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August 12, 2015

"Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform"

The title of this post is the title of this interesting paper available via SSRN authored by Janet Moore, Marla Sandys and Raj Jayadev. Here is the abstract:

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration.  This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems.  After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives.

First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard.  Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy. 

August 12, 2015 at 10:47 AM | Permalink


I have repeatedly argued that every innocent defendant needs two lawyers. The first is the defense lawyer. The second is a lawyer malpractice specialist to daily terrorize the first to do his statutory duty to provide a vigorous defense.

Missing from the article.

1) If a defendant tries to participate in his own defense by asking for additional motions, the defense attorney laughs him off.

2) The defense will never attack the other side. The defense owes its job to the other side, not to the client. Clients who fire the lawyer are fungible. Deter the other side from a line of attack, the jobs dry up. ThThey will all get together after a case, and drink to the stupidity of the public.

3) It is inconceivable the defense will attack a judge, even if biased.

4) The defense knows malpractice suits have infinitely difficult barriers. They are 99.999999999% immune.

5) Salaried defense lawyers, carrying 200 cases, have no incentive to go to trial. Indeed, have an incentive to have a plea deal, because none of those cases are going away if one decides to go to trial. Private defense lawyers have a great incentive to go to trial. So the defendant must be careful about unwarranted case churning by his lawyer.

6) Public defenders serve as messengers for the prosecution. They sell and pressure innocent defendants to accept a plea to clear the case. Talk of justice is met with great derision and opposition.

Posted by: Supremacy Claus | Aug 13, 2015 8:36:28 AM

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