Access to Justice and Technology For Indigent Criminal Defendants By Harry J. Jacobus III

2. Access to Justice and Technology For Indigent Criminal Defendants By Harry J. Jacobus III

3. Barriers for Criminal defendant • Biased judge • Unprepared defense counsel • Inadequate resources • Very difficult to prove ineffective counsel • (1) objectively poor representation • (2) outcome would have been different

4. “Do Justice” • Prosecution has duty to do more than seek conviction • Duty comes from prosecution's vast resources + • Most criminal defendant’s are poor • Case law • Ethical rules

5. Prosecutorial Powers • Evidence gathering/investigative powers • More money • Discretion charging suspects with crimes • Pretrial incarceration which could lead to: • Loss of employment • Embarrassment • Loss of reputation • Financial costs

6. “With great power comes great responsibility”

7. In addition • Prosecution represents “the people” • Which includes the defendant • Role has been described as “Quasi Judicial”

8. Prosecutor Duty Pre-trial

9. Charging Decisions • Constitution: Minimal standard of “probable cause” • Defined as: “heightened suspicion” • Dangers: political pressure • Personal aspirations • Conviction psychology

10. ABA Prosecution Standard • Higher than constitutional standard • “sufficient evidence to support conviction” • Discretionary rule

11. Possible solutions • Make ABA rule mandatory • Provide for additional sanctions: • Fines • Suspensions • Judicial admonshment

12. Disclosure Rules • Brady v. Maryland: must disclose “favorable material evidence” • Applicable regardless of good faith/bad faith • Must provide evidence even if not asked for • Affirmative duty to seek out evidence from detectives/police (no ignorance)

13. Model rule 3.8 • Broader than Brady: not limited to “exculpatory evidence” • Must disclose impeachment evidence • However, rule is aspirational not mandatory • “Law and Order” example possible

14. Possible solution • New rule made enforceable by court: • (1) disclose any change in circumstances not reasonably discoverable by defendant and; • (2) not require the prosecution to divulge information that impeaches the defendant

15. More Barriers • No civil remedy for Defendant • No criminal consequences • Even in cases where prosecutorial misconduct found few prosecutors actually punished

16. Prosecution Duty During Trial

17. Inherent Conflict of interest • Must the prosecutor step in when: • Judge is unfairly biased • Defense counsel is hostile towards defendant • Defense counsel is inadequate • Should he “pull punches” • Make motion to the court?

18. No clear rule here • Must “zealously represent client” or put on best case • Must also ensure “justice is done” • Putting innocent in jail conflicts with “justice” • Some Prosecutors will take advantage of situation • Others hold themselves to higher standard

19. Access to Technology

20. Types of Technology • DNA Technology • Ms. PowerPoint • Sanction II

21. How technology helps • Efficiency in pre-trial preparation • Increased understanding of case by parties • Efficiency in managing court time • Efficiency in presentation of evidence • Increased understanding by jury and judge

22. Access for indigent defendants: • “Unfortunately, due to lack of finances, or politics, access to technology is lacking for public defense attorneys.”

23. Downside to Technology • Can be expensive in the beginning: Laptops, scanners, digital cameras, projectors, CD burners, software etc. • Requires certain degree of computer proficiency • More exposure to “Murphy's law”

24. DNA Technology • Most important because it is EVIDENCE • Given great weight by Jury & Judge • Almost Exclusive tool of prosecution/private defense lawyers • Technology very expensive + • Need expert to present evidence/prepare lawyer

25. DNA Cont. • Cost estimated at $10,000 to $30,000 • Difficult for defense to adequately cross without his own expert

26. MS PowerPoint • Ideal for “linear presentations” like: • Opening statements • Direct examinations • Closing argument

27. Outlines • Will never walk again • Cannot provide for family • Has lost health insurance • Is on public assistance • Needs costly nursing assistance

28. Photo Illustrations Shattered Pelvis Broken Spine “El Muerte” Stepped here

29. Continued Severed Spinal Cord Useless

30. Map Illustrations

31. 9300 South Halsted 9314 Tasty Good Jan 9, 10:40 PM 9400 N 9500 Alley 9600 9614 Mack’s Restaurant S 9700 9720 Eddie’s Service Station 9800 9900 Thompson Home 9940

32. Room Illustrations

33. Tasty Good Diner 10:30PM Sam Collins 10:40 Mike Miller Shirley Thompson Counter Stools Door Booths South Halsted S N

34. Pros/Cons • Pro: Easy to use • Many Uses • Pro: Inexpensive (approx $150) • Pro: Good graphics • Cons: Limited to Linear Presentations

35. Sanction II • Non linear format • Ideal for cross examination • Better use of video depositions • Easy viewing of Documents • Cons: expense ($600.00) • Cons: need training to use effectively

37. Effect of Unequal Resources • “Mere” unequal resources not a due process violation unless: • Enflames Jury passion/prejudice • Injects issue broader than guilt of D • Makes unreasonable arguments in light of evidence