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May 8, 2013

"Federal Public Defense in an Age of Inquisition"

The title of this post is the title of this notable new article by federal public defender David Patton, which is now available via SSRN.  Here is the abstract:

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided.  It concludes that in many situations they do not; indeed, they often receive far worse.  Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process.

Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law.  This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.

May 8, 2013 at 11:04 PM | Permalink

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Comments

Again, I hate to point out the obvious from my high school education. The adversarial process is derived from the disputation method of trying to answer difficult question. It has no scientific validity. It does generate worthless government make work jobs for the lawyer profession and furthers its rent seeking ends. Because Scholasticism is a Church based philosophy, the adversarial system violates the Establishment Clause.

And what does the court look like, and how is the buffoon on the bench dressed, and where is the bench itself, the gavel, the windows, the seats for the audience, where have you seen those before. That's right, in church. Every aspect of the tribunal is in braze insurrection against the constitution of this secular nation.

It is often true that both prosecutor and defense lawyer are young, inexperienced, and stupid people from the middle of their classes. The most experienced, savvy person in the court, may well be the judge. The hierarchy has gagged him, and prevented him from any investigation at all. If a judge drives by the scene of a legal matter, it is grounds for impeachment according to the sicko, Twilight Zone, waking nightmare into which the lawyer profession has plunged the nation.

As to Gideon, the original verdict was correct. The Court used his case as a pretext to generate massive rent seeking. The slick criminal attorney he selected got him off, a clearly guilty man, with $23 in quarters on him, minutes after a cigarette machine had been broken into. His case ccupies a huge exhibit in Constitution Hall like the corpse of a saint in a church. It is actually a disgrace. I am going to lodge a formal complaint to take down this horrible tribute to a guilty, professional criminal.

Public defenders do not have a better track record than uneducated pro se criminal defendants at trial, with the same rates of innocent verdicts. They carry and try to sell the plea offer of the prosecution, often intimidating their client so they can rejoin the same prosecutor in a drink toasting to the stupidity of the public, including innocent crime victims.

Posted by: Supremacy Claus | May 9, 2013 12:20:03 AM

I do have significant problems with pretrial detention for any reason other than ensuring the defendant's presence at court proceedings. The complaints about sentencing severity and control of that instrument by prosecutors I really couldn't care less about, seeing as I believe most sentences (both federal and state) are far too lenient.

Posted by: Soronel Haetir | May 9, 2013 12:36:56 AM

Enforce the Bail Reform Act as it is written not as it has been applied. For example, it is not true that a person charged with a drug offense poses a risk of danger to the community, no matter how low-level or indigent he or she is. Eliminate mandatory minimum sentences. Require district judges to apply the factors enumerated in 18 USC 3553(a). Prohibit sentencing disparities based on the mere fact that a defendant asserts his constitutional right to go to trial. All of this would go a long way to bringing some fairness back into the system.

Posted by: Carmen Hernandez | May 9, 2013 5:53:58 AM

soon to be serving 6 years for downloading child porn. 18 months after first contact with police 1 file forensically found on my computer. i could go into more detail but i just wabted to say if someone looked into a movie company like disney or parmount and applied the current guidelines they would find that those movie company's would be sentenced to long terms. with movies like pretty baby with brook shields then 13 naked and many other facts. i was no threat for 18 months before being arrested and now have been in trail another 18 months and now have t go to prison for 6 years and all the way across the nation from oregon to pennsylvania because of ove crowding in low level prisons. thanks for your time and if you want more information please e-mail me and i will give all i can.

Posted by: keith h. jordan | May 9, 2013 6:21:15 AM

Keith: too late now. However, forget Disney and Brooke Shields. Always demand e-discovery of the prosecutor and of the judge's personal and work computers. Refer all child porn to the FBI for investigation. The government is the biggest downloader and subscriber to child porn.

E-discovery is justified by the improper motive for prosecution from the feminist biased hatred of all productive males. Start a website where the improper content of all prosecutor computers can be stored for others to use in subsequent cases (nice, lucrative business).

Posted by: Supremacy Claus | May 9, 2013 7:42:27 AM

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