Works in Progress Group 19: Criminal Law

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Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Union Square 17&18

Floor: 4th Floor

Group #19: Criminal Law

The Shadow “Defendants”
Mariam Hinds, American University Washington College of Law

To a public defender, phone numbers are gold. It is conventional wisdom among public defenders that when you meet a client, you ask for their contact information and phone numbers for family members, friends, and others who live with or see the client on a regular basis. However, during my years as a public defender, I observed and practiced a more nuanced version of this pattern. After much trial and error (and many bench warrants issued for absent clients), I began to specifically request the contact information for the closest woman - be it a mother, sister, grandmother, wife, or girlfriend - to my client.

Although the overwhelming majority of my clients were men, specifically Black men and men of color, I found that women played a critical role in clients’ cases, often performing crucial tasks. This Article centers those women and casts them as shadow “defendants” who suffer many of the same consequences of criminal justice involvement as their system-involved loved ones. It examines the economic, social, emotional, and collateral consequences that the criminal justice system imposes on these women arguing that they are prosecuted and punished right alongside traditional male defendants. These women are often specters in the criminal justice system: their presence and participation are anticipated, expected even, but rarely acknowledged. The system relies on their contributions but fails to acknowledge their burdens or suffering. And while the system eagerly penalizes those accused and convicted of committing crimes, it (perhaps) unwittingly punishes those who stand beside them.
Moderator and Discussant: Chris Dearborn, Suffolk University Law School

What If I Told You: Judicial Discretion and Juror Rehabilitation
Alba Morales, NYU School of Law

In my post-conviction criminal defense practice, I’ve read countless trial transcripts and noticed a phenomenon wherein judges are quick to rehabilitate jurors who express anti-defendant sentiments but less inclined to rehabilitate jurors with anti-prosecution thoughts and feelings. For example, a juror who states that they assume that an arrest provides some indication of guilt will elicit a question from the judge regarding whether they could follow an instruction about the presumption of innocence. A juror who expressed antipathy from police, however, will receive no such attempt at rehabilitation. Unless an attorney makes and loses a ‘for cause’ challenge, these exercises of judicial discretion do not give rise to any appellate claims, and are, in many cases, unreviewable.

This paper will look at the history of judicial rehabilitation and examine how New York City judges exercise their discretion in voir dire—when and how they choose to rehabilitate, when they choose not to rehabilitate. I am currently working with several appellate public defenders in New York City to gain access to voir dire transcripts. I hope to access a large enough sample to provide a snapshot of judicial use of rehabilitative questioning in New York criminal courts.
Discussant: Lauren E. Bartlett, St. Louis University School of Law