Free Justice

Free Justice ◽  
2020 ◽  
pp. 24-56
Author(s):  
Sara Mayeux
Keyword(s):  
New York ◽  
Legal Profession ◽  
Public Prosecutor ◽  
Law Firms ◽  
Public Defender ◽  
Legal Aid ◽  
Criminal Courts ◽  
The Public ◽  
Indigent Defense ◽  
Private Charity

This chapter describes Progressive Era debates within the legal profession over proposals to establish a “public defender” in the criminal courts—a public official who would represent criminal defendants and counterbalance the public prosecutor. It describes different versions of the public defender idea, as developed by California lawyer Clara Foltz, New York lawyer Mayer Goldman, and the prominent Massachusetts lawyer Reginald Heber Smith, author of Justice and the Poor. Leaders of the bar, often affiliated with corporate law firms, expressed concerns that the public defender represented a step towards socialization of the legal profession. Instead, they preferred to handle indigent defense and other forms of legal aid through private charity. In 1917, New York lawyers rejected proposals for a government-controlled public defender and instead established a criminal branch of the Legal Aid Society.

Local Injustice

Free Justice ◽  
2020 ◽  
pp. 151-180
Author(s):  
Sara Mayeux
Keyword(s):  
Mass Incarceration ◽  
Local Communities ◽  
Public Defender ◽  
Legal Aid ◽  
Criminal Courts ◽  
Public Defenders ◽  
The Public ◽  
Indigent Defense ◽  
War On Crime ◽  
The Government

With snapshots of Massachusetts and Mississippi, among other examples, this chapter continues to trace how the implementation of Gideon v. Wainwright fell short of expectations in local communities. In particular, it examines some of the efforts funded by the National Defender Project, an initiative of the Ford Foundation and the National Legal Aid and Defender Association (NLADA). This initiative funded the establishment and expansion of public defender offices around the country. Yet many challenges remained. Criminal defendants themselves complained that public defenders did not sufficiently understand their circumstances—spurring new experiments like the “community defender,” a new model of public defender with stronger ties to the neighborhoods where many defendants lived. By the early 1970s, as indigent defense reformers continued to navigate these challenges, the government had declared “War on Crime” and criminal caseloads had begun to rise—early harbingers of the phenomenon later labelled mass incarceration. Over the course of the twentieth century, lawyers had coalesced in theory around the idea of the public defender as a means to guarantee equality in the criminal courts, but remained unsuccessful at fully implementing that idea around the country.

From Charity to Right

Free Justice ◽  
2020 ◽  
pp. 57-85
Author(s):  
Sara Mayeux
Keyword(s):  
Due Process ◽  
Public Support ◽  
Fourteenth Amendment ◽  
Public Defender ◽  
Criminal Trials ◽  
The Public ◽  
Indigent Defense ◽  
Private Charity ◽  
The 1950S ◽  
Constitutional Right

Using a case study of Massachusetts, this chapter traces a shift between the 1930s and the 1950s in how elite lawyers framed the problem of indigent defense—from a problem for private charity to a constitutional right requiring public support. By the 1930s, lawyers in several cities had established voluntary defender organizations as a private charitable alternative to the public defender. Meanwhile, a series of Supreme Court cases, interpreting the due process requirement of the Fourteenth Amendment, steadily expanded the constitutional right to counsel in criminal trials, culminating in the 1942 decision of Betts v. Brady. Voluntary defenders typically had volatile funding, and lawyers increasingly worried that these private organizations lacked adequate resources to fulfill the expanding constitutional mandate to provide counsel for indigent defendants. By the 1950s, many lawyers worried that private charity was inadequate to satisfy a constitutional right, and increasingly viewed the public defender as preferable to the voluntary defender.

