C H A P T E R 11

Judges, Prosecutors, and

Other Performers

at the Bar of Justice

SUMMARY

The criminal judicial process in the United States has many participants. First, there is a courtroom work group composed of a judge, who serves as the head of the court; a prosecutor, who argues the state’s case; and a defense attorney, who argues on behalf of the accused. Second, there are many others who are significant to the process—depending on the nature of the proceeding, the type of case, and the level of the court. These include police officers, witnesses, jury members, and various officers of the court. Third, there are those with quasi-judicial functions, such as coroners and medical examiners. Each of these participants has a specific role in the criminal court process, without which given phases in the judicial system would not be fully possible.

It is generally believed that more than 90 percent of criminal convictions result from negotiated pleas. Plea bargaining takes place between the prosecutor and the defense counsel or the accused and involves discussions looking toward an agreement under which the defendant enters a plea of guilty in exchange for some prosecutorial or judicial concession. Plea bargaining has both advantages and disadvantages, and its abolition has been called for. Advocates for its retraction argue that it encourages defendants to waive their constitutional right to trial and enables them to receive a sentence generally less severe than they might otherwise receive. They further argue that it ignores the correctional needs of the bulk of offenders and raises the danger of an innocent person—fearing a determination of guilt and a harsh sentence if the case goes to trial—pleading guilty to a crime he or she did not commit. Plea bargaining continues to be used, however, for without it the courts would become even more backlogged than they are now.

The prosecutor is a government lawyer acting on behalf of the state. Prosecutors have three basic responsibilities: to enforce the law, to represent the government in matters of law, and to represent the government and the people in matters of legislation and criminal justice reform. Defense attorneys, on the other hand, are advocates for the accused, often receiving harsh criticism from the public for representing scoundrels, rogues, and villains. Their primary role is to ensure that their clients receive both a fair trial and an adequate defense.

The Sixth Amendment holds that “in all criminal prosecutions the accused shall enjoy the right to have assistance of counsel for his defense.” Despite this guarantee, until the Scottsboro case in the 1930s, only persons charged with capital federal crimes enjoyed the right to counsel. Gideon v. Wainwright in 1963 extended the right to virtually all felony defendants, while Argesinger v. Hamlin in 1972 extended it to misdemeanor cases if imprisonment was a possible penalty. Additional Supreme Court decisions have impacted on the right to counsel as it relates to stages of the criminal justice process other than trial.

Legal services for the indigent come from several sources—legal aid, assigned counsel, and public defenders. All of these suffer from a variety of problems, with the consequence that the poor do not always receive adequate representation.

CHAPTER TOPIC OUTLINE

1.Judges

a.The roles and responsibilities of judges are numerous: they are arbiters in their responsibility to safeguard the rights of the accused, and they are administrators in their role as overseers of the courts in which they preside.

b.The functions and roles of judges tend to differ somewhat depending on whether the judges preside at the trial or at the appellate level.

c.Judges are either appointed or elected. In the federal system they are appointed “during good behavior” — for life.

d.Not all judges are qualified for the bench. Merit selection, the Missouri Plan, and varieties of judicial training have improved this situation only somewhat.

e.Exhibit 11.1, International Perspectives on Crime and Justice: Terrorism, Faceless Judges, and Military Tribunals

f.Exhibit 11.2, Historical Perspectives on Crime and Justice: The Law West of Fort Smith

2.Prosecutors

a.The prosecutor is a government lawyer and the chief law enforcement authority of a community.

b.The functions of the prosecutor include enforcing the law, representing the government in matters of law, and representing the government and the people in matters of legislation and criminal justice reform.

  • Exhibit 11.3, Victims and Justice: Players in the Plea Bargaining Process

c.Of the many specific functions of prosecutors, those which have the greatest impact are ones involving prosecutorial discretion:

  • The decision to prosecute
  • The nolle prosequi
  • Plea bargaining

d.Plea bargaining takes place between the prosecutor and the defense or the accused and has both advantages and disadvantages to the state, the people, and the accused.

