All Slides Flashcards
Powell (Why require counsel in any criminal cases)
Complexity–Substantive criminal law, defenses, and rules of evidence and procedure are enormously complicated. Defendants need expert assistance.
* Defendants Unsophisticated- Defendants typically lack specialized training in law, may have limited education or intelligence, and may suffer from mental or other impairments
* High Stakes–Criminal convictions may result in imprisonment or even death
What cases involve special circumstances that justify the appointment of counsel? (Betts)
- Complex Cases–
Some criminal cases present especially complex factual or legal issues, sophisticated strategies, or elaborate trial procedures. But many do not. - Unsophisticated Defendants– Some defendants suffer from developmental disabilities, cannot read or write, or lack a basic
education. But many do not. - Capital or High-Stakes Crimes–Some crimes carry potential sentences of death or long-term imprisonment. But many do not.
Hurtado
due process does not require indictment my a grand jury.
Duncan
right to a jury trial is fundamental and extends to all states– served by history, accuracy, and the bill of rights
Medina
Result of Gideon
After Gideon, due process requires appointed counsel when the defendant is charged with any felony offense (traditionally, an offense punishable by more than 1 year of imprisonment)
Argersinger and Scott (scope of right to counsel)
In misdemeanor cases, due process requires
appointed counsel when the defendant is actually
imprisoned for any length of time (Argersinger), but
not when the defendant receives a non-prison
sentence (Scott)
Shelton
Suspended Sentences
For misdemeanors, “actual imprisonment” includes suspended sentences in which the defendant may later be imprisoned based on the revocation of probation
Nichols
Right of counsel does not extent to Prior Convictions at Sentencing
When sentencing a defendant who is represented by counsel, courts are free to impose a sentence of imprisonment (or longer imprisonment) based on a prior, uncounseled misdemeanor conviction that was legally valid when entered
Gideon. Why should due process require the appointment of
counsel in almost all criminal cases?
- Ordinary Circumstances Sufficient– All felony cases are sufficiently complex and high-stakes that ordinary people require counsel
- Government Has Lawyers–The prosecution is represented by counsel, creating a mismatch between a legal expert and a layperson
- Wealthy People Retain Lawyers–Defendants of means consider lawyers necessary
- Rules vs. Standards–
A case-by-case inquiry into special circumstances is unwieldy, requiring that courts hazard guesses
Shelton
Rothgery
- Attachment–The Sixth Amendment right to counsel “attaches” when the defendant becomes the subject of “adversary judicial criminal proceedings.” The right thus attaches at the initial appearance (Rothgery), or a formal charge or indictment.
- Critical Stages–But even after attachment, the Sixth Amendment
requires the presence of counsel only during
“critical stages,” i.e., stages where the substantial rights of the accused may be affected. Critical stages may be limited to hearings that implicate the defendant’s guilt or innocence
Examples of Critical Stages
- Post-attachment
interrogations, lineups - Preliminary hearing
- Arraignment
- Plea hearing
- Plea negotiations
- Psychiatric exam to
test competence - Suppression hearing
- Trial
- New trial motion hearing
- Sentencing
Examples of NOT Critical Stages
- [Anything that occurs
pre-attachment] - Status conferences
- Taking of handwriting
exemplar - Scientific analysis of
evidence (fingerprints,
blood samples, etc.) - Presentence interviews
with court staff
When does the right to counsel end
The Sixth Amendment right to the assistance of
counsel extends to “[t]he accused” in “all criminal
prosecutions.” It continues through sentencing and
the entry of judgment, but no further
Right to Counsel on Appeal?
Under 14th AM
If states afford criminal defendants an opportunity
to appeal, Due Process and Equal Protection
require the appointment of appellate counsel for
indigent defendants (Douglas, Halbert);
but that right does not extend to further
discretionary review, such as a petition to a state supreme court (Ross v. Moffatt), or to state
post-conviction or federal habeas proceedings
Begin Ineffective Assistance of Counsel
Begin Ineffective Assistance of Counsel
Challenges in Identifying Ineffective Assistance
- Client Role: Some defendants choose their lawyers, and some
defendants disregard their lawyers’ good advice - Difficult to Identify Errors: There is no one correct strategy in any case, and the mere fact that a lawyer’s choices did not work does not necessarily make them wrong
- Counterfactual:
Imagining the outcome with “effective” assistance
requires speculation and conjecture, creating a risk
of hindsight bias
Flood Gates Argument for Ineffective Assistance
- Number of Decisions–Criminal defense lawyers take dozens, perhaps
hundreds of actions during every representation that
could be second-guessed - Omissions–The number of additional actions that counsel could have taken in every case is essentially infinite
- Incentives–Most people convicted of crimes and sent to prison are dissatisfied with the outcome, and with their
lawyers. They have strong incentives to challenge
their attorneys’ conduct after the fact.
