal, 2012Co-Authors: James M Anderson, Paul HeatonAbstract:One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how Defense Counsel affect murder case outcomes. Compared to appointed Counsel, public defenders in Philadelphia reduce their clients' murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%. We find no difference in the overall number of charges of which defendants are found guilty. When we apply methods used in past studies of the effect of Counsel that did not use random assignment, we obtain far more modest estimated impacts, which suggests defendant sorting is an important confounder affecting past research. To understand possible explanations for the disparity in outcomes, we interviewed judges, public defenders, and attorneys who took appointments. Interviewees identified a variety of institutional factors in Philadelphia that decreased the likelihood that appointed Counsel would prepare cases as well as the public defenders. The vast difference in outcomes for defendants assigned different Counsel types raises important questions about the adequacy and fairness of the criminal justice system.
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how much difference does the lawyer make the effect of Defense Counsel on murder case outcomes
Social Science Research Network, 2011Co-Authors: James M Anderson, Paul HeatonAbstract:One in five indigent murder defendants in Philadelphia are randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how Defense Counsel affect murder case outcomes. Compared to appointed Counsel, public defenders in Philadelphia reduce their clients’ murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%. We find no difference in the overall number of charges of which defendants are found guilty. When we apply methods used in past studies of the effect of Counsel that did not use random assignment, we obtain far more modest estimated impacts, which suggests defendant sorting is an important confounder affecting past research. To understand possible explanations for the disparity in outcomes, we interviewed judges, public defenders, and attorneys who took appointments. Interviewees identified a variety of institutional factors in Philadelphia that decreased the likelihood that appointed Counsel would prepare cases as well as the public defenders. The vast difference in outcomes for defendants assigned different Counsel types raises important questions about the adequacy and fairness of the criminal justice system.
