Key Issues in Criminal Procedure: Counsel, Conflicts, Sentencing, and Self-Representation

1. CRIMINAL PROCEDURE CLASS THIRTEEN

2. Today’s Topics: Counsel • Conflicts of Interest • Gov’t-Induced Ineffectiveness • Perjury • Selection Limits • Self-Representation

3. Today’s Topics: Sentencing • Basic Concepts • Constitutional Limitations • Punishment Options to Incarceration • Federal Sentencing Guidelines

4. Conflicts of Interest • Three prisms • Per se • Active • Waiver • Recall Strickland • Prejudice can be presumed if conflict

5. 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

6. Multiple Representation • Query: What evils or dangers flow from joint representation? • Query: What possible benefits can flow from joint representation?

7. 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?

8. 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

9. 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

10. 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?

11. Cooperating Lawyers • Burger v. Kemp • Risk of prejudice increases when 2 lawyers cooperate with one another in planning and conducting trial strategy

12. 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

13. 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

14. Other Induced Ineffectiveness • Interfering with Relationship • Weatherford v. Bursey: Co-D becomes gov’t witness

15. 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?

16. Nix v. Whiteside • Issue: Under Strickland is there a modified test for presuming prejudice? • Issue: Was lawyer ineffective under these facts?

17. 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

18. 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

19. 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

20. Self Representation • Faretta v. California • Right not expressly stated in 6th Amendment, but implied by structure • Essence: D has protectable right of autonomy

21. Self-Representation and Competency • Godinz v. Moran • NOTE: More than “rational understanding” test for pleas or trial

22. Waiver • Knowing and voluntary • Detailed warnings • Generally must be unequivocable

23. Remedy • Per se reversal • McKasle v. Wiggins • Not harmless error analysis

24. Limitations • Timeliness • Order & decorum • Witness Protection • Standby Counsel

25. SENTENCING Chapter Eleven

26. Basic Concepts • General absence of constitutional and non-constitutional safeguards • Relaxed evidentiary rules • Identify of sentencer • Texas option

27. Basic Concepts • Prosecutor’s role • Impact of Administrators • Parole Board • Probation Officers • Systems Design • Guidelines • Ad Hoc • Recidivists

28. Constitutional Limitations • 8th Amendment: Cruel and Unusual Punishment • 1st Amendment • 5th Amendment: Equal Protection

29. 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

30. Mandatory Punishments • Rummel v. Estelle • Ewing v. California (Supplement)

31. 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

32. 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 8th Amendment • Federal system = divergence • Objective factors should be identified, e.g., type of punishment imposed • White Dissent: would be disproportionate

33. Other Remedies? • Since Harmelin, proportionality attacks have rarely been successful • Only focus: gravity of offense and harshness of penalty • Alternatives: • Clemency • Media • Legislature

34. First Amendment • Hate Crimes • Son of Sam Laws

35. Equal Protection • Claim: • Discriminatory intent • Discriminatory effect

36. Punishment Other than Incarceration • Fines • Relationship to Indigency • Forfeiture • Restitution • Diversion • Civil Commitment

37. 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

38. Forfeiture • Civil and criminal • Civil does not require conviction • Criminal = in personam • Civil = in rem • Challenges • 1st Amendment • 8th Amendment • 5th Amendment

39. Forfetiure & 8th Amendment • Alexander v. United States • United States v. Bajakajian

40. 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

41. Restitution • Increased use • Response to crime victim’s movement

42. 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

43. Federal Sentencing Guidelines • Grid profiles of actual conduct and actual offender • Departures • Judge justification • Appellate review • Impact on parole