What
Would a Defense Attorney Ask a Judge Before Deciding to Represent a First
Degree Murder Case
Leslie
K. Penny
Module
3 Written Assignment 1
Chancellor
University
Abstract
The following essay
provides some insight into what a defense attorney would ask a judge before
committing to a client who's been charged with murder. The five questions posed include what the
specifics of the case are in regards to which crime(s) were committed or if
there is a potential for a self defense case; if the accused has a prior
criminal history as opposed to charity work or any work in a volunteer
capacity; how this case will affect the potentials clients family; how this
case will impact on society or the law enforcement community and whether there
are mitigating factors to use is leeway to downplay the death penalty to the
jury.
What
Would a Defense Attorney Ask a Judge Before Deciding to Represent a First
Degree Murder Case
Upon research and critical thinking I have managed to
come up with five items I would ask a judge before taking on a client. I was not aware that a defense attorney can
even ask a judge any questions in regards to a potential clients case who's
been charged with murder. The five
questions that come to mind include: what the specifics of the case are in
regards to which crime(s) were committed or if there is a potential for a self
defense case; if the accused has a prior criminal history as opposed to charity
work or any work in a volunteer capacity; how this case will affect the
potentials clients family; how this case will impact on society or the law
enforcement community and whether there are mitigating factors to use is leeway
to downplay the death penalty to the jury.
I assume there is a dossier on the defendant in question
that will provide a limited amount of information for me to peruse in order to
assist me in my decision. The
charges being filed on the defendant play a key role in what is at stake in
this case, how many man hours will be needed to represent the client, how much
work will need to be put in and what the chances are for the client to come out
on the better end of a plea bargain or if the case goes to trial.
The information gleaned from the
case, in regards to the evidence against the defendant, can either tell a
defense attorney how well the case will go in their favor or if not at
all. As a defense attorney, I will need
to meet that burden of proof that my client is innocent, and knowing as much
information that the prosecutor has against the defendant will determine
whether I want to take this defendant on as my client or not. In the end, do I feel I will win this case
and if not, then do I feel I can get enough doubt in the jury's mind to keep
him from a death sentence. The ultimate
goal here is to achieve the most positive results possible for the
defendant.
One of the first things I would want
to know about my client is whether he has a prior criminal history or record of
any kind. According to Neubauer and
Fradella, Lyn Mather, in 1974, fooled everyone, including her defense attorney
when she claimed to not have had a criminal history which in fact, was learned
later in pretense report that she did have a prior 5 year history of similar
crimes which took her defense lawyer by surprise (Fradella, 2011).
If she had divulged that information honestly to her defense attorney
he/she may have been able to thwart that threat or used the info in a plea
bargain. Unfortunately for her, she was
sentenced to prison (Fradella, 2011).
If there is no prior criminal
history than a history in society may help sway the jury that this case may be
a self defense case or one where the murderer was the victim of family violence
or abuse. This history can include any
volunteer work or charity work, any outstanding services rendered with awards
and validity to prove it, testimonials from co-workers, friends or family. Any type of history that shows this incident
was not the norm or regular behavior of the defendant.
I would want to look into the
dynamics of the defendants family. An
individual's family can provide further insight than their past history may
provide. They may be able to guide me in
the direction that I think the defendant either did in fact murder the
individual with intent or if the defendant was a victim in the situation they
found them self in. The affect of this
trial on the defendant may play a major role in how the defendant takes the
advice given to him by myself. He may
want to plea out early on to refrain his family from having to go through the
court process. Or how the family is
effected could have no sway on the defendant what's so ever.
If I feel this case could favor my
client in regards to his rights being violated then this could be a potential
case for public interest and a change to how law enforcement does things. Take the Gideon case, for example. He was able to use his 8th grade education to
represent himself proving to the Supreme Court that he deserved the right to
counsel like other indigent defendants even though he was denied that right to
counsel in state court because in the state of Florida he had committed a
felony which is a capital offense (Gideon v. Wainwright, 2013). The Supreme Court cited in his favor stating
that the "framers of the Constitution placed a high value on the right of
the accused to have the means to put up a proper defense, and the state as well
as federal courts must respect that right" (Gideon v. Wainwright, 2013). So, by taking on this client, I would like to
see the potential for some changes to take place if this client was wronged in
any way.
Lastly, I would like to know exactly
what, if there are any, mitigating factors that are in this case. Mitigating factors would come into play during
the verdict phase and during the sentencing phase. "Mitigating factors include youth of the
defendant, lack of mental capacity, and role (principal or secondary actor) in
the crime" (Fradella, 2011).
Other factors include perceived social stability of the defendant,
marital status, relationship with the family, length of employment, and prior
alcohol or drug abuse (Fradella, 2011).
All of these factors can help downplay a clients guilt or participation
in a murder case.
To conclude, I am sure there are
many questions an actual defense attorney has the experience and knowledge to
ask a judge before taking on a certain client.
The ones I posed are just what common sense implies and were ones that I
would want to know if I were in a defense attorneys shoes. There is so much at stake in murder cases for
the defendant and for the murder victim and family. One cannot be casual during these
proceedings. Information, honesty, and
self preservation is everything in these cases.
Works Cited
Fradella, D. W. (2011). America's Courts And the
Criminal Justice System. Belmont: Watsworth Cengage Learning.
Gideon v. Wainwright. (2013, 05 26). Retrieved 05 26, 2013, from U.S.
Supreme Court Media OYEZ IIT Chicago-Kent College of Law:
http://www.oyez.org/cases/1960-1969/1962/1962_155
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