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Posts tagged legal ethics
Public Defense Attorneys' Perception of Race and Bias National Survey Findings

By Sruthi Naraharisetti

In the wake of several high-profile systemic failures of justice for Black people in the last decade, there have been widespread demands for change against pervasive racial inequities throughout the criminal legal system. These failures include the killings by law enforcement1 of Tamir Rice, Michael Brown, George Floyd, and Breonna Taylor; the excessive use of confinement and untimely deaths of Sandra Bland and Kalief Browder; and the determination of the wrongful convictions of the Central Park 5. While much of the public discourse has focused on how law enforcement, prosecutors, judges, and correctional officers perpetuate racial biases, far less attention has been on how public defense attorneys do, as well. Recently, scholars have started examining how race affects legal representation in public defense. The Sixth Amendment to the United States Constitution guarantees the right to counsel in criminal cases and the Supreme Court has held that the government will provide a lawyer if a person cannot afford it. Each decision point of a public defense lawyer’s assistance is vulnerable to racial bias and the potential for long-lasting harm to clients. Despite calls from the American Bar Association's Standards for the Defense Function4 for defense counsel to be proactive in detecting, investigating, and eliminating improper biases, with particular attention towards historically persistent biases like race, achieving this standard has proven difficult. Often operating with limited time, resources, and information, public defense attorneys must make critical decisions relating to bail requests, case investigations, social service needs, plea negotiations, and trial strategies, among others. Recognizing the pivotal role that public defense attorneys play in addressing racial disparities that their clients face, our exploratory study seeks to create a basis of understanding for how attorneys consider race when working with clients, conceptualize their role in addressing racial inequity, and experience the impact of their own racial/ethnic identities in the workplace. By shedding light on these issues, we hope to encourage public defense attorneys to reflect on and discuss how racial bias within their field perpetuates systemic harm, ultimately paving the way for improvement in racial equity across the field. 

New York: Center for Court Innovation, 2024. 14p.

The Acquittal of Hakamada Iwao and Criminal Justice Reform in Japan By David T. Johnson

In September 2024, after 56 years under a sentence of death, Hakamada Iwao was acquitted in a retrial in Japan. This article summarizes what went wrong in his wrongful conviction case and what should be learned from it. The Shizuoka District Court’s retrial decision concluded that police and prosecutors conspired to frame Hakamada with evidence they had fabricated, but there is more to the case than that. This tragedy occurred because of mistakes and misconduct that were exacerbated by underlying weaknesses in Japan’s criminal process. To prevent a recurrence, many things need to change in Japanese criminal justice. The conclusion identifies five priorities for reform.

The Asia Pacific Journal | Japan Focus Volume 22 | Issue 11 | Number 3 | Article ID 5872 | Nov. 30, 2024

Attorney-Client Relationships in a Criminal Court in Santa Clara County, California

By Anthony Duarte, Sophia Hunt, and Matthew Clair

This report describes—and offers recommendations for improving—the quality of attorney-client relationships in a criminal courthouse in Santa Clara County, California. We draw on in-depth interviews and ethnographic observations collected between July 2021 and June 2022 from the Hall of Justice, one of four state courthouses in Santa Clara County that deals with adult criminal cases. Interviews with a diverse sample of 37 defendants suggest that they hold mostly positive views of their relationships with defense attorneys, though such perceptions vary by type of counsel and income. Moreover, among those who hold positive perceptions of their current defense lawyers, some defendants expressed negative attitudes toward, and recounted negative experiences with, current and previous lawyers. Ethnographic observations of public court proceedings further reveal recurring negative attorney-client relationship attributes, including silencing and sidelining, miscommunication, brevity of interaction, and cooperation with the state (or, coercion). We conclude with several immediate and long-range suggestions for improving the quality of defense provision in the county.

Court Listening Project, Report no. 2. Court Listening Project ((c/o Matthew Clair, Stanford University) 2022. 25p.

Unleashing Rule 5.1 to Combat Prosecutorial Misconduct

By R. Michael Cassidy

Disciplining individual prosecutors will never be enough to overcome the multifarious incentives prosecutors have to cut corners to secure convictions. Although bar discipline against prosecutors is increasing in frequency, professional regulators tend to focus on individual actors rather than paying attention to systemic failures.

No single instance of prosecutorial misconduct—revealed perhaps by the reversal of a criminal case or the exoneration of an innocent defendant—can ever be fully explained by the deeds of a lone actor without looking at who establishes enforcement priorities, who sets office policies, and who does the training. Leaders in the office are usually involved, either by omission (failing to catch an error) or commission (creating an office culture where ethical lapses are tolerated or even encouraged).

The predominance of collective action and shared responsibility in business organizations often makes it difficult to pinpoint criminal liability. That challenge is addressed through the “responsible corporate officer” doctrine in criminal law, which holds executive-level individuals accountable for the wrongdoing to which they contributed, whether through commission or omission. Prosecutor’s offices are organizations with structures and incentives not dissimilar to that of a corporation. Because existing frameworks for addressing prosecutorial misconduct in the criminal justice system are ineffective, bar regulators should borrow from the responsible corporate officer doctrine by more aggressively enforcing Rule 5.1 of the Rules of Professional Conduct.

The notion that supervisory attorneys must be more actively involved in their colleagues’ ethical decisions and conduct has been recognized by the bar since the adoption of ABA Model Rule 5.1 in 1983, but the rule remains undertheorized by scholars and underutilized by disciplinary authorities. This article draws on important parallels between the responsible corporate officer doctrine and Rule 5.1 to explain why enforcement of professional discipline against leaders in a prosecutor’s office is necessary to incentivize more rigorous supervision and training. The author scrutinizes two recent cases in Colorado and Massachusetts where bar regulators have successfully utilized Rule 5.1 to discipline leaders in a prosecutor’s office for failing adequately to supervise the conduct of junior associates. The author then advocates for an even more expansive use of Rule 5.1 to force head prosecutors to adopt written, transparent, and publicly available policies and procedures. Finally, the author discusses three recurring and highly intractable problems of prosecutorial discretion that could benefit from comprehensive office policy manuals: grand jury practice, disclosure of exculpatory evidence; and use of cooperating witnesses.

Oregon Law Review, Vol. 102, 2024, Boston College Law School Legal Studies Research Paper No. 614, 37 p