Criminal Procedure II- bail to Jail Professor Jacobs



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Criminal Procedure II- Bail to Jail

Professor Jacobs





  1. Systems for Providing Counsel



  1. Different Systems Available

  2. Appointment of private attorney to the case: either unpaid volunteer or small compensation

  3. Appointed by judge and work on a case by case basis

  4. In New York , these are 18b- assigned counsel system. You apply and are put on roster, assigned by judge. $1500 max for felony

  5. If we require every lawyer to do some 18b work- get non-qualified people, won’t care

2. “Organizational” defenders- organizations of full time defense attorneys

  1. Public defenders- full or part time salaried staff

  2. Can be autonomous or be run by an individual appointed by the governor

  3. appointed by board of directors, court of governor and can choose subordinates

  4. New York- legal aid society- outside board- handles about ½ our cases, other ½ go to assigned counsel.

  5. pg 67- 76% of inmates in state correctional facilities were represented by a public defender or assigned counsel.

  6. Majority of criminal defendants in this country receive their attorney through a public defenders office. (85)

  7. Can also be contract attorney systems: agreements with private firms, etc. to handle indigent defendants for a certain amount of time. (We have this in NY as well)

  8. ABA discourages these based on a fixed price for a time period. They like contracts to have specifications of attorney qualifications, workloads, and amount of support systems.

  9. Without this, there is incentive to plead out cases- more cases handled, less time spent on each




  1. Cases

  2. State v. Leonard Peart

  3. held that the services being provided for indigent defendants in New Orleans were so inadequate that defendants who must depend on them were unable to receive the effective assistance of counsel as guaranteed by the constitution.

  4. allowed those inmates making effective assistance of counsel claims to have a rebuttable presumption that they are not receiving adequate counsel

  5. Factors considered: **high number of cases public defender handles at a time, number of trials assigned to, no investigative support, no expert witnesses, poor library, etc.

  6. Ct says that reasonably effective assistance of counsel means that the lawyer not only possesses skill and knowledge, but also that she has the time and resources to apply that skill and knowledge to the task of defending each of her clients.

  7. ABA standards say that defense counsel should not carry a workload that interferes with rendering quality representation. Set recommendations for the number that each can take- 440 misdemeanors/year, 150 non-capital felonies. (86)

  8. When effectiveness is challenged of the system, the caseload of the attorneys is always the key variable. (85)

2. State v. Delbert Lynch

  1. 2 attorneys bring claim that they are not adequately compensated for their work- for death penalty case, they would only be receiving between 9- 15$/hr.

  2. Ct states that the maximum statutory fee is inadequate compensation. States that there should be a hearing for the attorney to show cause why can not accept the a appointment to represent an indigent defendant.

  3. reasons why they shouldn’t represent an indigent defendant: not qualified, conflict of interest, so repugnant that lawyer would not be able to do the job

  4. Idea is that this should be the state’s burden- and not one of the private bar

  5. Ct sets guidelines for compensating these appointed attorneys- equaling their pay to the salary range paid to the assistant district attorneys- also these attorneys should be compensated for out of pocket expenses.

  6. dissents focus on that this in not a taking of property without due process, doesn’t like the solution the majority comes up with- concurrence states that the legislature needs to address this

  7. Book states that layers raising these types of challenges have met with modest but consistent success- it is considered a due process or takings clause violation. Challenging the system of appointments as a whole usually fails (87)

3. Problem 1-4: Flat Fee for Services

  1. Pay attorneys a flat fee regardless of how many events the attorney must participate in.

  2. This will speed up the docket- attorneys will pressure clients to plead guilty.

  3. Problem 1-5 Neighborhood Defender

  4. Shifts focus from trial prep, to the investigatory stages of the proceedings.

  5. Each client is represented by a team of attorneys, and not just one.- use a lot of non-lawyers

  6. Policy Points

  7. Total resources available for investigation and prosecution of crime are greater than those available to the defense. These resources for prosecution and police are increased, without increasing for defense. Society has no great desire to fund these services.

  8. Casper’s study- 30% of defendant’s with public defenders spent less than ten minutes with their attorneys.

  9. There is poor salary, burnout, etc.

  10. Again- do public defenders encourage people to plea- remember, they have to move the cases




  1. Appointing, Selecting and Rejecting Counsel

  2. Types of Charges Necessary to Evoke Right to Counsel

  3. 6th Amendment states that in all criminal prosecutions, the accused shall enjoy the right to the assistance of counsel for his defence.

