{"id":1110,"date":"2012-03-15T21:23:10","date_gmt":"2012-03-16T01:23:10","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1110"},"modified":"2015-10-02T15:24:21","modified_gmt":"2015-10-02T15:24:21","slug":"flagrant-conduct-and-the-perfect-prosecution-part-1","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/03\/15\/flagrant-conduct-and-the-perfect-prosecution-part-1\/","title":{"rendered":"“Flagrant Conduct” and the Perfect Prosecution, Part 1"},"content":{"rendered":"

By David Yin<\/p>\n

<\/em>My colleague Peter Dunne\u00a0previously blogged<\/a>\u00a0about University of Minnesota Law professor\u00a0Dale Carpenter<\/a>\u2018s new book,\u00a0Flagrant Conduct<\/em><\/a>, on the\u00a0Lawrence v. Texas<\/em><\/a>\u00a0(2003) decision. (Full disclosure: I attend UMN myself, and in fact took\u00a0Constitutional\u00a0Law last semester with Prof. Carpenter). While both Peter and Prof. Mike Dorf\u00a0agree<\/a>\u00a0that the particular facts of a case perhaps\u00a0ought<\/em>\u00a0to matter less to the Supreme Court, for better or for worse that is not how the judicial branch works. The Supreme Court not only cannot issue advisory opinions on merely hypothetical cases (hence the\u00a0standing doctrine<\/a>, mootness, ripeness, etc.), but also it has shown itself to be particularly sensitive to the factual disposition of the cases before it.
\n
\nFor example, the claim of ineffective assistance of counsel is governed by\u00a0Strickland v. Washington<\/a>\u00a0(1984), where the defendant must show\u00a0that counsel\u2019s performance (a) fell below an objective standard of reasonableness, and (b) there is a reasonable probability that, but for counsel\u2019s errors, the result of the proceeding would have been different.Strickland<\/em>\u00a0came out of the 11th Circuit, included crimes of murder and kidnapping, and involved a defendant acting against counsel\u2019s explicit advice in voluntarily confessing and waiving his right to a jury. The defendant was convicted, but at sentencing, his attorney may have failed to investigate all avenues of mitigating evidence. The 11th Circuit ultimately rejected Strickland\u2019s claim on the basis of the aforementioned two-pronged test, which was later upheld and adopted by the Supreme Court. However, as recently as a couple of years prior, the 11th Circuit\u2019s ineffective assistance of counsel claim was defined by\u00a0Goodwin v. Balkcom<\/a>\u00a0(11th Cir. 1982). In that capital case, the 11th Circuit found that there had been ineffective assistance of counsel because the defense attorney failed to examine procedures for jury selection and thus did not object to conspicuous racial and gender problems with the jury, and failed to investigate the facts to raise a second defense. That court concluded that under the \u201ctotality of the circumstances\u201d and \u201ctaken together\u201d counsel\u2019s actions deprived Goodwin of the representation due any client. The speculation is that if\u00a0Goodwin<\/em>\u00a0(or another case) had come up to the Supreme Court instead of\u00a0Strickland<\/em>, the current standard for ineffective counsel may very well have been different, and perhaps more generous to defendants.<\/p>\n

A better example may be in the run-up to\u00a0Gideon v. Wainwright<\/em><\/a>\u00a0<\/em>(1963), the landmark case that extended the 6th Amendment right to\u00a0counsel for criminal defendants to state courts, and overturned\u00a0Betts v. Brady<\/a>\u00a0<\/em>(1941). By the early 1960s, the Supreme Court had determined that it was ready to abandon\u00a0Betts<\/em>, and cast about for a good test case to do it with. As one law review\u00a0article<\/a>\u00a0recounts it, \u201cChief Justice Earl Warren made clear that he believed that an accused in a state prosecution had a right to counsel and his clerks remained on alert for a vehicle through which the Court might overrule\u00a0Betts<\/em>.\u201d A case came up,\u00a0Carnley v. Cochran<\/a>\u00a0<\/em>(1962)<\/em>, which seemed to present that very opportunity. But\u00a0Carnley<\/em>, a case involving allegations of incestuous child sexual abuse, repelled Justice Frankfurter, who declared that it was impossible to \u201cimagine a worse case, a more unsavory case to overrule a long standing decision.\u201d And for that unsavoriness, justice for indigent criminal defendants was delayed for another year, until\u00a0Gideon<\/em>.<\/p>\n

The facts of the case have been, and will continue to be important. Real people need to suffer real injuries to bring a case to court, and a judge\u2019s opinion and leaning will be inevitably colored by the facts and circumstances before her. Good facts, and \u201cperfect plaintiffs\u201d, are crucial in garnering public support, judicial sympathy, and popular acceptance.<\/p>\n

Next week, I\u2019ll return to\u00a0Flagrant Conduct<\/em>\u00a0and discuss the other side of the perfect test case: finding the perfect prosecution.<\/p>\n","protected":false},"excerpt":{"rendered":"

By David Yin My colleague Peter Dunne\u00a0previously blogged\u00a0about University of Minnesota Law professor\u00a0Dale Carpenter\u2018s new book,\u00a0Flagrant Conduct, on the\u00a0Lawrence v. […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[2],"tags":[],"class_list":["post-1110","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-hU","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1110","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1110"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1110\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1110"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1110"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1110"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}