Introduction

Free Justice ◽  
2020 ◽  
pp. 1-23
Author(s):  
Sara Mayeux
Keyword(s):  
Mass Incarceration ◽  
The United States ◽  
Public Defender ◽  
Criminal Proceedings ◽  
Public Defenders ◽  
The Public ◽  
Indigent Defense ◽  
Private Charity ◽  
The Supreme Court ◽  
The 1960S

Today, thousands of public defenders around the United States represent indigent defendants in criminal proceedings. At a moment of widespread concern about mass incarceration and racial and class inequality, public defenders are seen both as participants in, and adversaries of, the carceral state. The introduction to this book provides an overview of how public defenders became so widespread in American courtrooms. At the turn of the twentieth century, many elite lawyers expressed skepticism about the public defender. They posited that the legal profession should remain independent from the state as much as possible, and that indigent defense was better handled by private charity. They established voluntary defender organizations. But by the 1960s, prevailing views had changed. Many elite lawyers now endorsed the public defender, especially after the Supreme Court decided the landmark case of Gideon v. Wainwright, which expanded the Sixth Amendment right to counsel. The book argues that these developments can be explained by shifts in liberalism and how lawyers conceived of the profession’s place within liberal democracy.

A Permanent Crisis

Free Justice ◽  
2020 ◽  
pp. 117-150
Author(s):  
Sara Mayeux
Keyword(s):  
Plea Bargaining ◽  
Public Defender ◽  
Legal Aid ◽  
Public Defenders ◽  
Indigent Defense ◽  
Private Charity ◽  
The 1960S ◽  
Trial Advocacy ◽  
Reform Organizations

This chapter traces the rocky implementation of Gideon v. Wainwright between 1963 and 1973, continuing the Massachusetts case study begun in chapter 2 and also addressing developments in Philadelphia and other localities. Although states could technically comply with Gideon in a variety of ways (e.g. appointing private counsel case-by-case),many lawyers and reform organizations interpreted Gideon as a broader mandate to establish and expand institutionalized public defender offices. The Ford Foundation and the National Legal Aid and Defender Association (NLADA) embarked upon the National Defender Project, an ambitious nationwide effort. As a result of such efforts, the 1960s witnessed change and growth in public defender offices around the country. In Massachusetts, for example, the organization initially founded as a voluntary defender was converted from a private charity into a statewide public defender agency, hired dozens of new lawyers, and was soon handling tens of thousands of cases each year. Yet, criticisms quickly emerged that public defenders had overwhelming caseloads and resorted too often to plea bargaining, rather than trial advocacy. Reformers diagnosed a new problem, the “indigent defense crisis” that persists today.

Democratic Justice

Free Justice ◽  
2020 ◽  
pp. 86-116
Author(s):  
Sara Mayeux
Keyword(s):  
New York ◽  
Public Defender ◽  
Way Of Life ◽  
Defense Attorneys ◽  
The Public ◽  
Criminal Defense ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Individual ◽  
The Cold War

In contrast to earlier periods when elite lawyers expressed skepticism of the public defender, this chapter describes the Cold War moment when elite lawyers, like the New York lawyer Harrison Tweed, celebrated the public defender as central to the “American way of life.” By the 1950s, lawyers and political leaders touted the rights that U.S. Constitution afforded to criminal defendants as hallmarks of democracy. These rights were thought to exemplify democratic regard for the individual, in contrast to the state-dominated show trials that symbolized totalitarianism. Within this context, criminal defense attorneys were rhetorically celebrated and the public defender was reframed from a harbinger of socialism into an anticommunist figure. In 1963, the Supreme Court issued its landmark decision in Gideon v. Wainwright, further enshrining the constitutional right to counsel. Gideon held that the Sixth Amendment requires states to provide counsel to indigent defendants in all serious felony trials. The decision was celebrated and chronicled in the widely read book by journalist Anthony Lewis, Gideon’s Trumpet, and the Ford Foundation announced ambitious plans for a nationwide initiative to expand public defender offices.

scholarly journals WINNING AT ALL COSTS TOO COSTLY S v Rozani; Rozani v Director of Public Prosecutions, Western Cape 2009 1 SACR 540 (C)

