Discussion help - Assignment Essays

Review the material on prosecutors and public defenders. (500 WORDS)

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If you had to choose one or the other as your profession, which would you choose (prosecutor or public defender)? Why?

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Please discuss all aspects of the employment for your chosen profession (prosecutor or public defender).

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Requirements

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Salary

·
What are the main responsibilities for your chosen profession (prosecutor or public defender)?

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Who would be your boss if you had this position (prosecutor or public defender) in Miami Dade County (11th Circuit)?

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Share some information about your boss.

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Are they doing a good job? Explain.

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What are the rewards of this profession?

·
What are the difficulties of this profession?

America’s Courts and the Criminal

Justice System, 13th Edition

Chapter 6
Prosecutors

Learning Objectives

(1 of 2)

1. Discuss the two major characteristics of prosecutors

in the United States.

2. Describe the three most important entities in federal

prosecution.

3. Identify the three somewhat overlapping agencies

involved in prosecution in state courts.

Learning Objectives

(2 of 2)

4. Explain the major factors affecting the work life of

assistant district attorneys.

5. Analyze the principal factors affecting prosecutorial

ethics.

6. Outline two major examples of the expanding domain

of the prosecutor.

Origin of the Public Prosecutor

• From Private to Public Prosecutions

– Government employees in civil service

– Evolved from private prosecutions in English

common law

– Private citizens facilitated private vengeance

– Concerns regarding due process about private

prosecutions led to public prosecutor model

• Quasi-Public Prosecutions

– Prosecution out-sourcing model

– Part-time prosecutor model

Role of the Prosecutor

• Major Characteristics

– Broad discretion

▪ Limits on discretion during trial

▪ Prosecutorial misconduct

– Charging decisions

▪ Have total discretion

▪ Overview of focal concerns theory

▪ Focal concerns theory applied to charging

– Decentralized

Case Close-Up: Connick v. Thompson

(1 of 2)

• Fourteen years on death row

– Prosecutor withheld evidence that might have

led to Thompson’s acquittal

• Question raised regarding DA’s office paying

for egregious prosecutorial misconduct

– Federal jury held Connick liable

Case Close-Up: Connick v. Thompson

(2 of 2)

• U.S. Supreme Court overturned the jury’s decision,

arguing one cannot sue for civil rights violations under

Section 1983 for failure to train prosecutors based on

a single Brady violation

– Prosecutors are immune from civil law when they are

performing their role, but only enjoy immunity outside

the judicial arena (faulty advice to police)

Courts, Controversy, and Gender Equity

• Are Sexual Assaults Against Women

Underprosecuted?

– What do you think? Are sexual assaults

underprosecuted?

– If so, is the reason because criminal justice officials

fail to adequately consider the plight of the victim or

because these cases are more likely to have evidence

problems?

Overview of Prosecutors in the

Dual Court System (1 of 2)

Federal State

Solicitor General

• Represents 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.

Attorney General

• Chief legal officer of the state.

• Civil duties more extensive than

criminal duties.

• Has limited authority in criminal

prosecutions.

Criminal Division

• Prosecutes a few nationally

significant criminal cases.

• Exercises nominal supervision

over U.S. attorneys.

Chief Prosecutors and Their

Assistants

• Have great autonomy in

prosecuting felony cases.

• Typically argue cases on appeal.

Overview of Prosecutors in the

Dual Court System (2 of 2)

Federal State

U.S. Attorneys and Their

Assistants

• Prosecute the vast majority of

criminal cases in federal courts.

• Enjoy great autonomy in actions.

Local Prosecutors

• Often handle preliminary stages

of felony cases.

• Prosecute the large volume of

cases in the lower courts.