Strictland
To establish ineffective assistance of counsel defendant ordinarily must prove:
1) Deficient Performance
Counsel’s errors fell below a standard of
professional reasonableness, based on the totality of the circumstances; and
2) Prejudice. But for counsel’s unprofessional errors, there is a
reasonable probability that the outcome would
have been different.
Reasoning behind Strickland
- Objective standard, totality of the circumstances
- Presumption of competence, in deference to professional judgment of attorneys
- Hindsight bias must be avoided
- Strategic decisions by counsel “essentially unreviewable”
- Duty to investigate only if, and only to the extent
that, further investigation is reasonable - Defendant’s actions are relevant
When is prejudice presumed?
- Actual Conflict of Interest. Counsel was conflicted in a manner that had a significant adverse effect on performance
- Denial of Counsel during Critical Stage (Powell)
- Government Interference. E.g. Geders (judge barred counsel from speaking
with the defendant during overnight recess) - Cronic Breakdown.
Counsel “entirely fails to subject the prosecution’s
case to meaningful adversarial testing
Examples of Deficient Performance
- Prima facie deficiency for failure to investigate (Pinholster)
- Deficient advice about immigration consequences (Padilla)
Examples of Prejudice
- Effect of perjured testimony on outcome (Nix v. Whiteside)
- Effect of evidence that could have been suppressed (Kimmelman)
- Effect of incorrect but favorable precedent (Fretwell)
- What “outcome” matters at noncapital sentencing? (Glover)
- What “outcome” matters when counsel fails to file a notice of appeal, as requested by the defendant? (Flores-Ortega)
- What “outcome” matters for guilty pleas? (Hill)
Begin Conflicts of Interest
Begin Conflicts of Interest
Why is there presumed prejudice when there is a real conflict of interest
- High Risk of Error.
The prejudice prong of Strickland requires that the error undermined confidence in the result. Conflicts of interest create such a pervasive risk of error that
there is no need to litigate the effects in each case. - Problems of Proof.
It is impossible to know how the proceedings would have unfolded differently in the absence of the conflict, especially as to actions not taken - Constructive Denial of Counsel. A conflicted attorney does not serve as “counsel” for
“the accused” under the Sixth Amendment
Reasons for multiple representations
- Cost
- Client’s choice of counsel
- Assurance of solidarity
- Coordinated strategy
Rompilla
Sullivan
no objection, no duty to inquire, maybe effect on performance, presumed prejudice, = maybe ineffective assistance of counsel
Mickens
no objection, yes duty to inquire, no effect on performance, prejudice unclear, = no ineffective assistance of counsel
Frye, Cooper
Worse Outcome of Plea Process
A reasonable probability that, but for counsel’s
errors during the guilty plea process there would have been a more favorable result
A reasonable probability that, but for counsel’s
errors:
the defendant would have accepted a plea offer;
the prosecution would not have withdrawn the offer;
the trial court would have accepted the agreement; and
the resulting charges or sentence would have been less
severe.
Hill
Wrongly Pleaded Guilty
A reasonable probability that, but for counsel’s
errors, the defendant would not have pleaded guilty but instead would have proceeded to trial
Remedy for Ineffective Assistance of Counsel
In Cooper, the Court held that the proper remedy was to compel the prosecution to re-offer the original plea agreement. Should the trial court:
accept the agreement and impose the lighter sentence?
reject the agreement and reinstate the original sentence?
impose a sentence somewhere in between?
vacate the conviction and start over?
Begin Self Representation
Begin Self Representation
Faretta
The Sixth Amendment affords criminal defendants the
right to represent themselves
McCaskle v Wiggins
Standby Counsel Permitted.
