Week Fourteen, Part 6 - Crim: Demolish the Truth-tellers

In Criminal Procedure, we fly by four topics: police line-ups, prosecutorial discretion, grand juries, guilty pleas. Zoom!

Professor Tex Dutile asks, “Suppose you as a lawyer have a client scheduled to appear in a lineup. The victim has described the suspect as having long hair and a mustache. Is it ethical to have your client – the suspect – to cut his hair and shave?”

Most students argue it’s unethical. Dutile listens as he leans against the far wall, arms crossed. He doesn’t respond to any of the points raised; he only calls on more students to get new points of view. Finally he asks, “Isn’t that the defense lawyer’s obligation – to preclude the jury from making unfavorable assumptions?”

We chafe a bit.

“How about this,” he says. “One of our alums represented the defendant in an assault case. At trial, the prosecutor was at one table, the defense lawyer and suspect at another, the victim was testifying. She ID’s the defendant. ‘That’s the guy who did it.’ Then our alum calls the suspect to the witness stand. ‘Who are you?’ he asks the suspect. ‘I'm John Smith, brother of the defendant.’ The judge is absolutely livid. He demands to know why the lawyer did this. The lawyer says he was seeking to obviate the inevitable prejudice against the defendant.”

Dutile laughs. “The judge held the lawyer in contempt of court and threw him to jail.” He pauses, waiting for the class to quiet down. “But isn’t that the job of a defense lawyer in an adversarial system – to demolish the truth-tellers?”

We move on to the screening and charging process. Dutile tells the class that a prosecutor exercises discretion all the time, especially as to what charges to bring and what plea bargains to offer. He reminds us that “in merry old England, citizens could bring prosecutions.” And he says, anyone can file a complaint before a federal magistrate. “Theoretically, a citizen could force a prosecution to be brought,” he says.

As for grand juries, Dutile says that in the federal system, they’re made up of up to 23 members. It can be fewer than that, but you still need 12 affirmatives, what would be a majority of 23. We learn that that after a grand jury makes a decision, they have either “returned a true bill" or "no billed it."

Dutile asks, “Is the grand jury a good thing or a bad thing? Well, on the federal level, it’s one more piece of wisdom on the part of the people who drafted the Constitution. Although expensive, redundant, cumbersome, and sometimes out of control, it’s most important in its potential role – a body of citizens standing between us and the sovereign.” He concludes, “And it’s one of the few ways that a citizen can participate in process... other than as a victim.”

We laugh.

Lastly we discuss guilty pleas. In Boykin v. Alabama, the Supreme Court held that it was error for the trial judge to accept the defendant’s guilty plea without an affirmative showing that it was intelligent and necessary.

“I must know the charges against me, the consequences of my plea, and the rights that I am waiving,” Dutile says, as if he’s the criminal. “I must plead affirmatively on the record. Not by implication. Not by inference. Not by innuendo. Not by suggestion. ”

He reflects for a moment. “Nowadays it takes longer for a plea than a trial.”

In some jurisdictions, Dutile says, 90 percent of the convictions come through pleas. “It’s a common misunderstanding that guilty pleas show repentance. They don’t. It just means the defendant was smart enough to know that a plea would get him five years less.”

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Week Fourteen, Part 5 - Legal Writing: The Grinch Who Stole Thanksgiving

It’s our last legal writing class of the semester and Professor Teresa Phelps gives each 1L a parting gift: the take-home, final exam.

Phelps explains that the test is “closed universe.” All the facts, case law, and relevant statutes are included. We will not need any outside research.

I thumb through the thick packet of paper. Under “Facts,” a diagram of a traffic accident catches my eye. Two dots show “places where Lenhardt was hit – by car 1 and car 2.”

The case law section is intimidating: 72-pages long and single-spaced. Yikes! The 16 cases come from a variety of jurisdictions, both federal and state. “Johnson v. Brown, 77 Nev. 61, 359 P.2d 80 (1961)” reads the first citation. Old case, I think. The second one, Gibb v. Cleave, reaches back even further: 1936.

Next I skim the three statutes. “Right of Way – Public Roadway.” “Wrongful Death Liability and Damages.” “Comparative Negligence.”

I wonder, Am I ready for this? Of course! A lawyer-to-be is always ready. Like canned ham.

I predict it will take five hours to read everything once. Another five or so to figure out the legal problems. Five more to write the office memo. Two hours on the client letter. Another couple on the court memo. Five hours to revise. A full day of life – 24 hours – given to Phelps and Notre Dame Law School.

In class we review the basics of an office memo, client letter, and court memo.

“Do them as a set,” Phelps says. “And do them by yourself. A fresh eye to proofread for typos is okay, but anything more is an honor code violation.”

She tells us to use our planning strategies such as the revision checklist. “Use the writing process to exercise control over the product.”

Phelps adds, “Be confident. Most writers are somewhat insecure. Writing is one of the few things that forces us to put ourselves on the line in a personal, ego-connected way. Confidence in writing is critical for a professional.”

She reminds us, “The law is all language. Learn the importance of individual words. Today the dockets are so crowded that the amount of oral argument is way down. Cases get settled on the basis of writing.”

Phelps flashes a double-dimple smile. “It’s a struggle now, but when you get hired, your writing will be well above the level of a first-year associate.”

Class ends and we file into the hallway. I’m between two girls who talk across me.

“What’s Phelps so chipper about?” one grumbles. “She just stole Thanksgiving.”

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