Wednesday, March 29, 2006
Team 1/Chapter 7/Critical Thinking Questions
Your team must answer all the questions. All members must post comments. If other team members have already posted answers, you must find an article, summarize it and post the address for the article (url). To receive full credit, you must show substantial effort including detail, content, clearly written evidence of your analysis of the material and a writing style that makes your comments in a clear fashion.
# posted by dfreeman @ 5:31 AM 
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Hi team 1, I am going to attempt to answer question #5, but I'm a little stuck if anyone get this message please call 215-324-7504 or e-mail me rangegph19@aol.com so I can review some things from question #5
# posted by 
: 5:26 PM
: 5:26 PM
2. In what ways have contemporary decisions by the U.S. Supreme Court modified the original meaning of the Sixth Amendment? Is the original intent of the Sixth Amendment relevant in today’s world?
The Sixth Amendment in its original incarnation merely proscribed the court’s ability to deny a defendant access to a lawyer. It still left the burden of affording such a lawyer squarely on the shoulders of the accused. The 1930s saw a more liberal interpretation of this doctrine by providing indigent defendants in felony cases with legal counsel in federal courts. Those facing charges in state courts were still on their own unless they were charged with a capital offense. Finally the landmark case of Gideon v. Wainwright guaranteed the right of indigent defendants in felony cases to legal counsel, and the case of Argersinger v. Hamlin further provided counsel during the rest of the criminal justice process (interrogation, police lineups, preliminary hearing, first appeal, etc.)
The original intent of the Sixth Amendment is in no way relevant in today’s world. The criminal justice system has grown into such a Byzantine labyrinth of incomprehensible technical jargon that requires a trained legal profession to wade through. Even lawyers, trained legal professionals, who do not regularly practice criminal law can get completely lost in this legal morass. As the saying goes, “he who represents himself has a fool for a client.” The only possible way to ensure a fair trial is to provide both sides of the adversary system with the kind of criminal law specialist required to even understand let alone argue the law.
The Sixth Amendment in its original incarnation merely proscribed the court’s ability to deny a defendant access to a lawyer. It still left the burden of affording such a lawyer squarely on the shoulders of the accused. The 1930s saw a more liberal interpretation of this doctrine by providing indigent defendants in felony cases with legal counsel in federal courts. Those facing charges in state courts were still on their own unless they were charged with a capital offense. Finally the landmark case of Gideon v. Wainwright guaranteed the right of indigent defendants in felony cases to legal counsel, and the case of Argersinger v. Hamlin further provided counsel during the rest of the criminal justice process (interrogation, police lineups, preliminary hearing, first appeal, etc.)
The original intent of the Sixth Amendment is in no way relevant in today’s world. The criminal justice system has grown into such a Byzantine labyrinth of incomprehensible technical jargon that requires a trained legal profession to wade through. Even lawyers, trained legal professionals, who do not regularly practice criminal law can get completely lost in this legal morass. As the saying goes, “he who represents himself has a fool for a client.” The only possible way to ensure a fair trial is to provide both sides of the adversary system with the kind of criminal law specialist required to even understand let alone argue the law.
# posted by : 10:35 AM
: 10:35 AM
3. What factors hinder a defense attorney in his or her attempt to protect the rights of the defendant? Think of both system factors and individual ones.
Probably the biggest factor hindering a defense attorney in his attempt to protect the rights of the defendant is the defendant himself. Defendants, especially those with public defenders or court appointed attorneys, will often with hold key evidence, invent wild alibis, and generally be antagonistic toward their attorney. They often will not listen to advice regarding a guilty plea and don’t do well upon hearing they might likely be convicted.
The second largest factor is the structure of the criminal justice system itself. Defense attorneys must still work alongside with the rest of the court room work group (the prosecutor, the judge, etc.) but have the least amount of power within that group. Often they must “go along to get along” and are assessed by prosecutors in terms of their “reasonableness” by which they mean “willingness to cut a deal.” With little to no power in the system and a system that rewards attorneys who pressure their clients to plead guilty while punishing “antagonistic” or “unreasonable” attorneys with longer sentences for their clients, it’s not surprising that defense attorneys often seem to be working for the other side.