Prosecution in Federal Courts (1 of 2)

• U.S. Attorney General

• Three most important entities in prosecution

1. Solicitor General

▪ Third-ranking officer in DOJ

2. Criminal Division of the Justice Department

▪ Formulates criminal law enforcement policies

in federal cases

3. U.S. Attorneys

▪ Principle litigator under the direction of the

attorney general

Prosecution in Federal Courts (2 of 2)

• U.S. Attorneys

– Appointed and serve at the discretion of the President

with the consent of the Senate

– Three statutory responsibilities

1. Prosecution of criminal cases brought by the federal

government

2. Initiation and defense of civil cases in which the United

States is a party

3. Collection of certain debts owed the federal government

Thinking Point: U.S. Solicitor General

• Research the current U.S. Solicitor General

http://www.justice.gov/osg/index.html

– What does the website discuss regarding the

U.S. Solicitor General?

– What is the job function of the Solicitor General?

– What is the mission of the organization as a whole?

– How does someone qualify for this position?

Prosecution in State Courts

• Three overlapping entities

1. State attorneys general

2. Chief prosecutor

3. Local prosecutor

Thinking Point: State Prosecutors

• Locate your state attorney general, chief prosecutor,

and local prosecutor.

– Who are they?

– What are their overall job functions?

– What qualifies them for the position they currently hold?

– Are they effective in their job positions? Why or why not?

The Prosecutor’s Office at Work

• Assistant District Attorneys

– High turnover

– Learning the job

▪ Law school provides little exposure to day-to-day

operations of the position

▪ Young prosecutors’ syndrome

– Promotions and office structure

▪ Experience leads to promotions

– Supervision

▪ Supervised by a section head

– Attempts at greater supervision

Prosecutorial Ethics

• Representatives of both victims and the police

• Prosecutorial immunity

– Absolute immunity

▪ Within the realm of prosecutorial functions

– Qualified immunity

▪ When not acting as advocate for government

Ethical Duties of Prosecutors

• Ethical issues different from those facing defense

attorneys

– Client of the prosecutor is the government

• Ethical issues facing prosecutors

– Disclosure of evidence

– Conflict of interest

– Discretion

– How much information to release to the public

Key Developments Concerning

the Prosecutor (1 of 2)

• Berger v. United States (1935): The prosecutor’s

primary interest is in doing justice, not simply winning

cases.

• Imbler v. Pochtmon (1976): Prosecutors enjoy absolute

immunity from civil liability when initiating and pursuing

a criminal prosecution.

• Morrison v. Olson (1988): Independent counsel law is

constitutional.

• Burns v. Reed (1991): Prosecutors enjoy only qualified

immunity from lawsuits concerning advice given to the

police.

Key Developments Concerning

the Prosecutor (2 of 2)

• Buckley v. Fitzsimmons (1993): Prosecutors enjoy only

qualified immunity from civil lawsuits for actions during

criminal investigations and statements made during

news conferences.

• Kalino v. Fletcher (1997): A prosecutor may be sued for

making false statements of fact in an affidavit in

support of an arrest warrant.

• Connick v. Thompson (2011): A district attorney’s office

may not be held liable under Section 1983 for failure to

train prosecutors based on a single Brady violation (or

perhaps, even a handful of Brady violations).

Thinking Point: Casey Anthony

• Review the Casey Anthony case.

– What issues did you see with regard to the prosecution?

– What could the prosecution have done differently?

– How prepared/trained were the prosecutors for this

high-profile case?

– What was the outcome of the case?

Prosecutors and Courtroom Work Groups

• Conflicting goals and contrasting work groups

• Political styles and contrasting work groups

– Socialization process varies

The Expanding Domain of the Prosecutor

• Improving police–prosecutor relationships

– Promote adequate police reports and contact

between the two parties

• Community prosecution

– Crime prevention is the goal

Case Close-Up: Burns v. Reed

• Should prosecutors be immune from civil lawsuits?

• What did the Supreme Court say?

America’s Courts and the Criminal

Justice System, 13th Edition

Chapter 7
Defense Attorneys

Learning Objectives (1 of 2)

1. Interpret the four major legal issues surrounding the

right to counsel.

2. Discuss how the courtroom work group affects how

defense attorneys represent their

clients.

3. Explain why most lawyers do not represent criminal

defendants

Learning Objectives (2 of 2)

4. Compare and contrast the three systems of providing

indigents with court-appointed attorneys.