  • In Brady v. United States the Supreme Court upheld the use of plea bargaining.
  • Exhibit 11.4,International Perspectives on Crime and Justice: Plea Bargaining in France

3.Defense Attorneys

a.The defense attorney is the advocate for the accused.

b.Despite common belief, the average criminal lawyer occupies a position of low prestige in the legal profession.

c.Abraham S. Blumberg has referred to the role of the retained counsel as a “lawyer-client confidence game” in which attorneys’ missions are the fixing and collecting of his or her fees.

4.Other Members of the Courtroom Work Group

  • Bailiffs or sheriffs
  • The court clerk
  • Court reporters and stenographers
  • Witnesses
  • Coroners and medical examiners
  • Auxiliary court personnel

5.The Right to Counsel

a.Major court decisions

Case / Ruling
Powell v. Alabama, 287 U.S. 45 (1932) / An indigent defendant charged in a state court with a capital offense has the right to the assistance of counsel at trial under the due process clause of the Fourteenth Amendment.
Johnson v. Zerbst, 304 U.S. 458 (1938) / The Sixth Amendment right to counsel applies to all defendants in federal prosecutions.
Betts v. Brady, 316 U.S. 455 (1942) / The Fourteenth Amendment’s due process clause does not require states to supply defense counsel to defendants too poor to employ their own attorney.
Gideon v. Wainwright, 372 U.S. 335 (1963) / An indigent defendant charged in a state court with any noncapital felony has the right to counsel under the due process clause of the Fourteenth Amendment.
Douglas v. California, 372 U.S. 353 (1963) / If state appellate review is statutorily required in criminal cases, an indigent felon is entitled to counsel, if requested, on the first appeal following a felony conviction.
Massiah v. United States, 377 U.S. 201 (1964) / In federal cases, the right to counsel becomes applicable upon indictment.
Escobedo v. Illinois, 378 U.S. 478 (1964) / A defendant has the right to counsel during the course of any police interrogation.
Miranda v. Arizona, 384 U.S. 694 (1966) / The guarantee of due process requires that suspects in police custody be informed—before any questioning can permissibly take place—that they have the right to remain silent, that anything they say may be used against them, and that they have the right to counsel.
United States v. Wade, 388 U.S. 218 (1967) / A defendant in a lineup for identification purposes has the right to the assistance of counsel.
Coleman v. Alabama, 399 U.S. 1 (1970) / The preliminary hearing can be a critical stage in a criminal prosecution; thus, a state’s failure to provide counsel at that stage may be a violation of the Sixth Amendment.
Argersinger v. Hamlin, 407 U.S. 25 (1972) / A defendant has the right to counsel at trial whenever he or she may be imprisoned for any offense, even for one day, whether it is classified as a felony or as a misdemeanor.

b.Exhibit 11.5, Historical Perspectives on Criminal Justice: Whatever Happened to . . .?

c.Restrictions on the Sixth Amendment Right

  • Alabama v. Shelton (2002) represents a shift in the trend of restrictions on the Sixth Amendment right to counsel.

d.See Faretta v. California (422 U.S. 806 [1975]) in Exhibit 11.6, Law and Criminal Justice: The Right Not to Have Counsel and the Concept of Standby Counsel.

6.Legal Aid, Assigned Counsel, and Public Defenders

a.Voluntary defender programs: legal aid societies, law school clinics, charitable organizations, the Legal Services Corporation, the ACLU, bar association programs, and other service groups

  • Questionable financial support
  • Emphasis on civil and family law

b.Assigned counsel systems: Appointments are made by the presiding judge. The system suffers from a number of problems:

  • Many lawyers are novices or has-beens.
  • Those assigned are not necessarily qualified in criminal law.
  • Payment is minimal or nonexistent, thus discouraging qualified criminal lawyers.
  • Funds are unavailable for expert witnesses or investigators.
  • Many assigned counselors are overconcerned with pleasing the court.

c.Public defenders are paid government employees who specialize in the representation of indigent defendants. With few exceptions, an accused represented by a public defender is better off than he or she would be if represented by legal aid or retained counsel.

d.Contract systems provide legal services to the indigent for a specified dollar amount.