Probably the biggest factor hindering a defense attorney in his attempt to protect the rights of the defendant is the defendant himself. Defendants, especially those with public defenders or court appointed attorneys, will often with hold key evidence, invent wild alibis, and generally be antagonistic toward their attorney. They often will not listen to advice regarding a guilty plea and don’t do well upon hearing they might likely be convicted.
The second largest factor is the structure of the criminal justice system itself. Defense attorneys must still work alongside with the rest of the court room work group (the prosecutor, the judge, etc.) but have the least amount of power within that group. Often they must “go along to get along” and are assessed by prosecutors in terms of their “reasonableness” by which they mean “willingness to cut a deal.” With little to no power in the system and a system that rewards attorneys who pressure their clients to plead guilty while punishing “antagonistic” or “unreasonable” attorneys with longer sentences for their clients, it’s not surprising that defense attorneys often seem to be working for the other side.
# posted by : 10:35 AM
: 10:35 AM
5. Should all attorneys be required to provide pro bono defense for indigents? Would such activities improve the image of the bar? Would such activities be in the best interests of the defendants?
From a perspective of public perception, mandatory pro bono defense for indigents could only help the image of the bar. Certainly the image of a private attorney magnamoniously taking on the case of a poor, unfortunate defendant a la Perry Mason is preferable to the current image of the sleazy, slick haired defense attorney springing his client on a legal technicality or the red eyed, haggard broken frame of an overworked public defender buckling under his caseload.
However, such a program is not necessarily in the best interests of the defendant. Criminal law is an amazingly complex body of law that is constantly evolving and changing. It requires a frighteningly intense level of diligence and focus to keep current. A private attorney drawing up real estate contracts five days a week can hardly be expected to become an expert in criminal law in his spare time. Defendants would be much better served by public defenders, specialists in this field, with adequate funding, resources, and personnel.
From a perspective of public perception, mandatory pro bono defense for indigents could only help the image of the bar. Certainly the image of a private attorney magnamoniously taking on the case of a poor, unfortunate defendant a la Perry Mason is preferable to the current image of the sleazy, slick haired defense attorney springing his client on a legal technicality or the red eyed, haggard broken frame of an overworked public defender buckling under his caseload.
However, such a program is not necessarily in the best interests of the defendant. Criminal law is an amazingly complex body of law that is constantly evolving and changing. It requires a frighteningly intense level of diligence and focus to keep current. A private attorney drawing up real estate contracts five days a week can hardly be expected to become an expert in criminal law in his spare time. Defendants would be much better served by public defenders, specialists in this field, with adequate funding, resources, and personnel.
# posted by : 10:36 AM
: 10:36 AM
6. If you had been arrested, which would you rather have: a private lawyer or a public defender?
In general, I would greatly prefer a private lawyer. A private lawyer has vastly increased resources compared to a public defender which can be spent on expert witnesses, private detectives, etc. A private lawyer also isn’t hampered by the often staggering caseloads public defenders are all too often saddled with and could therefore focus more directly on my case. Since the private attorney is directly in my employ, as opposed to receiving funds from a third party irrespective of his performance, he would also have more incentive to put forth effort into my case.
There is one instance, however, in which I would prefer a public defender. If I knew I was guilty of a crime, and I knew the evidence was strong enough that a conviction was all but certain, I would prefer a public defender. In this instance a public defender would be preferable because of his tremendous experience in the plea bargaining procedure (since that unfortunately forms the majority of his work), and I would trust such a professional to secure me the best deal possible.
In general, I would greatly prefer a private lawyer. A private lawyer has vastly increased resources compared to a public defender which can be spent on expert witnesses, private detectives, etc. A private lawyer also isn’t hampered by the often staggering caseloads public defenders are all too often saddled with and could therefore focus more directly on my case. Since the private attorney is directly in my employ, as opposed to receiving funds from a third party irrespective of his performance, he would also have more incentive to put forth effort into my case.
