CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 15, 2006

New Article Spotlight: Structural Reform in Criminal Defense

From University of Michigan Law School CrimProf Eve L. Brensike recently released "Structural Reform in Criminal Defense." Here is the abstract:

Criminal defense representation faces two problems that may share one structural solution. First, there is no effective remedy for defendants whose trial attorneys are incompetent. Defendants typically must complete their appeals before being permitted to challenge their trial attorneys' performance on collateral review. With appeals often taking four or more years, most defendants have served their sentences and have little incentive to pursue collateral challenges.

There is no realistic opportunity of success, because defendants have no right to counsel on collateral review, and the delay makes it difficult to gather evidence of ineffectiveness. Thus, forcing defendants to wait until collateral review to challenge trial attorney performance creates a right to effective trial counsel that has no corresponding remedy.

A second structural problem arises at the appellate level. Appellate attorneys file briefs asking to withdraw from representation in over thirty percent of cases in some jurisdictions, because they cannot find issues worth raising.

Most jurisdictions confine appellate review to matters that appear on the face of the trial record. As a result, when trial attorneys fail to preserve issues, appellate attorneys do not have grounds for appeal. Because all defendants are constitutionally entitled to appellate counsel, defenders are often forced to file frivolous briefs or seek withdrawal. The result is an enormous waste of the funds that states invest in appellate representation.

In this Article, I analyze both problems and propose a structural solution – namely, a mechanism through which appellate attorneys may open the trial record in limited circumstances to raise ineffective assistance of trial counsel claims. In addition to ameliorating the trial problem by giving defendants a realistic opportunity to challenge trial attorney performance, such a restructuring would reduce the waste of public resources by assigning a more constructive role to appellate defenders now consigned to raising meritless issues. [Mark Godsey]

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I recently attended a conference on Death Row: An Innocent Man's Remarkable Story of Survival featuring Juan Melendez. He endured the ultimate nightmare as an INNOCENT man sentenced to death. He spent nearly 18 years on Florida's death row before his exoneration and release. Although free he was not able to prove ineffective assistance although because of his final appeal, a tape of the real killer confessing of the killing two months after Juans arrest, was found in the files of his original public defender. The public defender withheld this crucial evidence deliberatly and paid no consequences for his actions.
I find this kind of action on behalf of the judicial system pathetic, disgraceful, and simply unlawful. The system used a group of words to justify the attorney's actions as to say, fu** you, so what, kiss my a**! I have absolutely no respect for the United States Judicial system, only because of their tactless, untruthful performance. They act as to uphold the law, breaking it to do so.

I am also under the thumb of this tactless, untruthful judicial system. I am waiting for my habea corpus (ineffective assistance)trial date to only be cheated once again. I served my time in full but I will not quite the fight to expose the unfair, unprofessional lies that go on in the courtrooms of the Santa Fe, New Mexico jurisdiction.
I continue to yearn for the respect of the law and it's courts. I pray that in my lifetime the system takes a good look at their ways and for the sake and respect of it's people, change their ways as to act accordingly and by the law.
Respect is earned!

Posted by: Andrew Dennis | Nov 17, 2006 9:31:19 AM

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