Courts may appoint lawyers to help a pro se
defendant, so long as the defendant retains:
(1) actual control over the case (e.g., tactical
decisions, questioning, speaking on important
questions), and
(2) the perception of self-
representation before the jury
Can a Pro Se Person Claim “Ineffective assistance of counsel”
no
Edwards
Competence (Edwards)
States may set a more demanding standard of
competence for defendants proceeding pro se than
for defendants to stand trial with the assistance of
counsel
Martinez
The right to self-representation ends after trial and
sentencing, and does not extend to appeals
Do Choice of Counsel violations require prejudice
no
Sixth Amendment violations that are “structural” and require automatic reversal:
Self-Representation (Faretta) Denying a competent defendant the right to represent himself in a criminal case
- Counsel of Choice (Gonzalez-Lopez)
Erroneous deprivation of the right to hire an
otherwise qualified lawyer of the defendant’s
choosing - Overriding Client Instructions (McCoy, Garza) Disregarding client decisions about the
“fundamental objective[s]” of the representation
Right to Counsel
Considerations for determining bail
- Seriousness of the offense charged
- Criminal history
- Employment
- Education
- Home ownership
- Family and other ties to the region
- Income, liquid assets available
- Age, demeanor, inclination toward risk-taking
Stack v Boyle
Under the Eighth Amendment Bail is “excessive” when:
1. Amount Excessive
The bail required is unusually high by reference to
the “usual” amount for the offense, or to the
maximum fine or punishment for the offense; and
2. No Individual Evidence
The bail amount is not justified by individualized
evidence.
Salerno
Federal Bail Reform Act does not offend due process because:
1. Regulatory, Not Punitive–The measure of an “excessive” bail under the Eighth Amendment is not limited to the purpose of assuring the presence of the accused at trial. Other objectives, such as protecting witnesses or the
public, also may be taken into account.
2. Interest Balancing (1) The government has a “legitimate and compelling” interest in preventing crime by accused
persons; and (2) the Act focuses narrowly on those accused of certain serious crimes, with strong proof of a likelihood of future criminal conduct; despite (3) the defendant’s strong liberty interests.
3. the outright denial of bail by definition cannot be excessive because no bail has been set
Instances of non punitive preventative detention with supporting cases
- Insane persons (Addington)
- Defendants incompetent to stand trial (Jackson)
- Juvenile offenders (Schall v. Martin)
- Arrestees (Gerstein v. Pugh)
- sex offenders (hendricks)
Appellate standard for bail
bail amounts
are reviewed only for abuse of discretion
When does a bail determination become appealable
Because bail determinations are “collateral orders” unrelated to the ultimate question of guilt or innocence, and an appeal would be pointless after
trial, an interlocutory appeal is allowed from the denial of a motion to change bail
Costs of pretrial detention
- Impairs Defense: Greater difficulty consulting with counsel, gathering
witnesses and evidence, receiving family support - Job: Loss of income, loss of employment
- Stigma: retrial detention makes the stigma of arrest and
criminal charges more obvious - Pressure to Plead: Even innocent defendants face strong pressure to plead guilty if an immediate plea results in release
Rationales for having publicly employed prosecutors
Professionalization–Lay people lack the skill to investigate and prosecute
crime in a legal system that has grown too complex
* Cost–Investigating crime, generating evidence, paying expert witnesses, and other costs would deter many crime victims from bringing a private criminal action
* Victimless Crimes–Who would bring charges for drug offenses, prostitution, immigration, weapon possession,
obstruction, and other offenses without a private victim?
Legitimate Factors for determining whether to charge
strength of evidence and likelihood of conviction
seriousness of the offense, as measured by the harm caused or the defendant’s culpability
value of prosecution in terms of deterrence, incapacitation, rehabilitation, and other goals
defendant’s criminal history and characteristics
interests and wishes of crime victims
public profile of the case
public interest and local priorities
costs and opportunity costs of prosecution, measured in time and taxpayer dollars
Illigitimate factors for determining whether to charge
discrimination based on race, other characteristics
personal vindictiveness, lack of sympathy for defendants or victims
personal affinity, loyalty, or professional relationship with defendants
targeting of political enemies, or to affect the results of an upcoming election
improving the prosecutor’s win/loss record
“no jury would convict”
Prosecutorial Discretion
Statute at issue in Inmates of Attica
U.S. Attorneys are “authorized and required * * * to institute prosecutions against all persons violating any of the [federal civil rights laws].”
Inmates of attica
No obligation for prosecutors to charge under 42 USC 1987.