  4. Early case: Powell v. Alabama (1932)

  5. 9 black men, charged with raping white women- no one was prepared to defend the case- all were convicted

  6. Supreme Court- appointment of a primary defense lawyer, was a requirement of due process

  7. Defendant’s don’t know law of evidence, convicted upon incompetent evidence, etc.

  8. Betts v. Brady: (1942) held that counsel would be constitutionally require only under special circumstances.

  9. here, the defendant was not appointed counsel. Elected to plead guilty, and no jury trial.

  10. He examined his own witnesses, didn’t testify and was convicted. Court held that this was not a violation of his due process rights.

  11. Gideon v. Wainwright (1963)

  12. Defendant was denied counsel, and therefore presented his own defense- convicted 5 year sentence

  13. Already been the practice that in federal courts counsel must be provided for indigent defendants- unless they waive that right Johnson v. Zerbst (17)

  14. Ct holds that the right to counsel is a fundamental right- lawyers are necessities, not luxuries- holds that 14th Amendment incorporates 6th Amendment to states

  15. Concurrence believes that Betts should also be overruled, yet just showed how courts continually eroded the special circumstances test

  16. In re Advisory Opinion to the Governor

  17. cites Argensinger: clarifies Gideon- says that the logic applies to any criminal trial where the defendant could be deprived of his liberty

  18. Scott v. Illinois- Supreme Court - held that the right to counsel requires only that no indigent defendant be sentenced to prison unless he has counsel.

  19. Nichols v. United States- Sup. Ct decided that sentencing court may consider a defendant’ s prior uncounseled misdemeanors when determining sentencing- even if enhances sentence

  20. Some states have gone the other way- remember- states can go further in interpreting rights than federal court

  21. Florida Rule of Crim. Pro- 3.111: codifies the idea that counsel shall be provided in all prosecutions for offenses punishable by imprisonment.

  22. Rule is- Provision of counsel is required for any defendant charged with a felony, or for any defendant charged with a misdemeanor that results in imprisonment- even if less than 6 months

  23. State statute can expand the range of cases in which counsel is necessary

  24. Trial judge determines indigency- factors include debts, assets and employment status

  25. Jacobs says we do it on an honor system- they fill out some forms

  26. Federal standards- person financially unable to obtain adequate representation

a. But what is indigency? Do we consider income alone? Or assets?

  1. Experts

  2. Ake v. Oklahoma- state must provide indigent defendant with access to psychiatrist once defense has made showing that sanity is a significant issue at trial- this right is guaranteed through due process, and not through 6th Am.

  3. Non -psychiatric experts- only when indigent defendants have made a particularized showing of the need for assistance.

  4. When does the right to counsel Attach?

  5. 5th Amendment right to counsel- recognized in Miranda v. Arizona- right to counsel arises whenever the police conduct a custodial interrogation. Often arises before 6th Am. Right to counsel.




  1. The rule: The Constitutional right (to counsel) applies only after the initiation of an adversarial proceeding, and only at a critical stage of those proceedings

  2. Hamilton v. Alabama- all jurisdictions, US Sup Ct say that it attaches by the time of arraignment.

  3. Joy Friedman v. Commissioner of Public Safety

  4. arrested for DWI- not allowed to contact her attorney before intox. Test

  5. Court cites federal precedent- guarantees the right to counsel at those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. (US v. Ash)

  6. these points are called critical stages- found that the submission to a chemical test is a critical stage- triggers right to counsel- because it produces substantive evidence that can be used against the defendant at trial

  7. Said that the defendant was confused, looked for advice- that is counsels job- not cops

  8. Dissent says that the language of the 6th Amendment only applies to criminal prosecutions, not pre-trial proceedings. 5th Amendment rights might have been implicated here. Also, thinks that the court is giving DUI arrestee’s privileges, that other defendants subject to search don’t get

  9. The rule: The Constitutional right applies only after the initiation of an adversarial proceeding, and only at a critical stage of those proceedings.

  10. this right includes representation at preliminary hearings (Coleman v. Alabama) Does not begin with arrest or probable cause hearing

  11. State constitutions usually allow for counsel at first appearance before magistrate- once the right attaches, it applies to every stage of the criminal proceedings

  12. Some states have read their constitutions to allow for counsel even earlier than federal constitution- lineup, photo identification,e tc.

  13. Not usually entitled to counsel for providing handwriting samples, blood sample submission. Courts are mixed on when and if psyh. Exams are considered critical stages and thus mandate provision of counsel

  14. 6th Amendment apply to postconviction sentence hearings as well (Mempa v. Rhay)

  15. The right does not attach to appeals!!Due process and equal protection grant defendant the right to the first appeal. Also no right for counsel for habeus corpus.

