Today’s Topics: Sentencing Basic Concepts Constitutional Limitations Punishment Options to Incarceration Federal Sentencing Guidelines
Conflicts of Interest Three prisms Per se Active Waiver Recall Strickland Prejudice can be presumed if conflict
Multiple Representation Issue: Is allowing or requiring a single lawyer to represent co-defendants a per se violation of right to effective assistance of counsel
Multiple Representation Query: What evils or dangers flow from joint representation? Query: What possible benefits can flow from joint representation?
Holloway v. Arkansas Questions Why was Supreme Court willing to engage in presumption of conflict? Did Supreme Court did find actual conflict? How did D show he was prejudiced under specific facts of this case? What should trial court have done in face of trial counsel’s request?
Other Sources of Conflict: Exercise Multiple representation of codefendants might provide one source of conflict, as seen in Holloway Identify at least two other fact patterns in which a potential conflict exists
Active Conflict Issue: Does trial judge have affirmative duty to inquire into facts surrounding each multiple representation case? Issue: If D does not object at trial, what is D’s burden on appeal Cuyler v. Sullivan
Mickens v. Taylor [Supplement]: Questions for Review How limit Holloway? What is the role of Strickland? Sullivan? Following this case, how would you define “conflict” so as to trigger automatic reversal? Are all conflicts equal? What is the role of successive representation?
Cooperating Lawyers Burger v. Kemp Risk of prejudice increases when 2 lawyers cooperate with one another in planning and conducting trial strategy
Other Induced Ineffectiveness Impairing Defense Strategy Brooks v. Tennessee: D either had to testify first or not at all Herring b. New York: No right to D closing argument in trial to court
Other Induced Ineffectiveness Inhibiting Consultation Geders v. United States: D kept from talking with trial counsel during 17-hour overnight recess Perry v. Leeke: D kept from talking with lawyer during 15 minute recess
Other Induced Ineffectiveness Interfering with Relationship Weatherford v. Bursey: Co-D becomes gov’t witness
Perjury Focus: What obligations does D counsel face when she believes her client is about to commit perjury? Focus: How does the perjury possibility play out with Ineffective Assistance claims under Strickland?
Nix v. Whiteside Issue: Under Strickland is there a modified test for presuming prejudice? Issue: Was lawyer ineffective under these facts?
More Difficult Questions What if client was not dissuaded and demands to testify What if client appears dissuaded but once on stand, lies What if lawyer does not become aware of perjury under after client has testified
Ethical Obligation Model Rules: Mandatory for lawyer who knows client has committed perjury to disclose knowledge to tribunal if lawyer cannot persuade client to rectify problem
Selection Limitations No right to particular, specific lawyer Right to retain counsel of choice is qualified right Wheat v. United States Presumption in favor of D’s counsel of choice Presumption can be overcome if Demonstration of actual conflict Showing of serious potential for conflict Seizing Fees
Self Representation Faretta v. California Right not expressly stated in 6 th Amendment, but implied by structure Essence: D has protectable right of autonomy
Self-Representation and Competency Godinz v. Moran NOTE: More than “rational understanding” test for pleas or trial
Waiver Knowing and voluntary Detailed warnings Generally must be unequivocable
Remedy Per se reversal McKasle v. Wiggins Not harmless error analysis
Limitations Timeliness Order & decorum Witness Protection Standby Counsel
Basic Concepts General absence of constitutional and non-constitutional safeguards Relaxed evidentiary rules Identify of sentencer Texas option
Basic Concepts Prosecutor’s role Impact of Administrators Parole Board Probation Officers Systems Design Guidelines Ad Hoc Recidivists
Constitutional Limitations 8 th Amendment: Cruel and Unusual Punishment 1 st Amendment 5 th Amendment: Equal Protection
Cruel and Unusual 8th Amendment: Excessive bails should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted Typical Challenges Mandatory sentences Proportionality
Mandatory Punishments Rummel v. Estelle Ewing v. California (Supplement)
Proportionality Solem v. Helm factors Gravity of offense and harshness of penalty Other sentences imposed on other criminals in same jurisdiction Sentences imposed for commission of same crime in other jurisdictions
Proportionality Harmelin v. Michigan [plurality] Sentence which is not otherwise cruel and unusual does not become so merely because it is mandatory Scalia opinion: Proportionality not required Kennedy Opinion Fixing prison terms belongs to Legislature No one penological theory mandated by 8 th Amendment Federal system = divergence Objective factors should be identified, e.g., type of punishment imposed White Dissent: would be disproportionate
Other Remedies? Since Harmelin, proportionality attacks have rarely been successful Only focus: gravity of offense and harshness of penalty Alternatives: Clemency Media Legislature
Punishment Other than Incarceration Fines Relationship to Indigency Forfeiture Restitution Diversion Civil Commitment
Fines Equal Protection Impact May not imprison beyond maximum because D unable to pay fines and court costs Cannot imprison for failure to pay fine if fine is only possible punishment Motion to Revoke Probation: must consider alternative means
Forfeiture Civil and criminal Civil does not require conviction Criminal = in personam Civil = in rem Challenges 1 st Amendment 8 th Amendment 5 th Amendment
Forfetiure & 8 th Amendment Alexander v. United States United States v. Bajakajian
Probation / Diversion Often area of broad discretion for Judge “Contract” between Court and Judge Motion to Revoke Diversion increasing with drug courts and family violence courts
Restitution Increased use Response to crime victim’s movement
Civil Commitment: Insanity Permissible: Burden on D by preponderance to show no longer insane Confinement for more than maximum time of charged criminal offense Impermissible: Continued confinement once sanity restored
Federal Sentencing Guidelines Grid profiles of actual conduct and actual offender Departures Judge justification Appellate review Impact on parole
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