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Criminal Procedure II
University of Oklahoma College of Law
Henderson, Stephen E.

Criminal Procedure II – Henderson – Fall 2014
I.       Introduction
A.     Is our criminal justice system legitimate?
                                                   i.      Accuracy (how accurate is our system; error allocation)
                                                 ii.      Fairness (people treated equally and in a morally acceptable manner)
                                               iii.      Limited Government (dignity, liberty, human autonomy, privacy)
                                               iv.      Efficiency (justice delayed is justice denied)
B.     Criminal Process
                                                   i.      Investigation
1.      Anthrax Suspect Article – Shows how much a criminal investigation can disrupt someone’s life.
                                                 ii.      Arrest
                                               iii.      Booking
                                               iv.      Interrogation/lineup
                                                 v.      Complaint
                                               vi.      Initial appearance
                                             vii.      Preliminary hearing/indictment
                                           viii.      Arraignment
                                               ix.      Discovery/pretrial motions
                                                 x.      [Right to counsel]                                                xi.      Plea bargaining
                                             xii.      Jury selection
                                           xiii.      Trial
                                           xiv.      Sentencing
                                             xv.      Direct appeal
                                           xvi.      State collateral appeal
                                         xvii.      Federal collateral appeal
C.       “Murder on a Sunday Morning”
                                                   i.      Its subject is the Brenton Butler case, a criminal case in which a fifteen-year-old boy was wrongfully accused of murder.
                                                 ii.      Brenton Butler was arrested and tried for the 2000 murder of a tourist in Jacksonville, Florida. The prosecution's case relied heavily upon a positive identification made by the victim's husband, and on Butler's confession, which the teen claimed was coerced. The film follows Butler's defense team building their case for his innocence.
II.   Pretrial Release (Chapter 11)
A.     Interests at Stake in the Release Decision
                                                   i.      The most significant feature of the initial arraignment is that the magistrate determines whether the defendant may be released pending trial and, if so, under what conditions.
                                                 ii.      Why does pretrial release matter?
1.      Constitution (8th Amendment)
2.      Help with defense
a.       A jail detainee’s ability  to prepare adequately for trial is restricted.
3.      Employment/financial hardship
a.       Detained defendant, unable to return to work, is likely to lose his job, and often his only source of income.
4.      Defendant’s liberty interest
a.       Median time between arrest and adjudication in 2006 was 364 days for murder; 139 days for other violent offenses, and 92 days overall for all offenses.
b.      Thus, a suspect may suffer a significant loss of liberty even if no conviction or even trial date has been set.
5.      Family
6.      Contradicts “innocent until proven guilty”
7.      More likely to plea (to get out of jail or to avoid going back)
a.       State conviction rate for detained felony defendants is higher (78%) than for those released prior to trial (60%).
                                                                                                                           i.      Curtailment of attorney-client relationship.
                                                                                                                         ii.      Due to loss of income, a detainee may be required to rely on the services of an overworked public defender rather than a private attorney of choice.
                                                                                                                       iii.      A detainee is often pressured by jail conditions to accept a disadvantageous plea offer.
8.      Stigma with imprisonment
                                               iii.      State Interests (in keeping suspects in jail)
1.      Prevent crime (safety of others)
2.      Prevent fleeing (let our system work)
3.      Intimidation of witnesses
4.      Destruction of evidence
                                               iv.      Worse situation pretrial than post-trial. (Jail versus state penitentiary.)
                                                 v.      Video clip from Gideon’s Army (public defenders)
1.      Lost job
2.      Lost tools to help
3.      Lost home (evicted and missed court date because in jail)
B.     Bail and Other Release Mechanisms
                                                   i.      Bail is often determined with a bail schedule with predetermined amounts. Individuals may pay bail agent 10-15% of total to bail agent.
1.      The transition to commercial bondsmen largely moved the pretrial release decision out of court control and into the hands of the bondsmen.
2.      The consequence of relying on the money bail system is that the defendant’s freedom hinges largely on one factor – the ability to raise money.
3.      At the Federal level, the Bail Reform Act was amended in 1984 to allow consideration of danger and to allow preventative detention in limited circumstances.
4.      Defendants in state courts were more likely to be released, but also more likely to violate release conditions than federal defendants.
5.      Approximately 40 states treat capital offenses differently.
                                                 ii.      Possible Pre-Trial Release Outcomes
                                               iii.      Rothgery v. Gillespie County
1.      Right to counsel attaches at adversarial proceedings.
2.      Pretrial hearing triggers this right, which means no attorney at pretrial, but after that right to counsel.

ent indicia of serious criminal activity to justify full-fledged arrest.
                                                 ii.      Prosecutor almost always becomes involved after arrest, sometimes making the initial charging decision, sometimes reviewing a charging decision made by the police.
                                               iii.      Judge becomes involved (usually) at a preliminary hearing shortly after arrest.
                                               iv.      Citizen can become involved when we use grand juries.
                                                 v.      Fixed amount of discretion? Some believe that there is only so much discretion and thus taking it away from one actor simply squeezes the power (like a balloon) to another power. The discretion must be exercised somewhere.
B.     Prosecutorial Discretion in Charging
                                                   i.      Case Study: 235 Counts vs. 0 Counts
1.      Suspected day care worker indicted on 235 counts of child abuse, only 163 taken to court, further dismissed so that 131 counts remained at the end of trial, and the jury finally convicted on 115 counts. Ultimately, the 115 counts were reversed.
2.      Federal prosecutors are authorized not to prosecute a federal crime if they believe that (1) “no substantial Federal interest would be served by [the] prosecution,” (2) the defendant “is subject to effective prosecution in another jurisdiction,” or (3) “there exists an adequate non-criminal alternative to prosecution.”
3.      Federal prosecutors decline roughly a quarter of all cases referred to them by federal agencies.
                                                 ii.      The Standards of the Bar
1.      The prosecutor is not obliged to present all charges which the evidence might support.
2.      Prosecutor should not bring charges: (1) when the prosecutor knows that the charges are not supported by probable cause. (2) A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.
3.      The prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.
4.      When the crime is serious, the standards suggest using the subpoena power and the threat of contempt of court for refusing to appear and testify. For less serious offenses, the standards suggest that a “prosecutor may justifiably decline to prosecute.