There is one instance, however, in which I would prefer a public defender. If I knew I was guilty of a crime, and I knew the evidence was strong enough that a conviction was all but certain, I would prefer a public defender. In this instance a public defender would be preferable because of his tremendous experience in the plea bargaining procedure (since that unfortunately forms the majority of his work), and I would trust such a professional to secure me the best deal possible.
# posted by : 10:36 AM
: 10:36 AM
1. The public generally views defense attorneys as too zealous in their advocacy of obviously guilty clients, while many scholars portray an image of defense attorneys, particularly public defenders, as too willing to plead their clients guilty. What do you think? What evidence would you cite for either position?
It is the sworn duty of a defense attorney to zealously represent their clients interests. I don’t think an attorney can be too zealous in their advocacy, even in the service of obviously guilty clients. Many of our most important protections and civil liberties have developed out of the defense of reprehensible human beings. The ubiquitous Miranda warnings (right to remain silent, right to an attorney, etc.) were created because of Ernesto Miranda, an admitted serial rapist. The adversary system only works when both sides, prosecution and defense, passionately pursue their agendas. It is in the dynamic tension between these two that justice is found.
With regards to public defenders alleged willingness to plead their clients guilty, this is clearly both true and unfortunate. The entire plea bargain system is the classic example of a compromise where neither party gets what they want. Ideally, each accused individual would have their day in court so that the truth could win out. With the mammoth caseloads facing today’s courts, this is simply not possible. The plea bargain process is the only thing we have to address this situation. As such, the best most public defenders can offer most of their clients is an advantageous plea, regardless of their innocence or guilt. This is unfortunate, and clearly not an optimal system, but the blame should not be placed on the attorneys. They are simply doing the best they can in a flawed system.
It is the sworn duty of a defense attorney to zealously represent their clients interests. I don’t think an attorney can be too zealous in their advocacy, even in the service of obviously guilty clients. Many of our most important protections and civil liberties have developed out of the defense of reprehensible human beings. The ubiquitous Miranda warnings (right to remain silent, right to an attorney, etc.) were created because of Ernesto Miranda, an admitted serial rapist. The adversary system only works when both sides, prosecution and defense, passionately pursue their agendas. It is in the dynamic tension between these two that justice is found.
With regards to public defenders alleged willingness to plead their clients guilty, this is clearly both true and unfortunate. The entire plea bargain system is the classic example of a compromise where neither party gets what they want. Ideally, each accused individual would have their day in court so that the truth could win out. With the mammoth caseloads facing today’s courts, this is simply not possible. The plea bargain process is the only thing we have to address this situation. As such, the best most public defenders can offer most of their clients is an advantageous plea, regardless of their innocence or guilt. This is unfortunate, and clearly not an optimal system, but the blame should not be placed on the attorneys. They are simply doing the best they can in a flawed system.
# posted by : 11:42 AM
: 11:42 AM
Question #5
Should all attorney's be required to provide pro-bono defense for indigents? Would such activities improve the image of the bar? Would such activities be in the best interest of the defendents.
All attorney's should not be required to provide pro-bono defense for indegents. As stated in chapter 7, "there in no guarantee that the lawyer selected is qualified for the dynamics of a criminal trial", which would be inviolation of the Sixth Amendment, some attorney's may not be able to defend the indigent with proper resources, it maybe timely because they are not familar with criminal defense cases, which may cause misrepresentation and a unfair judgement of the defendent.
This type of activity would harm the bar because attorney's are suppose to be available to establish the best representation for their client and also to gain repeated business, for all attorney's to do pro-bono cases would not allow attorney's fair representation, because of lack of resources and time. The spread of attorney's are diversified, each has their own speciality, pro-bono stipulating to their speciality service should be limited, all cases do not require representation, some are misdeamnors cases, attorney's could be handling more serious cases as per fee, we are all humans, fee for service is not a crime. Attorney's have to support themselves as well as their families, they can not survive on pro-bono cases (food on the table).