  16. The right can be waived- must be knowing and voluntarily waived (Johnson v. Zerbst)

  17. Most states provide no counsel at the time of bail. Supp 152

  18. Selecting and Rejecting Counsel

  19. The 6th Amendment right to counsel includes the right to self representation (Faretta v. California)

  20. State v. Joseph Spencer

  21. appointed counsel over defendant’s objection- wanted to represent himself

  22. precedent allows the appointment of standby counsel- even if defendant objects- so judge doesn’t have to explain all the rules to the defendant

  23. Even if the standby gives bad advice, conviction can be upheld- most decisions severely limit standby counsel’s duties

  24. This case exemplifies that the judge in our system is passive- we could have a much more active judge- lawyers would be less important

  25. Ct says that the appointment was proper, because it was like standby counsel: cited factors like defendant had first hired counsel, who withdrew

  26. Dissent says- defendant wanted to represent himself, he was competent, he should have been able to do it. He made clear requests to represent himself- he should have been able to control his own defense, not the standby counsel. Should have known what the appointed counsel was limited to.

  27. Cts say that can waive counsel and represent self if defendant is told the risks of such strategy, knows the dangers. Jacobs asks- is this ever a good idea?

  28. An indigent defendant may not choose his appointed counsel.. If close to trial, court can even deny request to switch counsel.

  29. To replace an appointed attorney, the defendant has to prove that the attorney is incompetent in a constitutional sense- to replace retained attorney- you just fire- nothing that you have to show

  30. most states let law students represent indigent attorneys as long as the defendants are aware that their counsel is a student.

  31. Policy Points

  32. Should we have a system that is so complicated that the average person can not represent themselves?

  33. Why are private attorneys so desirable? You pay them, more attentive, lower case load, worried about reputation and getting new clients

  34. Public defenders- worried about moving cases

  35. 18 b lawyers- worry about making cases- moving them quickly to get more money

  36. What if they didn’t allow private lawyers? No longer would be a service for the poor- no stigma- socialization of the system

  37. Remember the constant conflict with public defenders- who do they work for? client, or their supervisor. They are judged by moving cases.

  38. Option to provide more services to fewer defendants- we could say no lawyers for misdemeanors- only for felonies




  1. Adequacy of Counsel

  2. Cases

  3. Strickland v. Washington

  4. defendant claims ineffective assistance of counsel

  5. Ct details that the attorney spoke with respondent about background, his wife and mother and also got his rap sheet excluded

  6. Standard: defendant must show that counsels performance was deficient and that this deficient performance prejudiced the defense. (see page 44)

  7. counsel’s performance must be reasonably effective and cannot fall below and objective standard of reasonableness and the defendant must show a reasonable probability that the outcome would have changed due to the deficient performance

  8. Find that the attorney’s performance was reasonable- omitted evidence would not have changed the outcome of the case- very deferential standard of review

  9. dissent: disagrees with using the objective standard of reasonableness- not specific enough- thinks that every defendant deserves a capable and zealous lawyer- finds that the attorney didn’t do enough discovery, etc. and would have improved defendant’s chances: with a cold record this is hard to be proven

  10. As Jacobs highlights- fair trial fair procedure is an end in itself- every defendant deserves a fair trial- even if guy is clearly guilty. Jacobs likes the idea that we have one trial- and that we do it right

  11. State v. Leslie Palmer

  12. agrees to plead guilty, get death penalty- no negotiations. (open plea) Later claims ineffective assistance of counsel




  1. Cite the Strickland standard as to prove claim, must fall below objective standard of reasonableness and so prejudiced the defendant as to deny him a fair trial: notes the strong presumption to finding an attorney’s strategic choices O.K.

  2. Jacobs questions if this standard is too low- yet cites a 2nd Circuit case in which there was ineffective assistance of counsel in which the defense attorney tells client about plea offer, yet offers no recommendation (Says this is a stretch)

  3. Note the decision to not pursue negotiations might be a trial strategy- counsel stated he expected mercy by the prosecution

  4. What happens in these ineffective assistance claims? Have a hearing with new lawyer and defendant, and essentially the prosecution is representing the old lawyer

  5. Forces the old lawyer to be the star witness, and the prosecution to work with former adversary

  6. Ct says that this is a matter of trial strategy./professional judgment- this is not incompetence even though it proved wrong in retrospect

  7. People v. Hattery: conceding client’s guilt in hopes of lesser sentence can not be deemed strategic or ok without client’s consent

  8. dissent: thinks that this represents total breakdown of the adversarial system- what did counsel do to protect client here? This can not be strategy- this was just stupid!

  9. United States v Cronic: Ct rejects a presumption of ineffectiveness when an inexperienced lawyer was appointed shortly before a complex case. (57) but denial of counsel at critical stage of trial, or if counsel fails to subject the prosecutions case to meaningful adversarial testing can build such a presumption.

