Criminal Law @ Moritz College of Law

Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General

Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text.  I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs.  Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”  Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.  Jackson’s point was simple.  Violations of the law abound.  “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”  As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power.  Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law.  But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.”  Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.”  The only right answer is, “Because I should.”

Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation.  Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:

The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law.

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....

Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system.

The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.

Some surprising study tips via the New York Times

Especially as classes begin to speed up, all 1L students ought to be trying to figure out how develop efficient and effective law school study habits.  Helpfully, this recent article in the New York Times, which is headlined "Forget What You Know About Good Study Habits," reports on on what works well (and what may not work well) in study settings.  Here is an excerpt:

[T]here are effective approaches to learning, at least for those who are motivated.  In recent years, cognitive scientists have shown that a few simple techniques can reliably improve what matters most: how much a student learns from studying.

The findings can help anyone, from a fourth grader doing long division to a retiree taking on a new language.  But they directly contradict much of the common wisdom about good study habits, and they have not caught on.

For instance, instead of sticking to one study location, simply alternating the room where a person studies improves retention.  So does studying distinct but related skills or concepts in one sitting, rather than focusing intensely on a single thing....

[P]sychologists have discovered that some of the most hallowed advice on study habits is flat wrong. For instance, many study skills courses insist that students find a specific place, a study room or a quiet corner of the library, to take their work.  The research finds just the opposite.  In one classic 1978 experiment, psychologists found that college students who studied a list of 40 vocabulary words in two different rooms — one windowless and cluttered, the other modern, with a view on a courtyard — did far better on a test than students who studied the words twice, in the same room.  Later studies have confirmed the finding, for a variety of topics.

Varying the type of material studied in a single sitting — alternating, for example, among vocabulary, reading and speaking in a new language — seems to leave a deeper impression on the brain than does concentrating on just one skill at a time....

Cognitive scientists do not deny that honest-to-goodness cramming can lead to a better grade on a given exam.  But hurriedly jam-packing a brain is akin to speed-packing a cheap suitcase, as most students quickly learn — it holds its new load for a while, then most everything falls out....

When the neural suitcase is packed carefully and gradually, it holds its contents for far, far longer.  An hour of study tonight, an hour on the weekend, another session a week from now: such so-called spacing improves later recall, without requiring students to put in more overall study effort or pay more attention, dozens of studies have found.

No one knows for sure why.  It may be that the brain, when it revisits material at a later time, has to relearn some of what it has absorbed before adding new stuff — and that that process is itself self-reinforcing.  “The idea is that forgetting is the friend of learning,” said Dr. Kornell. “When you forget something, it allows you to relearn, and do so effectively, the next time you see it.”

So, it appears that there is some cognitive science to back up my advice that you re-read and re-read (and re-read some more) the cases and other materials we cover in class.  But now we all know that you ought to do your re-reading in a different room each time.  (I am now wondering if, in order to improve learning, we ought to meet in different classrooms on a regular basis.  At the very least, we definitely ought to start getting drinks at different watering holes on casual Fridays!)

Eager for student thoughts (or venting) about law school grading systems

We spent a little time during our casual moments talking about law school grading realities.  And, with finals coming soon, I suspect grades and grading systems may be especially on your mind this time of year. 

Of course, as fall semester 1Ls, you do not yet know how law school grading realities are directly likely to impact you because you've not yet even gotten a first set of grades.  But the very fact that you've not personally and directly experienced the Moritz grading system is why I would be grateful for some opining in the comments here about law school grading and curves and nerves and whatever other grading-related thoughts (or kvetching) you would like to share.

In addition to wanting our class members to talk about grading issues and concerns, I encourage everyone to share this link with other Moritz students and/or students at other law school.  Though lots of people worrying and talking about law school grades (including faculty members), I am often disappointed that few spend much time worrying and talking about how law school grading systems can be improved.

For some useful background reading and for another setting to share thoughts, check out this new post at the Law School Innovation blog.  You will see over there my own (crazy?) ideas for how I might create a law school grading system from scratch.

Thanks in advance for your thoughts and kvetches!

What did incoming 1Ls read this summer?

Last month when guest-blogging at Prawfsblawg, I pondered here about recommendations that might be made to incoming 1Ls about what to read the summer before starting law school.  I subsequently discovered that OSU has a very dated (and lengthy) suggested reading list, but I would be shocked (and a bit scared) if anyone read everything or even a lot of what appears on this list. 

To get a blog discussion going through some comments, I hope that any starting 1Ls coming to this blog will report (and perhaps review) whatever they read this summer in anticipation of law school.  (Importantly, "nothing" is an appropriate answer.)  To get us started, I'll report on two law-related books I read this summer:

• Primarily because the author sent me a free copy, I read Lawyer Boy by Rick Lax.  The book provide a (not very serious) discussion of recent 1L experiences as a midwestern law school.  I am sure this book won't replace OneL as the classic of this genre, but I am also sure the book was worth at least as much as I paid for it.

• On a more serious front, I also finally found time to read Legal Analyst: A Toolkit for Thinking about the Law by Ward Farnsworth.  Though not a quick read, time spent with this book is time well-spent to provide anyone and everyone with greater familiarity with ideas and concepts and terms that arise again and again throughout law school.

I also read lots and lots of newspaper articles, cases, briefs, blogs and law review articles this summer, but that's really my standard reading list for all seasons.