Pertaining to the best interest of the defendents, probono attorney's depending on the pick, whether it's the young starting out for recognition or the experience, could be harmful to the indigent in a since, the young is eager to present himself, not so much the case for recognition. The unexperience will gather information that he thinks is pertinent to the defendent's case, but merely evidence to look good in the eyes of the court with hopes of being successful, which is in violation of the Sixth Amendment, it's not fair and a misrepresentation of counsel could cause unfair judgement of the client. The experience, although familar with the indigent cases may feel an in just to himself, this experienced attorney could be getting fee for service, but yet understands the client rights to counsel which coincides with the Sixth Amendment.
In conclusion if all attorney's should be responsible to do pro-bono caes it should be stipulated as to how many cases annually and the importance of a case. Attorney's should be able to determine their own pro-bono cases and not be appointed. For example the move A Time To Kill. A young white attorney was approached by a poor black male up for murder charges for killing of two white males for the rape of his daughter, this was one of the biggest cases in Mississippi, the young attorney choose to take the case knowing that there would be limited resources, with these circumstances the attorney represented a poor black male on murder charges with feelings it was in his constitutional rights to represent this client to the best of his ability, maybe for recognition or possibly fairness of his client being represented properly for a fair judgement. Indigents should not be doing crimes and expect representation pro-bono to defend their act. If the laws would be more strict on pro-bono cases, maybe there would be less indigents, because they would know the Sixth Amendment has stipulations pertaining to the importance of cases.
Should all attorney's be required to provide pro-bono defense for indigents? Would such activities improve the image of the bar? Would such activities be in the best interest of the defendents.
All attorney's should not be required to provide pro-bono defense for indegents. As stated in chapter 7, "there in no guarantee that the lawyer selected is qualified for the dynamics of a criminal trial", which would be inviolation of the Sixth Amendment, some attorney's may not be able to defend the indigent with proper resources, it maybe timely because they are not familar with criminal defense cases, which may cause misrepresentation and a unfair judgement of the defendent.
This type of activity would harm the bar because attorney's are suppose to be available to establish the best representation for their client and also to gain repeated business, for all attorney's to do pro-bono cases would not allow attorney's fair representation, because of lack of resources and time. The spread of attorney's are diversified, each has their own speciality, pro-bono stipulating to their speciality service should be limited, all cases do not require representation, some are misdeamnors cases, attorney's could be handling more serious cases as per fee, we are all humans, fee for service is not a crime. Attorney's have to support themselves as well as their families, they can not survive on pro-bono cases (food on the table).
Pertaining to the best interest of the defendents, probono attorney's depending on the pick, whether it's the young starting out for recognition or the experience, could be harmful to the indigent in a since, the young is eager to present himself, not so much the case for recognition. The unexperience will gather information that he thinks is pertinent to the defendent's case, but merely evidence to look good in the eyes of the court with hopes of being successful, which is in violation of the Sixth Amendment, it's not fair and a misrepresentation of counsel could cause unfair judgement of the client. The experience, although familar with the indigent cases may feel an in just to himself, this experienced attorney could be getting fee for service, but yet understands the client rights to counsel which coincides with the Sixth Amendment.
In conclusion if all attorney's should be responsible to do pro-bono caes it should be stipulated as to how many cases annually and the importance of a case. Attorney's should be able to determine their own pro-bono cases and not be appointed. For example the move A Time To Kill. A young white attorney was approached by a poor black male up for murder charges for killing of two white males for the rape of his daughter, this was one of the biggest cases in Mississippi, the young attorney choose to take the case knowing that there would be limited resources, with these circumstances the attorney represented a poor black male on murder charges with feelings it was in his constitutional rights to represent this client to the best of his ability, maybe for recognition or possibly fairness of his client being represented properly for a fair judgement. Indigents should not be doing crimes and expect representation pro-bono to defend their act. If the laws would be more strict on pro-bono cases, maybe there would be less indigents, because they would know the Sixth Amendment has stipulations pertaining to the importance of cases.
