Actus Reus

ac·tus re·us \ˈak-təs-ˈrē-əs, ˈäk-tu̇s-ˈrā-u̇s\

noun : the wrongful act that makes up the physical action of a crime

Latin: guilty act

Denver Law’s Criminal Defense Clinic

The University of Denver Criminal Defense Clinic is the sponsor and host of this website.  A link to the CDC web page is here.

The Denver Criminal Defense Clinic aims to change the criminal justice system one new lawyer at a time. In the past five years alone, more than 40 Denver Criminal Defense Clinic students have been offered jobs in the Colorado Public Defender’s Office. Of the 18 Criminal Defense Clinic students from the Spring 2016 semester, 11 are participating in summer internships with a public defender’s office.

NEWS FROM THE CDC

Marshall Project begins three-part series addressing underfunding of public defender offices

Beginning today, the Marshall Project is publishing a three-part investigative series on underfunding in public defender systems. The first article, entitled When the Money Runs Out for Public Defense, What Happens Next?, provides a glimpse into staggering funding crises in public defender offices across the country. The accounts include Louisiana judicial districts where one public defender represents 900 clients, another public defender represents 50 defendants simultaneously pleading guilty in separate felony cases, and a prosecutor doubles as a part-time public defender.

Prosecution Notes from Jury Selection and Batson Objections

Sara Hildebrand (CDC Fall 2011) writes:

I recently did a presentation for some fellow public defenders about the legal principles set forth in Batson and its progeny, and re-learned, when reading the U.S. Supreme Court’s opinion in Foster v. Chatman, 136 S.Ct. 1737 (2016), how important it is to move the trial court to (a) consider the prosecution’s notes related to jury selection when ruling on a Batson objection; and (b) make those prosecution’s notes part of the record for appellate purposes.

As a reminder, in Foster, SCOTUS reversed the Georgia Supreme Court and remanded Mr. Foster’s case for a new trial; it held that his right to Equal Protection was violated by the prosecution’s purposefully racially discriminatory exercise of peremptory challenges to excuse two Black potential jurors.

In Foster, SCOTUS’s holding that the prosecution purposefully discriminated against the two Black panelists was based on (1) the fact that some of its proffered reasons for striking a Black panelist applied just as well to an otherwise-similar non-Black [panelist] who was permitted to serve; (2) shifting explanations given by the prosecution during arguments related to the Batson objection; (3) misrepresentations of the record by the prosecution; and (4) the persistent focus on race in the prosecution’s file.

Prof. Lasch pointed out, and I agree, that the Foster Court arguably implied, based on the fact that it did not consider all purportedly race-neutral reasons set forth by the prosecution as to either excused Black panelist, that one patently false race-neutral reason offered by the prosecution could outweigh potentially valid remaining race-neutral reasons and result in a finding of purposeful discrimination.

The ability to show a trial or appellate court that a purportedly race-neutral reason is false or pretext for purposeful discrimination is imperative. The prosecution’s notes related to jury selection can serve as an invaluable tool in making that showing during jury selection or in appellate proceedings. I resolved that, from this point forward, I will move the trial court to make the prosecution’s notes related to jury selection part of the record in every case in which I make a Batson objection and recommend all defenders consider doing the same.

There are bases in law, aside from in Foster, to ask a trial court to make the prosecution’s notes part of the record. For example, the U.S. Supreme Court in Snyder v. Louisiana, 552 U.S. 472, 478 (2008), asserted “all of the circumstances that bear upon the issue of racial animosity must be consulted” when determining whether a peremptory challenge was exercised in a purposefully discriminatory manner. Also, in Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977), SCOTUS asserted that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . .evidence of intent as may be available.”

Southern Center for Human Rights hiring for death penalty attorney position

The Southern Center for Human Rights is currently accepting applications
for a new death penalty attorney.  Attorneys at all stages of
their career, including 3Ls with criminal defense experience, are invited
to apply. The deadline to apply is Sunday August 28, 2016.

The job description and application requirements are available here.

Reflections from the Criminal Defense Clinic – Daniel Cunny (Fall 2012)

The law doesn’t help enough. You need more.

Part of what I’ve gained from the last semester in the Criminal Defense Clinic is a better understanding of makes a good lawyer, I entered the semester with a belief that a good lawyer had an understanding of the law, and an ability to make a strong legal argument based on that knowledge. I’m exiting the semester with a different belief.

From what I’ve seen this semester, a legal argument, or at least a legal argument alone, is not the best way to accomplish a client’s goals. A lawyer needs more.

A lawyer needs to be creative and confident in that creativity.

When Alex read his “keystone” and later “worker bee” arguments, I thought to myself, that is such a bunch of bs, who does this guy think he is? I since have come around to embrace that creative spirit. When I sit down and begin to write an argument, I think to myself, “how would Alex explain this?” Creativity makes people listen; they pay attention when your words are different. Why was I dismissive of creativity? I didn’t want to be different. I’ve since come to the conclusion that I have no right to be concerned about being different. If it helps the client, it needs to be done.

A lawyer needs to be compassionate and committed to his client.

“Perhaps no professional shortcoming is more resented than procrastination,” states the professional rules. How do you keep one hundred percent committed to you client at all times? l haven’t figured it out yet, but I know I will be better if I do. However, the last semester in the clinic has shown me the importance of diligence. There is always more that you can do. More time thinking and preparing your client’s case never hurts.

A lawyer needs to establish and promote an emotional connection to his cause.

I would be lying if didn’t say I thought to myself a few times, “Oh boy, [] is ranting again.” I think [] has the right idea though. Having and voicing a strong opinion prepare you to voice emotion when you are making an argument for your client. The law can be molded to fit any sides’ goal. If the law couldn’t produce unjust outcomes, why does our profession exist? Emotional arguments augment and can even eclipse a legal argument. Appealing to a person’s sense of right and wrong is powerful stuff, more powerful than an interpretation of something than written in a statute book. A lawyer needs the ability to stand up and convincingly show, “something is wrong here, the law has made a mistake.”

As I think about the situations I was in this semester, it wasn’t understanding the law or making a good legal argument that kept me from completely screwing up, it was all those other skills or traits. Understanding the law isn’t enough, you need more to be a good lawyer. The Criminal Defense Clinic has opened my eyes to what else is I need know.

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