Prosecutorial charging decisions are:
* Secret–Prosecutors need not disclose the reasons for their decisions, and almost never do so
* Unreviewable (Inmates of Attica)
Prosecutors’ decisions frequently are not reviewed by anyone, and almost never are reviewed externally
* Decentralized–District attorneys and attorneys general delegate their authority to line prosecutors. They in turn depend on police and other agents.
* Complex and Subjective Some rules, but mostly multifactor standards
Legal Rationales for unreviewability of prosecutorial decisions to charge or not charge
- Separation of Powers–The executive has power to take care that the laws are executed, making judicial review inappropriate
- No Judicially Manageable Standard–
Charging decisions require a big-picture perspective, and courts are ill-equipped to second-guess the decisions of prosecutors without the full context - Lack of Duty –Mandamus is available only when officials have an
underlying legal duty, and charging is discretionary– - Standing Victims cannot establish traceability or redressability
practical rationales discussed in inmates of Attica
Secrecy–The only way to evaluate non-prosecution decisions is to review records of confidential investigations.
Permitting discovery and evaluating that decision may tarnish the reputation of innocent people.
* Chilling Effect–Executive officials may be chilled in the performance of their duties if they knew that courts could
countermand them, to the detriment of public safety
* Litigation Management–What happens if prosecutors subsequently seek to dismiss, or perform poorly, or offer a generous plea deal? Do the courts or plaintiffs take over? Judicial Review of Prosecutorial Discretion
Batchelder
- Vagueness–There is nothing ambiguous about the two “contradictory” penalty provisions
authorizing the defendant’s sentence. The statute afforded fair notice of the potential punishment. - Due Process / Equal Protection–Prosecutorial discretion (even “unfettered”) is routine and unavoidable. The constitution prohibits discrimination in charging when alleged and proven.
- Nondelegation–Both statutes set the maximum sentence to be imposed by the judge, who was free to select a less
severe punishment
McCleskey
For a Successful Equal Protection Challange to Prosecutorial Discression:
- Purposeful Discrimination Required–The Constitution prohibits intentional (i.e. purposeful) discrimination, not disparate impacts
- Extreme Disparity May Be Enough
Disparity creates an inference of purposeful discrimination, but only if extreme (Yick Wo,
Gomillion) - Discretion Inevitable, Clear Proof Required Because criminal justice necessarily requires discretionary judgments, “exceptionally clear proof”
must be advanced to show that it has been abused
Avenues for Judicial Review of Prosecutorial Decisions
Equal Protection
First Amendment
“Vindictive” Prosecution
Civil Action (Hart v. Moore)–But an action for malicious prosecution or retaliation requires that the government lacked probable cause
Armstrong
Equal Protection (Armstrong)–But defendants must identify similarly situated defendants who were not prosecuted
Wayte
First Amendment– But courts defer to government’s enforcement strategy where plausible non-speech reasons exist
Blackledge/Menna
“Vindictive” Prosecution–But courts presume good faith for prosecutorial decisions before trial (Goodwin)
Hart v. Moore
Civil Action–But an action for malicious prosecution or retaliation requires that the government lacked probable cause
Costello
Evidence–“An indictment from a legally constituted and unbiased grand jury . . . if valid on its face, is sufficient to call for trial.” Neither the admissibility
nor the sufficiency of the evidence is reviewable.
Williams
The Court rejects a requirement that prosecutors must disclose evidence that “directly negates” guilt
Because the grand jury is an accusatory body, prosecutors have no obligation to disclose exculpatory evidence
Rationales for Why Prosecution does not have to disclose all evidence negating guilt at the grand jury stage
- History–Courts historically have limited involvement with grand juries, which operate using informal procedures and hear only the prosecutor’s case
- Accusatory, Not Adjudicatory–Grand juries do not to decide guilt or innocence, or even whether a jury could find guilt at trial. They merely accuse, based on probable cause.
- Independence–In theory, grand juries lead their own investigation. If they have no obligation to seek mitigating evidence, why should prosecutors have to present it?
Standard of Review for Error at Grand Jury Stage
Grand jury errors before trial can be harmless (Bank of Nova Scotia), and after a guilty verdict at trial almost always are harmless (Mechanik)
Begin Speedy Trial Material
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial * * * .
U.S. Constitution, Sixth Amendment
Benefits to Defendants of the Speedy Trial Clause
Accuracy–Over time, defense witnesses may become unavailable and physical evidence may spoil. Delay
may prejudice defendants by preventing them from offering accurate evidence of innocence at trial.
