CRIMINAL PROCEDURE
CLASS THIRTEEN
Today’s Topics: Counsel
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Conflicts of Interest
Gov’t-Induced Ineffectiveness
Perjury
Selection Limits
Self-Representation
Today’s Topics: Sentencing
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Basic Concepts
Constitutional Limitations
Punishment Options to Incarceration
Federal Sentencing Guidelines
Conflicts of Interest
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Three prisms
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Per se
Active
Waiver
Recall Strickland
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Prejudice can be presumed if conflict
Multiple Representation
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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
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Query: What evils or dangers flow from
joint representation?
Query: What possible benefits can flow
from joint representation?
Holloway v. Arkansas
Questions
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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
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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
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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
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How limit Holloway?
What is the role of Strickland? Sullivan?
Following this case, how would you
define “conflict” so as to trigger
automatic reversal?
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Are all conflicts equal?
What is the role of successive
representation?
Cooperating Lawyers
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Burger v. Kemp
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Risk of prejudice increases when 2 lawyers
cooperate with one another in planning
and conducting trial strategy
Other Induced Ineffectiveness
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Impairing Defense Strategy
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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
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Inhibiting Consultation
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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
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Interfering with Relationship
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Weatherford v. Bursey: Co-D becomes
gov’t witness
Perjury
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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
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Issue: Under Strickland is there a
modified test for presuming prejudice?
Issue: Was lawyer ineffective under
these facts?
More Difficult Questions
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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
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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
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No right to particular, specific lawyer
Right to retain counsel of choice is
qualified right
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Wheat v. United States
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Presumption in favor of D’s counsel of choice
Presumption can be overcome if
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Demonstration of actual conflict
Showing of serious potential for conflict
Seizing Fees
Self Representation
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Faretta v. California
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Right not expressly stated in 6th
Amendment, but implied by structure
Essence: D has protectable right of
autonomy
Self-Representation and
Competency
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Godinz v. Moran
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NOTE: More than “rational understanding”
test for pleas or trial
Waiver
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Knowing and voluntary
Detailed warnings
Generally must be unequivocable
Remedy
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Per se reversal
McKasle v. Wiggins
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Not harmless error analysis
Limitations
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Timeliness
Order & decorum
Witness Protection
Standby Counsel
SENTENCING
Chapter Eleven
Basic Concepts
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General absence of constitutional and
non-constitutional safeguards
Relaxed evidentiary rules
Identify of sentencer
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Texas option
Basic Concepts
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Prosecutor’s role
Impact of Administrators
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Parole Board
Probation Officers
Systems Design
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Guidelines
Ad Hoc
Recidivists
Constitutional Limitations
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8th Amendment: Cruel and Unusual
Punishment
1st Amendment
5th Amendment: Equal Protection
Cruel and Unusual
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8th Amendment: Excessive bails should
not be required, nor excessive fines
imposed, nor cruel and unusual
punishments inflicted
Typical Challenges
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Mandatory sentences
Proportionality
Mandatory Punishments
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Rummel v. Estelle
Ewing v. California (Supplement)
Proportionality
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Solem v. Helm factors
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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
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Harmelin v. Michigan [plurality]
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Sentence which is not otherwise cruel and unusual
does not become so merely because it is
mandatory
Scalia opinion: Proportionality not required
Kennedy Opinion
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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
Other Remedies?
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Since Harmelin, proportionality attacks
have rarely been successful
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Only focus: gravity of offense and
harshness of penalty
Alternatives:
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Clemency
Media
Legislature
First Amendment
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Hate Crimes
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Son of Sam Laws
Equal Protection
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Claim:
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Discriminatory intent
Discriminatory effect
Punishment Other than
Incarceration
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Fines
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Relationship to Indigency
Forfeiture
Restitution
Diversion
Civil Commitment
Fines
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Equal Protection Impact
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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
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Civil and criminal
Civil does not require conviction
Criminal = in personam
Civil = in rem
Challenges
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1st Amendment
8th Amendment
5th Amendment
Forfetiure & 8th Amendment
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Alexander v. United States
United States v. Bajakajian
Probation / Diversion
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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
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Increased use
Response to crime victim’s movement
Civil Commitment: Insanity
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Permissible:
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Burden on D by preponderance to show no
longer insane
Confinement for more than maximum time
of charged criminal offense
Impermissible:
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Continued confinement once sanity
restored
Federal Sentencing Guidelines
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Grid profiles of actual conduct and
actual offender
Departures
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Judge justification
Appellate review
Impact on parole