  1. Legal, Prosecutorial, and Judicial Misconduct: Aspects of the Criminal Justice Nonsystem

a. Dishonesty, greed, and incompetence among judges, lawyers, and prosecutors

Other Topics of Interest:

Critical Thinking in Criminal Justice: The International Criminal Court

Careers in Criminal Justice: Increasing Numbers of Women in Law School

Famous Criminals: Richard Ramirez, the “Night Stalker”

KEY TERMS AND CONCEPTS

Argersinger v. HamlinMissouri Plan

Betts v. Brady motion

Brady v. United Statesnolle prosequi

Gideon v. Wainwrightplea negotiation

in forma pauperisPowell v. Alabama

Johnson v. Zerbstprosecutor

judges

LEARNING OBJECTIVES

After a thorough study of Chapter 11, students should be able to answer the following questions:

1.What are the major roles of judges, prosecutors, and defense attorneys?

2.What is plea bargaining, and what are the roles of the defense attorney, the prosecutor, and the judge in the plea bargaining process?

3.What are the arguments for and against plea bargaining, and what is the Supreme Court’s position on it?

4.What are the problems associated with providing legal assistance to indigent defendants?

5.How are judges selected in the state and federal court systems?

6.What are the issues surrounding prosecutorial discretion and the nolle prosequi?

7.In addition to judges, prosecutors, and defense attorneys, who are the other members of the courtroom work group and what are their roles?

8.What were the major issues and cases associated with extending the Sixth Amendment right to counsel to state defendants?

SUPPLEMENTARY LECTURE MATERIALS

JUDICIAL IMMUNITY

During the early part of 1986, the Eleventh Circuit Court of Appeals presided over a rather bizarre case that addressed the issue of judicial immunity (Harris v. Deveaux, 38 CrL 2362 [1986]), a matter that can be discussed along with the functions of trial judges.

Defendant Philip Jones appeared before Georgia municipal court judge Clint Deveaux for a preliminary hearing on a rape charge. Jones stated that the complainant, Stephanie Harris, had propositioned him and robbed him of $200. Over the protests of the prosecution, Judge Deveaux directed that Ms. Harris be arrested, charged with robbery, and incarcerated. The judge refused to permit her to be released on her own recognizance since the prosecutor refused to agree to the same for the defendant, Philip Jones. Several hours later, Ms. Harris was released by a different judge. When Judge Deveaux learned of this the following day, he reduced the charge against Jones and ordered his release. Because Harris was a juvenile, Judge Deveaux eventually dismissed the robbery charge against her, but he ordered her detained, over the objections of both the prosecution and the defense, so that custody could be transferred to the juvenile authorities.

The facts of the case brought two questions before the court of appeals. First, when Judge Deveaux embraced the role of prosecutor and initiated proceedings against Stephanie Harris, did he have the jurisdiction to do so? The local district attorney had said no, arguing that there was nothing in Georgia statutes that gave judges such authority. Second, under such circumstances, can a plaintiff sue the court and the judge for money damages?

The court addressed these two questions by referring to Stump v. Sparkman (435 U.S. 349), decided by the U.S. Supreme Court in 1978. The High Court had pointed out in that case that judges have absolute immunity, even when they act maliciously, provided that they are dealing with any given plaintiff in a judicial capacity.

In addressing whether Judge Deveaux was acting within a judicial capacity, the appellate court agreed that his ordering of charges against Harris was not the normal task of a judge. However, it pointed out that Judge Deveaux’s actions evolved from a case pending before him, that the confrontation between him and Harris was directly the result of a visit to him in his official capacity, and that the matter occurred within his court. As such, Deveaux was acting in his official capacity as judge. His own review of the evidence in the case before him indicated that there were two different versions of what had happened. He had determined, based on his own convictions, that the evidence justified further action against both the principals, rather than against only the defendant. In closing, the appellate court emphasized that judges must be free to act on their own convictions. Judge Deveaux may have acted improperly in ordering the charges against Harris. We cannot say, however, that he was not acting in his judicial capacity.

