Saturday, June 18, 2011

J.D.B. v. North Carolina: Is the Supreme Court obsolete?

The recent Supreme Court case of J.D.B. v. North Carolina has generated all sorts of hoopla.  The Wall Street Journal Law Blog, for example, even claims that the ruling “expands juveniles’ Miranda rights”—an outcome that would be celebrated by some and condemned by others, no doubt.  A closer inspection, however, reveals that the case will have zero impact on juvenile rights, and, more significantly, that our Supreme Court is fast becoming obsolete in the area of constitutional criminal law.   

Thursday, June 16, 2011

The criminal defense lawyer

On a few occasions I’ve been asked: “How can you defend someone that you know is guilty?”  Sometimes the questioner is thoughtful and genuinely inquisitive, in which case I’m more than happy to give a serious and thorough explanation.  (For starters, I’m not arrogant enough to believe that I can know what really happened or who is really guilty.)  Other times the person is simply condemning me and my profession, and really isn’t asking a question at all.  These instances call for more creative answers, e.g., “I like putting ax murderers back on the street.”  But reprinted below—with permission, of course—is a slightly edited version of a list-serve post by a fiery drunk-driving defense lawyer, Michele Tjader.  Her eloquent rant captures, in many ways, the essence of the criminal defense lawyer’s role in our democracy.

Tuesday, June 14, 2011

Why judges shouldn’t give legal advice

The law on plea bargaining can vary wildly from state to state.  But in some states, judges are not allowed to participate in the plea bargaining process; instead, the prosecutor and the defendant (usually through defense counsel) are left to negotiate a deal.  If a deal is reached, it is presented to the judge; if no deal is reached, the case can be set for a jury trial instead.  But not all judges like to have trials, especially when they’ve got a lot of other cases on their docket or they want to be somewhere else—“Fore!”—instead.  So if plea negotiations bog down, a judge might subtly nudge one side or the other to get the parties closer to an agreement. 

Saturday, June 4, 2011

Does the jury find the defendant guilty, guiltier, or guiltiest?

In State v. Hansbrough, the prosecutor charged the defendant with first-degree murder.  When the case went to the jury for deliberation, they were given the option of convicting on that charge, as well as the “lesser included” charge of “felony murder.”  The jury eventually convicted the defendant of felony murder, but there was one problem: the judge never gave the jury a verdict form for the option of finding the defendant not guilty.  Instead, the judge only gave one option—guilty—on the felony murder charge.