# posted by : 7:31 PM
: 7:31 PM
Since all of the "Critical Thinking" questions have been answered, I will summarize an article. The article that I have chosen is, "NEW STANDARD IS SET FOR CRIMINAL JUSTICE IN MONTANA", which can be found at: http://www.nlada.org/News/NLADA_News/2006021056027385 on the "National Legal Aid and Defender Association" website.
On June 9, 2005, in Helena, MT, The National Legal Aid & Defender Association (NLADA) celebrated the creation of The Montana Public Defender Act of 2005, which for the first time in Montana’s history, would provide a statewide public defender system. According to the NLADA, this new system will “dramatically improve the criminal justice system in Montana, making it safer and more efficient for all residents.”
The former Montana indigent defense service suffered from “serious deficiencies”, and was forced to change after pressure from the NLADA after their discovery of these inadequacies.
NLADA’s incoming president and CEO, Jo-Ann Wallace says that she hopes Montana’s reform will become a model for other states to correct their criminal justice systems, and commends Montana’s government for “creating a system that will protect the right to counsel for every resident of Montana”.
In a 2002 class-action lawsuit filed by the American Civil Liberties Union, the NLADA “concluded that Montana did not meet the majority of nationally recognized standards for the delivery of indigent defense services, including the American Bar Association’s Ten Principles of a Public Defense Delivery System which “exist[s] to help all states address the concerns most central to safeguarding the Constitutional rights of all Americans”. These ten principles “state that a public defense delivery system must contain the following elements in order to deliver effective, efficient, high quality, ethical, and conflict-free representation”. The ten principles are as follows:
1. The public defense function, including the selection, funding, and payment of defense counsel, is independent.
2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after clients’ arrest, detention, or request for counsel.
4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
5. Defense counsel’s workload is controlled to permit the rendering of quality representation.
6. Defense counsel’s ability, training, and experience match the complexity of the case.
7. The same attorney continuously represents the client until completion of the case.
8. There is parity between the defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.
9. Defense counsel is provided with and required to attend continuing legal education.
10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.
(American Bar Association Resolution 107, adopted February 5, 2002).
By adopting these ten principles into their legislature, Montana will be able to offer more support and better services to their impoverished citizens who cannot afford legal representation. Hopefully, this will work as planned and will compel other states to reevaluate their public defense system.
On June 9, 2005, in Helena, MT, The National Legal Aid & Defender Association (NLADA) celebrated the creation of The Montana Public Defender Act of 2005, which for the first time in Montana’s history, would provide a statewide public defender system. According to the NLADA, this new system will “dramatically improve the criminal justice system in Montana, making it safer and more efficient for all residents.”
The former Montana indigent defense service suffered from “serious deficiencies”, and was forced to change after pressure from the NLADA after their discovery of these inadequacies.
NLADA’s incoming president and CEO, Jo-Ann Wallace says that she hopes Montana’s reform will become a model for other states to correct their criminal justice systems, and commends Montana’s government for “creating a system that will protect the right to counsel for every resident of Montana”.
In a 2002 class-action lawsuit filed by the American Civil Liberties Union, the NLADA “concluded that Montana did not meet the majority of nationally recognized standards for the delivery of indigent defense services, including the American Bar Association’s Ten Principles of a Public Defense Delivery System which “exist[s] to help all states address the concerns most central to safeguarding the Constitutional rights of all Americans”. These ten principles “state that a public defense delivery system must contain the following elements in order to deliver effective, efficient, high quality, ethical, and conflict-free representation”. The ten principles are as follows:
1. The public defense function, including the selection, funding, and payment of defense counsel, is independent.
2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after clients’ arrest, detention, or request for counsel.
4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
5. Defense counsel’s workload is controlled to permit the rendering of quality representation.
6. Defense counsel’s ability, training, and experience match the complexity of the case.
7. The same attorney continuously represents the client until completion of the case.
8. There is parity between the defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.
9. Defense counsel is provided with and required to attend continuing legal education.
10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.
(American Bar Association Resolution 107, adopted February 5, 2002).