PROSECUTORIAL IMMUNITY

In Imbler v. Pachtman (424 U.S. 409 [1976]), the Supreme Court decided that state prosecutors are absolutely immune from suits for damages under 42 USC 1983 to the extent that their conduct is “intimately associated with the judicial phase of the criminal process.” Deciding what this means in the context of conduct occurring prior to the filing of charges, a majority of the High Court held in Burns v. Reed (49 CrL 2237), decided in 1991, that state prosecutors are protected by absolute immunity from actions for damages under 42 USC 1983 for their participation in probable cause hearings but enjoy only qualified immunity from Section 1983 suits for their conduct in giving advice to police officers. The facts of the case are as follows.

The civil rights plaintiff claimed that an Indiana prosecutor violated her constitutional rights when he advised police officers investigating the shooting of the plaintiff’s sons that they could lawfully question the plaintiff under hypnosis. The plaintiff also claimed that the prosecutor violated her rights when he used her statements to obtain a search warrant without revealing to the magistrate that they were given under hypnosis. The prosecutor won a directed verdict on the basis of absolute immunity, and the U.S. Court of Appeals for the Seventh Circuit affirmed.

The functional approach suggested by Imbler asks whether the conduct complained of was undertaken pursuant to the prosecutor’s quasi-judicial role as the advocate of the state, for which he would enjoy absolute immunity, or whether it was undertaken pursuant to his investigative or administrative duties, for which he would receive only the qualified immunity accorded police officers. The majority, speaking through Justice White, retraced the common law and decided that participation in a warrant hearing is akin to a prosecutor’s conduct before a grand jury, which has already been held protected by absolute immunity. From the policy perspective, White said that absolute immunity is necessary to head off vexatious litigation that might have an untoward effect on the independence of the prosecutor in an area that, in Imbler’s words, is intimately associated with the judicial phase of the criminal process. Also, he noted, prosecutorial misconduct at judicial hearings can be checked by the judicial process itself.

In contrast, the giving of advice to police officers does not have a history in the common law of being protected by absolute immunity, the majority noted. Nor can argument rooted in fear of vexatious litigation support absolute immunity in this context: “The concern with litigation in our immunity cases is not merely a generalized concern with interference with the official’s duties, but rather is a concern with conduct closely related to the judicial process. Advising police officers does not meet this test,” White said. The appeals court expressed concern that depriving prosecutors of absolute immunity would discourage them from freely giving legal advice to police, but White suggested that qualified immunity was sufficient protection to ensure that this would not happen.

Since the Imbler case, prosecutors have generally enjoyed immunity against lawsuits. Recently, however, some jurisdictions have started to shy away from granting prosecutorial immunity, and an increasing number of cases against prosecutors are surviving motions to dismiss and proceeding to discovery. This trend is weakening the protections of prosecutorial immunity, which is intended to be a shield not only against liability for damages but also from the lawsuit itself. The following Illinois District Court case is Horstman v. County of DuPage, et al., No. 02 C 5218, (2003).

In July 2001, John R. Horstman was riding his bicycle on a public trail in DuPage County when a DuPage county sheriff’s squad car pulled in front of him and blocked his path. He was detained, searched, found to be in possession of a firearm, and questioned about a report of a man exposing himself to two 10-year-old girls on the trail. He was charged with aggravated unlawful use of a weapon, a felony. The next morning at his hearing, prosecutor Liam Brennan told the judge that Horstman had exposed himself to two children and then chased them, and Brennan requested that bail be set at $250,000 and that Horstman surrender all weapons he owned and avoid unsupervised contact with minors. The requested bond was set, which Horstman posted later in the day and was released.