* Liberty–Defendants may be imprisoned during the months leading up to trial, or may be subject to supervision and other restrictions on their liberty
* Cloud–People accused of crime find their lives clouded with
uncertainty, anxiety, and public disapproval
Benefits to the public of the speedy trial clause
Accuracy–Over time, state witnesses may become unavailable and physical evidence may spoil. Delay may prejudice the prosecution by preventing accurate evidence of guilt from being introduced at trial.
* Flight Risk–Speedy trials reduce the amount of time defendants have to flee the jurisdiction
* Dangerousness–Some defendants who remain free before trial pose
a threat to the public, and a speedy trial minimizes the duration of that threat
Barker
Four-part balancing test :
- Length of Delay–How long did it take from the filing of the accusation
to commence the trial? Some threshold level of delay (e.g., 1 year) is needed to trigger an inquiry. - Reasons for Delay–Can the government offer good reasons, bad
reasons, or neutral reasons for the delay? - Defendant’s Assertion of the Right–
Failure to assert the right makes Speedy Trial claims more difficult - Prejudice to the Defendant–Examples: prejudice to case, incarceration, anxiety
Doggett
Starting Point
The clock begins to run upon arrest or indictment (or unsealing of indictment), whichever comes first
Lovasco
Pre-Charging Investigation Delay
The Speedy Trial Clause applies only to the “accused in a criminal case.” The fact that pre-charging delay prejudiced the defense, standing alone, does not violate due process
Betterman
Pre Sentencing Delay
In 2016, the Court unanimously held that the Speedy Trial Clause does not apply to delays between conviction and sentencing. The right to a speedy trial “detaches” upon conviction.
Begin Venue and Vicinage
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * * .
U.S. Constitution, Sixth Amendment
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
U.S. Constitution, Art. III, § 2
Venue and Vicinage
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
18 U.S.C. § 3237(a)
Rodriguez-Moreno
Firearm possession in state A “during and in relation to” a continuing offense in states A and B… venue is proper in states A and B
Kidnapping, offense beings in state A and “continues” as the victim is brought to state B… venue is proper in states and A and B
Rule 21 Transfer (of Venue) for Trial
(a) For Prejudice. Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.
(b) For Convenience. Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the
witnesses, and in the interest of justice.
Venue and Pretrial Publicity Issues in Criminal Cases
- Inaccurate or Misleading Information
- Accurate But Incomplete Information
- Accurate But Inadmissible Information
- Accurate But Prejudicial Information
How to avoid dangers of pretrial publicity
- Transfer Venue. Move the trial to a different jurisdiction, where the publicity was more limited and the pool less biased
- Unexposed Jurors. Permit citizens to serve on the jury only if they were
never exposed to pretrial publicity about the case - Jury Instructions and Promises. Insist that jurors must promise to be impartial, and instruct them to disregard pretrial publicity
- Wait. Grant a continuance and wait for passions in the district to subside
Venue and Pretrial Publicity
Skilling
The failure to transfer venue violates due process in either of two circumstances:
1. Presumed Prejudice (Rideau, Estes, Sheppard)–Pretrial publicity or other characteristics of the venue may make the risk of bias against the defendant so pervasive that prejudice is presumed. Due process requires a change of venue regardless of the evidence of bias as to particular jurors.
2. Actual Prejudice (Irvin)–If any juror who actually served in the case was
biased against the defendant, then reversal is required.
Considerations in Skilling of Presumed Prejudice
Majority
* Size of city, likelihood of finding jurors
* Much pretrial publicity was objective
* Time passed (4 years) between crime and trial, cooling passions
* Acquittal on some charges
Dissent
* Extensive media coverage of crime, trial, and victims
* Large number of victims, likelihood of relationships
* Guilty plea by co-defendant before trial
* Questionnaires and surveys of potential jurors during voir dire
Consideration of actual prejudice in Skilling
Majority
* Extensive pretrial screening for bias,
careful voir dire questioning
* Deference to trial judge’s factual finding that all jurors were impartial
* Lack of bias toward Skilling specifically
Dissent
* Cursory and “unenlightening” answers to general questions in voir dire
* Worrying answers about guilt (Juror 11)
* Equivocal answers about impartiality (Juror 63)
* “Sliding scale” scrutiny of actual prejudice in light of near-presumed prejudice