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Suhayfa Bhamjee
Keyword(s):  
Justice System ◽  
The State ◽  
Public Prosecutor ◽  
Western Cape ◽  
Criminal Courts ◽  
The Public ◽  
Pro Bono ◽  
Just Society ◽  
General Standard

The role of the public prosecutor is one to be respected. Members of society expect to enjoy lives free of violence, theft and other criminal violation; in return, they surrender the exercise of “vengeance” and vigilantism to the state. The public prosecutor (inter alia) is entrusted with the duty of ensuring that justice is served in bringing transgressors to book. The public prosecutor thus has the onerous task of ensuring that the rights of victims are served and given a voice, but at the same time doing so in a manner which upholds the basic tenets of a free, fair and just society. The duty and role of the defence attorney (state appointed or otherwise) ismuch the same. He or she is expected also to serve justice by giving his or her client (paying or pro bono) the best service and defence he or she is capable of. Obviously, this does not mean conjuring up or “manifesting” a defence. But he or she must, at the very least, prevent his or her client from pleading guilty to an offence where one was not committed. The recent decision in Rozani (2009 1 SACR 540 (C)) makes it evident that the fulfilment of such goals and ideals is not easy. The legal profession has gained a rather dubious reputation, attracting epithets such as “con-artist”, “shyster”, “opportunist” and “shark”, amongst others. The perception that individuals join the profession only to make a “quick buck” has stuck and the case at hand certainly seems to show this, reflecting not only a callous disregard for justice, but also what is blatant incompetence on the part of both the prosecutor and the defence attorney. Reading the facts of the matter, one wonders about the general standard of lawyers entering the profession – one cannot but marvel at the farcical aspect of the facts in Rozani. The main objective of practitioners within a criminal justice system should not be to win at all costs, but rather to ensure that justice is served. The facts leading up to the review in Rozani reflect the prosecutor’s need to chalk up wins and the defence attorney’s need to meet fee targets at whatever cost. The decision and remarks from the bench form a sobering commentary on the state of the criminal courts and the pursuit of justice in South Africa. While the level of crime in this country bolsters the need to convict criminals, this provides no excuse for disregarding the basic tenets of justice.

“Heard It Through the Grapevine”: Chinese Walls and Former Client Confidentiality in Law Firms

2000 ◽  
Vol 59 (2) ◽  
pp. 370-389
Author(s):  
Harry Mcvea
Keyword(s):  
Public Policy ◽  
Legal Profession ◽  
Law Firms ◽  
Law Firm ◽  
Policy Issues ◽  
The Public ◽  
House Of Lords ◽  
The Impact

The article addresses the public policy issues associated with former client confidentiality and law firm mergers and, in the light of these, it examines the claim, endorsed by City firms and others, that market-based solutions, such as Chinese walls, promote the interests of the profession without imperiling the interests of justice. The House of Lords' ruling in Prince Jefri BolkiahV. KPMG and Laddie J's interpretation of it in YoungV. Robson Rhodes are analysed with the aim of assessing the impact of both decisions on the above claim and their consequences for the legal profession generally.

Free Justice

2020 ◽  
Author(s):  
Sara Mayeux
Keyword(s):  
Legal Profession ◽  
The United States ◽  
Public Defender ◽  
Deep Roots ◽  
Public Defenders ◽  
The Public ◽  
The Government ◽  
The 1960S ◽  
The Right ◽  
Corporate Lawyers

Every day, in courtrooms around the United States, thousands of criminal defendants are represented by public defenders--lawyers provided by the government for those who cannot afford private counsel. Though often taken for granted, the modern American public defender has a surprisingly contentious history--one that offers insights not only about the "carceral state," but also about the contours and compromises of twentieth-century liberalism. First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state. Public defenders took hold in some localities but not yet as a nationwide standard. By the 1960s, views had shifted. Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and it chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms.

Sign in / Sign up

Export Citation Format

Share Document