5. Recognize possible tensions between lawyers and

clients.

6. Analyze the importance of legal ethics to the defense

of criminal defendants.

Case Close-Up:

Gideon v. Wainwright

(1963)

• Clarence Earl Gideon

– Requested a court appointed attorney and was refused

– Unrepresented by

counsel

– Supreme Court sided with Gideon

• Indigent defendants have the right to court-appointed

counsel

– Applies in felony criminal proceedings

– Decision sent shock waves through the criminal

justice system

The Right to Counsel

• Sixth Amendment

• Extended to juveniles in In re Gault (1967)

– Issues of right to counsel with

▪ Nonfelony criminal prosecutions

▪ Stages of the criminal process

▪ Ineffective assistance to counsel

▪ Self-representation

Non-Felony Prosecutions

• Argersinger v. Hamlin (1972)

• Scott v. Illinois (1979)

• Alabama v. Shelton (2002)

Thinking Point: Justice Scalia

• Research Justice Antonin Scalia and his

rulings/discussions regarding juvenile court

proceedings.

– Are the issues fair and impartial? Why or why not?

– How do the issues relate to the adult system?

– What cases are most current?

– Discuss these cases and their issues.

Stages of the Criminal Process (1 of 2)

• Sixth Amendment applies to all criminal prosecutions,

thus coined the Critical Stages test

– Mempa v. Rhay (1967)

– Miranda v. Arizona (1966)

– Kirby v. Illinois (1972)

• Once adversary proceedings have begun

– Brewer v. Williams (1977)

– Rothgery v. Gillespie

County (2008)

–

Missouri v. Frye (2012)

– Lafler v. Cooper (2012)

Stages of the Criminal Process (2 of 2)

• Custodial interrogations

– Miranda v. Arizona (1966)

• Police lineups

– U.S. v. Wade (1967)

– Kirby v. Illinois (1972)

Right to Counsel During Steps in

Felony Prosecutions (1 of 3)

Extent of Right Supreme Court Case

Arrest No lawyer required

Initial appearance
Lawyer required

if critical stage

Rothgery v. Gillespie

County (2008)

Ball
Lawyer required

if critical stage
Coleman v. Alabama (1970)

Charging No lawyer required

Preliminary hearing Lawyer required Coleman v. Alabama (1970)

Grand jury No lawyer allowed

Arraignment Lawyer required Hamilton v. Alabama (1961)

Right to Counsel During Steps in

Felony Prosecutions (2 of 3)

Extent of Right Supreme Court Case

Interrogation

(preindictment)
Lawyer on request Miranda v. Arizona (1966)

Interrogation

(postindictment)
Lawyer required Massiah v. U.S. (1964)

Lineup (preindictment) No lawyer required Kirby v. Illinois (1972)

Lineup

(postindictment)
Lawyer required U.S. v. Wade (1967)

Plea bargaining Lawyer required

Brady v. U.S. (1970);

Tollett v. Henderson (1973);

Missouri v. Frye (2012)

Right to Counsel During Steps in

Felony Prosecutions (3 of 3)

Extent of Right Supreme Court Case

Trial Lawyer required
Gideon v. Wainwright

(1963)

Sentencing Lawyer required Mempa v. Rhay (1967)

Probation revocation
Lawyer at court’s

discretion
Gagnon v. Scarpelli (1973)

Parole revocation
Lawyer at board’s

discretion
Morrissey v. Brewer (1972)

First appeal Lawyer required Douglas v. California (1963)

Discretionary appeal No lawyer required Ross v. Moffitt (1974)

Ineffective Assistance of Counsel

• Objective Standard of Reasonableness

• Strickland v. Washington (1974)

– Did counsel’s conduct undermine the proper function

of the process?

– Did it render the outcome unfair?

• Appellate courts must reverse if proceedings were

unfair and the outcome would have been different

if counsel had not been ineffective

– Few appellate court reversals on these grounds

Self-Representation

• Defendants have a Sixth Amendment right to

self-representation.

