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Introduction to Symposium on DOMA and Issues Concerning Federalism and Interstate Recognition of Same-Sex Relationships
Get PDFDrowning Policies: A Proposal to Modify the Dublin Agreement and Reduce Human Rights Abuses in the Mediterranean
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The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California
Get PDFOur adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will best promote the ultimate objective that the guilty be convicted and the innocent go free. The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise of effective representation by a well-prepared and experienced defense counsel, supported by defense investigators, experts, and other resources needed to mount an effective defense. Yet recent empirical research undertaken by the author for the California Commission on the Fair Administration of Justice (Fair Commission) portrays a discouraging reality that is often far different from this theoretical model.
Part II of this article describes the methodology used to collect the data reported in this article, and Part III gives an overview of some of the most significant findings arising from the research conducted for the Fair Commission. Parts IV through VI report details of our survey of California\u27s institutional public defender, contract defender, and assigned counsel systems. Part VII examines the funding for indigent defense services, revealing the disparity between counties and the disparity in resources between prosecution and defense. Part VIII discusses California judicial decisions that found ineffective assistance of counsel and looks at the types of errors that are most frequently made. These cases are individually detailed in Appendix II. Part IX presents a number of solutions to help alleviate some of the systemic problems that contribute to the ineffective assistance of counsel in California. Part X concludes by listening to the voices of those public defenders and private criminal defense attorneys who responded with comments about the system they live, breathe, and work in on a daily basis
Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores
Get PDFSince the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge a potential conflict with the Seventh Amendment, the decision inescapably interprets Federal Rule of Civil Procedure 8 in a manner that is unconstitutional when measured against the traditional (and continuing) interpretation of the Seventh Amendment-the so-called historical test.
The collision between Iqbal and the Seventh Amendment, simply stated, is that under the historical test it is unconstitutional to give a judge the power to weigh the factual heft of a complaint at the outset of a civil case and to dismiss it as insufficient. Yet, that power is precisely what the Iqbal Court held was a permissible mechanism for controlling frivolous litigation.
Part I of this Article traces the development of the pleading standards from writs to Rule 8 to Iqbal. Part II demonstrates that under the historical test, Iqbal\u27s interpretation of Rule 8 is unconstitutional- at least in cases to which the Seventh Amendment applies