By adopting these ten principles into their legislature, Montana will be able to offer more support and better services to their impoverished citizens who cannot afford legal representation. Hopefully, this will work as planned and will compel other states to reevaluate their public defense system.
# posted by : 7:44 AM
: 7:44 AM
After reading two articles about reforming the three strike laws, one by Edwin Meese, "Three strike" Laws Can Prevent Crime" (Greenhaven Press 1998)and Ryan King and Marc Mauer's "Three Strike Laws Should Be Reformed" (Greenhaven Press 2004). Four questions were posed. What are the positive and negatives of using the "three strike" laws?, has the law actually helped to stop career criminals form committing more crimes?, how has the law helped to stop crimes?, and should the law be used in both serious and petty criminal cases where the offender have committed numerous crimes in the past?
Some positive aspect of the "three strike" law is that, repeated felons will be given stiff sentences for their third offences. Incarcerating these offenders will keep them off the streets and away from society for a minimum of twenty-five years to life, this can be used as a strong deterrence against committing that third crime. Some negative aspects of the "three strike" law are sometimes the third offence could be as little as stealing a pack of donuts from a candy store. In Meese's article it states the case of the homeless man who was arrested for trying to "jimmy a door of a church kitchen to enter and get somehting to eat."
The "three strike" law have not and will not stop criminals from committing criminal acts. According to King Mauer, there are two sides to the debate, over rather the drop in the crime rate have been contributed to the "three strike" law. One argument is when social economics have jobs available and there is employment opportunities, the crime rate has decreased, and when the unemployment rate is high, the crime rate increases.Also the welfare and education programs that have helped low income people and worked as a deterrence from criminal activities are no longer in place.
With the third strike being considered and the possibility of being incarcerated for twenty-five years to life, it has made some criminals in certain age groups think twice about committing the third offence. Also being incarcerated for at least twenty-five years, society hope is that, the "burn out" effect of a middle aged criminal will be a factor. These tougher sentences also acts as a deterrent for other criminals following in the footsteps of their partners in crime.
The debate over the "three strike" law, when used for minimal crimes or petty thefts, such as taking a six pack of beer or even a few packs of cigarettes, which is condsidered to be a minor offense, should have legistors reconsidering revising the "three strike" law. Being in agreement with a law such as the "three strike" law, that incarcerates hardened criminals and put predators behind bars for a minimum of twenty-five years could be an effective step in dealing with repeated felons.
Some positive aspect of the "three strike" law is that, repeated felons will be given stiff sentences for their third offences. Incarcerating these offenders will keep them off the streets and away from society for a minimum of twenty-five years to life, this can be used as a strong deterrence against committing that third crime. Some negative aspects of the "three strike" law are sometimes the third offence could be as little as stealing a pack of donuts from a candy store. In Meese's article it states the case of the homeless man who was arrested for trying to "jimmy a door of a church kitchen to enter and get somehting to eat."
The "three strike" law have not and will not stop criminals from committing criminal acts. According to King Mauer, there are two sides to the debate, over rather the drop in the crime rate have been contributed to the "three strike" law. One argument is when social economics have jobs available and there is employment opportunities, the crime rate has decreased, and when the unemployment rate is high, the crime rate increases.Also the welfare and education programs that have helped low income people and worked as a deterrence from criminal activities are no longer in place.
With the third strike being considered and the possibility of being incarcerated for twenty-five years to life, it has made some criminals in certain age groups think twice about committing the third offence. Also being incarcerated for at least twenty-five years, society hope is that, the "burn out" effect of a middle aged criminal will be a factor. These tougher sentences also acts as a deterrent for other criminals following in the footsteps of their partners in crime.
The debate over the "three strike" law, when used for minimal crimes or petty thefts, such as taking a six pack of beer or even a few packs of cigarettes, which is condsidered to be a minor offense, should have legistors reconsidering revising the "three strike" law. Being in agreement with a law such as the "three strike" law, that incarcerates hardened criminals and put predators behind bars for a minimum of twenty-five years could be an effective step in dealing with repeated felons.
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شركة تنظيف مساجد بالرياض
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