– Pro se

– Missouri v. Frye (2012)

– Lafler v. Cooper (2012)

– Faretta v. California (1975)

– Limits

▪ Must show judge the ability to conduct the trial

▪ Standby council is available during the trial

Thinking Point: Self-Representation

• You have just been arrested for armed robbery

of a bank. You decide you will represent yourself.

– Come up with a defense to your actions. Present

this to your class. Allow the class to ask questions.

– Discuss your overall experience and why you want

to defend yourself.

Defense Attorneys and

Courtroom Work Group (1 of 2)

• Defining Winning

– Winning is doing the best for a client.

▪ Probation, accepting a plea to a misdemeanor

(assuming client is guilty), and so on

• Cooperative Attorneys

– Rewards

▪ Access to police reports, witnesses

– Sanctions

▪ Indirect: poor scheduling, dragging out of trials

▪ Direct: criticism, lack of assignment of some cases

▪ Tougher plea bargaining

Defense Attorneys and

Courtroom Work Group (2 of 2)

• Variations in cooperation

– Inexperienced attorneys

– Gamblers

– Public defenders

– Private attorneys with large numbers of defendants

• An assessment

– Co-opted?

▪ Or

– Cooperative?

The Criminal Bar

• Diversity and stratification of the legal profession

– Environment of practice

▪ Low status

▪ Difficulty in securing clients

▪ Low fees

Providing

Indigents with Attorneys

• Appointed counsel

• Indigents

– Those who are too poor to pay for an attorney and

are entitled to have one provided for them for free

▪ 75% of state prison inmates have a court-appointed

lawyer

▪ In urban courthouses, 82% of felony defendants are

too poor to hire their own lawyer

▪ It is up to counties to determine what type of system

they will utilize

Three Systems of Providing

Indigents with Attorneys

1. Assigned counsel

– Attorneys appointed by the judge on a case-by-case

basis

2. Contract systems

– Attorneys hired to provide services for a specified

dollar amount

3. Public defender

– A salaried public official representing all indigent

defendants

Assigned Counsel

• Most common in small counties

• Criticisms

– Least-qualified attorneys

– Inadequate pay

Contract Systems

• Most common in small counties

• Criticisms

– Lower standard of representation due to bidding

– Private bar no longer plays an important role in

indigent defense

– Found unconstitutional in Arizona

Public Defender

• Started in Los Angeles County, 1914

• Today the public defender system represents

approximately 70% of all indigents nationwide

• Public or private nonprofit organizations

representing indigents

• Funding occurs at the state or local level

Courts, Controversy, and

Economic Inequality

• Are we spending too little or too much on indigent

defense?

– What do you think? Do we spend too much on indigent

defense, or do we currently spend too little?

– Do you agree more with the due process model or crime

control model thinking on indigent defense? Why?

Assessing the Merits of the Public Defender

• Proponents

– Devote more attention to clients

– More experienced, competent counsel

– Continuity and consistency

• Critics

– Tied too closely to the courtroom work group

Lawyers and Clients (1 of 2)

• Lawyer acts as advocate and counselor

– Privileged communication

• Lawyers’ views on their clients

– Frustration due to difficult clients

▪ Lack of trust

▪ Evasion

▪ Deception

▪ Failure to take advice

Lawyers and Clients (2 of 2)

• Defendants’ views on their lawyers

– Skeptical about skill

– Worry about whose side their lawyer is on

– Suspicious

– Lack of one-to-one contact

Defense Attorney Ethics

• Model Rules of

Professional Conduct

– Zealous representation

– Abide by client’s decision

– Avoidance

– Act with reasonable diligence

– Keep the client reasonably informed

– Confidentiality

– Avoid conflict of interest

Thinking Point: Model Rules of

Professional Conduct

• Research the Model Rules of Professional Conduct

adopted by the American Bar Association.

– Are the rules substantial? Why or why not?

– How do they apply directly to all courtroom actors?

– What are the advantages and disadvantages to this

ethical model?

– Would you change any of the rules? Why or why not?

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