  10. Also presume prejudice when there is a conflict of interest (Holloway v. Arkansas)- if the judge didn’t hold a hearing on it

  11. People v. Benevento

  12. defendant attacks a woman on Bleecker and confesses to police

  13. defense concedes assault but argues that defendant lacked requisite intent to deprive complainant of property: says defendant was too drunk for requisite intent

  14. defendant is convicted. CT holds that that defendant must show an absence of strategic or legitimate explanation for defense’s shortcomings

  15. Cites the Strickland federal standard

  16. New York standard: was conduct so egregious and prejudicial and error that defendant did not receive a fair trial?

  17. Still held that the defendant received effective assistance of counsel- even using Baldi test: defense used a common defense strategy

  18. General Points

  19. This claim is one of the most common legal challenges to convictions. Hard to win on- between 1970-83 study of 4,000 decisions showed a win rate of 3.9%

  20. Cts have even held that attorneys being drunk or asleep is not enough to deny ineffective representation of counsel- unless prove standard elements of the claim

  21. Cuyler v. Sullivan: Supreme Court states that private attorneys are to be judged by the same standards as public attorneys.

  22. ABA Defense Function Standards

  23. Should inform accused of his rights, file all good faith motions- like suppression, severance, dismissal, etc.

  24. a duty to investigate- all the circumstances, to secure info that police have

  25. duty to explore alternate methods to trial- divergence, or also pleas- must investigate facts before recommending a plea

  26. Ohio attempt to set standards for effectiveness of counsel

  27. requiring certain level of experience- ex: set number of trials for felonies, etc. before letting counsel be appointed to try murder cases

  28. same for felonies, so that assigned counsel have experience, that they have assisted counsel in other cases, etc. participated in training, etc.

  29. New York rejects the Strickland test

  30. The Ethics of Defending Criminals

  31. Speeches of Lord Erskine: advocate needs to defend, if not, he is assuming the character of the judge- sits in judgment. Ex: see 157 Supp. McVeigh’s lawyer says the same thing!

  32. The American Lawyer: makes the point that you as a lawyer doesn’t know if client is guilty until it has been determined so by the court

  33. ABA opinion: Totes value of adversary system which keeps us from judging before we know all the facts. Also the need for people to represent unpopular defendants

  34. Defending Guilty People: Idea that with representation of defense, improve truth finding process. Making sure that the state is playing fair, (also mentioned in class) we are a society that cares about individual’s rights and protects them.

  35. Is a lawyer bound to support and unjust cause?: you argue not your own opinion, but that of your client. Also, there is the dual role- you are still an officer of the court. Don’t bring suits to harass, mislead that judge, etc.

  36. Also- a lot of these ethics of defending criminals turn on the possibility that the defendant might be innocent.

  37. Random Jacob’s policy

  38. How workable is the Strickland test? IS every lawyer’s performance in a guilty plea deficient? See Palmer for example

  39. Jacobs thinks that alternatives to this passive judge method is more supervision by the trial judge during trial. Does not think that the Bar mechanism is a good one for keeping attorneys in line. Maybe a checklist for judges to ask attorneys- attorneys don’t like this- they argue, it’s an art, not a science

  40. additional strategies: prophylactic measures- not appointing incompetent counsel- second seating, CLE, etc.

  41. Jacobs think attorneys just don’t do enough- recognizes that judges are not experts in crim pro, slow down the trial, etc.

  42. Prosecutor is not an adversary. Administer of justice- want a fair trial

  43. bring this to judges attention, it is your judge

  44. You don’t want it reversed on appeal- watch out for justice

  45. Pre-trial Release and Detention

  46. Introduction

  47. Can occur at station house- where an official will set bail, or a few hours later before a judge or magistrate- initial appearance

  48. Might also be determined at a later preliminary hearing

  49. Means of reforming Bail: VERA Institute of Justice

  50. found that detainees are more apt to be convicted than if free on bail- receive stiffer sentences

1) Not able to assist defense in locating witnesses, etc.

  1. These people loose incomes, jobs, family ties. Support release on own recognizance

  2. determine their community roots, length of residency in city, criminal record family ties, job- verify defendants answers- these factors are supposed to ensure that defendants will appear in court

  3. Some serious offenders were not eligible for such release

  4. Follows the Bail Reform Act of 1966- which also stated that persons should not be needlessly detained before trial- non-capital cases, as long as there is reasonable assurance that the persons will return, they should be released. Considered factors such as nature of offense, weight of the evidence, family ties, employment, financial resources, mental health, convictions, general character, record, failure to appear record
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