Legal Issues – Term Paper

Question 1: Factors that guide judges in setting a bail

Judges normally set bail, the sum a defendant should part with to be released from jail pending trial, after the initial appearance in court following an arrest. The decision by the judge is informed by several factors. He or she is guided by a few choices when deciding the bail. For instance, he or she can adhere to the set-out bail amount, increase or decrease the standard bail, ignore bail and grant release, deny bail altogether, or assign special circumstances for release. Although no two cases are the same, the following are the main factors that inform the judge’s decision in setting bail:

1.    The form of crime the defendant committed and the nature of allegations

2.    Posted bail charges

3.    Outstanding warrants

4.    Safety to the entire community

5.    The character and mental condition of the defendant

6.    Chances of defendant appearing in court

7.    Probable flight risks

8.    Whether he is employed

9.    The victim’s safety.

10.    When he or she has attempted to flee to avert prosecution

11.    Whether he or she has wealth that might enable him to flee

12.    Whether the allegations are substantial and show guilt (Lynch, 2004: Chapter 3 page 61).

At an arraignment, the defense attorney and the prosecutor will debate these factors to the judge to strengthen their separate positions. 

Under such factors, it is evident that indigent defendants are disadvantaged and do not get due process in the law courts. It is clear that the judge does not consider the ability of the defendant to post bail. Suppose a defendant committed a certain criminal offense whose standard bail is $10, 000. Upon a thorough evaluation of the case, the judge decides that he fits to be released on bail above. However, neither the defendant nor his family and friends can be able to raise the set-out bail. Under such circumstances, the defendant is jailed not for any other reason but for the fact that he could not afford the monetary bail that was offered to him. Before he even gets a chance to argue his innocence, he gets jailed for weeks or months because he cannot raise the bail. Eventually, the jailed defendant is denied the ability to prepare and participate in his defense. To this end, it could have been more appropriate if the judges considered the ability of the defendant to pay bail among the above-named factors. This way, indigent defendants would equal with their wealthy counterparts who can pay any amount of bail set out by the judge. They would be able to go about their daily businesses while preparing to participate in defending their case.

Question 2

To prove ineffective assistance of counsel, a defendant should show the trial lawyer he or she hired  performed below the objective standard of reasonableness. Moreover, he or she should also show a logical chance that the outcome of the proceeding could have been different. The standard should not be perceived differently for public lawyers who have a bulk of cases to consider since what matters is that is ensuring an innocent client is set free while those who are guilt are imprisoned. Allowing public lawyers to offer ineffective assistance would be tantamount to obstructing the rule of law. No matter the matter, justice should prevail. If a defendant or a plaintiff is able to prove that he received an ineffective assistance of counsel, then he or she should be eligible to having his outcome overturned. The bottom line is ensuring that a defense lawyer does not sleep on his job regardless of whether he is overwhelmed or not. Moreover, the government should ensure that employee enough public defenders to ensure that they are not overwhelmed. Moreover, there also needs to have harsh penalties for those attorneys who are found to have offered ineffective assistance while those who adhere to the set standards are rewarded.

Question 3

It is widely believed that in a courtroom, the judge has all the powers. Although this is true when the trial is ongoing or during sentencing, it is surprising that, the person who has the most powers in a courtroom is the prosecutor (Lynch, 2004: Chapter 5 page 98). For instance, the prosecutor is the only person who has the mandate to lower the defendant’s charges, provide a deal proposing a specific sentence, or dismiss the case. The judge are only allowed to dismiss the case in extremely limited scenarios particularly as outlined in the law. For instance, a prosecutor may opt to lower the charges of a defendant if he or she is compassionate to him or her situation. Moreover, nonetheless, enjoys the power of discretion, he or she can carry out his or her judgment without being limited by the law. The bottom line is that a good lawyer comprehends that the prosecutor has most powers and that an impactful presentation of the defendant’s case can help resolve the case (Lynch, 2004: Chapter 4 page 72).

In the legal system, the prosecutor is more esteemed than other lawyers owing to the great responsibility, which is wielded by the position. He or she is symbol not of a normal side to a disagreement, but of a liberty whose duty to rule fairly is compelled by the calling to rule at all; and whose interest, thus, in any criminal prosecution is not to push for one side to win the case but to rotate the wheels of justice. To this end, he is in a definite and peculiar sense, the servant of the law. As such, he is not supposed to let those who are guilty of committing any offense escape while at the same time he is not supposed to let innocent people suffer. He is required to prosecute with earnest and vigor, and although he is allowed to strike hard blows, he or she is not allowed to strike foul ones. Therefore, he or she should stay away from improper methods aimed at producing wrongful sentence as he or she is supposed to go at any length to bring about a just conviction. Summarily, he is supposed to use prosecutorial discretion, show responsibility to victims, exercise fairness in discovery and trial, and trial publicity (Lynch, 2004: Chapter 5 page 102).

Question 4. 

Ensuring due process to a defendant means that the state respects all the lawful rights of the suspect. By so doing, the state balances the constitutional powers and safeguards the defendant from them. The court officials are supposed to ensure that they do not harm or violate the rights enjoyed by the offender. Moreover, due process demands that judges define and assure fundamental justice, fairness, and liberty. Therefore, from the time the defendant is arrested to the time he is sentenced, he or she is supposed to be taken through the outlined legal process.

The pretrial stages are set in such a way that would ensure that due process is followed. The process through which a defendant moves from arrest to his or her sentencing has several decision points. For instance, an arrest should be made after a warrant is issued. This ensures that a person is not wrongly arrested. Moreover, it also demands that a person is arraigned in a court of law after stipulated time. In essence, this ensures that a person is not kept in jail for long without trial. Further, during the first appearance in court, the defendant is eligible to bail. This ensures that one is free to go about his businesses while continuing to defend himself. Moreover, a defendant is also at liberty to hire an advocate while those who cannot afford are given free counsel. These among other requirements ensure that a defendant gets the due process.

References

Lynch, D. R. (2004). Chapter 3: Justice Delayed. In D. R. Lynch, Inside The Criminal Courts (p. 62). Carolina: Carolina Academic Press.

Lynch, D. R. (2004). Chapter Five: The Prosecuting Attorney. In D. R. Lynch, Inside The Criminal Courts (pp. 93-106). Carolina: Carolina Academic Press.

Lynch, D. R. (2004). Chapter Four: The Criminal Defense Attorney. In D. R. Lynch, Inside The Criminal Courts (pp. 71-89). Carolina: Carolina Academic Press.