Offices in the Judicial System, E.G. Prosecutor,

¶ … offices in the judicial system, e.g. prosecutor, private attorney, public defender, and comparatively discuss the origin, development, behavior and relatedness of each to the other person would be considered till such a time, innocent of a crime, in the U.S. judicial system when he or she would be proved found guilty in a court of law by a jury of peers or common citizens. On the functioning of the U.S. court system, we find that the important elements of a democratic society would be the presumption of innocence and a just and speedy trial by the jury. The framers of the U.S. constitution in 1787 established the judicial branch of government. This involves the administration of justice at each and every level. This would include administering justice on the basis of separation of powers to the local justice of peace and the magistrates and starting from the U.S. Supreme Court. More than that, the fourteenth Amendment to the Constitution, which was ratified in 1868, provides that no state shall hold the duty to make or enforce any law, which would affect the privileges or immunities of citizens of the United States. At the same time no state shall hold the responsibility to deprive any person of life, liberty or property, without access to the due process of law. Again the state shall not deny the equal protection of the laws to any person within its jurisdiction. In the criminal justice system, the offices of the public prosecutor, private attorney and the public defender hold prominence.

Let us first have a look at the role played by the public prosecutor. In the criminal justice system there is a very key role for the "federal prosecutor" to display. In the United States the prosecutors are the key roles in any court trials. They are the persons responsible for the initiation and conduct of proceedings in the case of proving criminal acts. It is their duty to have a review of all arrests made and looks into the complaints, which are filed. The prosecutor also enables in setting bails and making a negotiation of the plea bargains. The prosecutors also have the duty to recommend sentences in cases of those who are convicted. (Stuart 1997, 134). In the court of law the public prosecutors represent the federal government. Their duty is to prove that a company or person has been found guilty of having committed a crime. But it is for the federal prosecutor to see that he behaves fairly and provide justice to the concerned citizen of the country, remembering also that he or she is the representative of the court. Some of them are known as the "United States Attorney." The total number of them is 93. Each of them is appointed by the President then approved by the Congress and later the Senate confirms the appointment. The term of service for the "United States Attorney" is four years. Depending on the size of the state it may be divided into different area or "districts," each having a United States Attorney appointed by the President.

Normally, as soon as a crime takes place, the prosecutors are called for consultation on the procedure to be followed. In the Federal Government, the prosecutors are often assisted by investigators appointed by agencies in collecting and providing information to them. The Federal Bureau of Investigation (FBI), the United States Secret Service (USSS), the Bureau of Alcohol, Tobacco and Firearms (ATF) the Drug Enforcement Administration (DEA) are examples of such agencies. The investigators appointed by such agencies assist prosecutors in understanding details of the case by explaining to them the sequence of events at the site of crime, and about the witnesses. Many a time a number of such agencies are involved, but the prosecutor could even work with a single agency. (Stuart 1997, 135).

When once the prosecutor decides that there can be a case, it is for him to confirm by using all statements and information he has, that there is a "strong case" before the Government -- a case in which all the facts lead to a specific person or persons who committed the crime. Before coming to a final conclusion he considers direct and circumstantial evidences. The information provided by the witness who saw or heard a crime take place, or the video/audio tape of someone committing a crime, all are "Direct evidence or testimony." The information or statement(s) obtained indirectly, or not forming part of the first hand information is the second type of evidence, viz. "circumstantial evidence." People's impressions about an event that they did not set, but has actually taken place also come under this category. After assessing information he had from the investigators, and also considering the information he collects by talking with people involved, the prosecutor then decides whether to "indict" or "charge" the case. A formal notice to the effect of the person having committed a crime is given to the person when he is charged or indicted. The prosecutor may present the evidence to an impartial group of citizens called "Grand Jurors," as well. Evidence may be shown to the Grand Jury and witnesses called to testify, and a simplified outline of the case presented to its members. (Stuart 1997, 135).

Prosecutors give advice and also try to prove the guilt of the defendant in the court of law. The prosecutor, as and when a case goes for trial, try to convince the jury which are a group of citizens, that the defendant is a culprit and holds that he should be punished. Prior to the beginning of a trial there is a long preparation, taking even weeks and months. This pre-trial case is like a homework done. The prosecutor becomes familiar with the facts of crime; he also talks to the witnesses and studies the evidence, anticipate troubles that could come forth during the trial and then prepare the course of action. He may even study certain statements and sentences by repeating frequently that he could present it in the court during the trial with ease, and the name given for such practice is "moot court." One of the preliminary steps in this preparation is talking to the witnesses who may be called in the court for testifying. Another step in the process called "Discovery" also is a must wherein the prosecutor provides the defendant with copies of material and evidence that may be used in the trial. The prosecutor is obliged to provide the defendant with documents or information that may be used in the trial of his or her case. This process takes place many a time from the beginning of the trial to its end. (Ciampi 1999, 219).

If and when a prosecutor fails to do so, the court may expose him to fines or sanctions. And when the case with the prosecutor is very strong with a number of witnesses ready to testify against the defendant, the government makes an option for the defendant to admit his guilt or proceed with the trial and this is known as "plea agreement." The prosecutor has also to respond to, or file "Motion of Limine" before the trial begins. "Motion" is an application made by a prosecutor or defense attorney to the court, requesting it to make a decision before the trial begins. And the motion can influence the trial, the courtroom, defendants, evidence or testimony very much. On arriving in the court on the day of trial, the prosecutor and the defense attorney has to agree on the jurors on the case. The selection of the jury should be beyond any discrimination against any group of people. As the government is supposed to prove that the defendant is guilty, the prosecutor makes the first opening statement and he then makes the "direct examination " of his first witness. With this first step by prosecutor in the direction of proving the case, the trial can go for many days or can be over in a few minutes as well. (Stuart 1997, 136).

The prosecutor may introduce any weapon or something else from the scene of crime as evidence during direct examination. After the cross examination of the witness by the defense attorney, the prosecutor asks the witness a few final questions that the jury may be clear on any confusing testimony, which is called "redirect examination." On the completion of the direct, cross and redirect examinations the prosecutor would rests his case.

This is the moment when the prosecutor is almost confident that the case will prove with the testimonies of witnesses and evidence presented. Once the prosecutor rests, the government cannot produce any more witnesses in the court or any fresh evidence introduced. The final opportunity for the prosecutor to talk to the jury is at the closing argument. These closing arguments are meant to summarize the evidence and testimony and to ask the jury to give its verdict in favor for the government. (Ciampi 1999, 219).

Now let us look at the role played by the private attorneys. The legal system has its effect on almost every aspect of our society. And lawyers play a very important role in society by being able to form the backbone of the legal system. Hence their positions hold high responsibility, and they have to follow strict code of ethics. These lawyers, or attorneys as they are often known, act as advocates and at the same time as advisors. As advocates they represent one of the parties in criminal or civil trials, present evidence on behalf of their clients, and argue in their support. And as advisors, they guide their clients on their legal rights and duties and give suggestions on the course of action to be followed in business matters as also in their personal matters. They research on the intentions of laws and judicial decisions, and apply them to the precise and particular situations their client face, as they act either as an advocate or as an advisor. Depending upon the field of specialization of the lawyer, the detailed aspects of his or her job also vary. Though all lawyers are licensed to represent parties in court some frequent while others don't. Based on the field of specialization the quality required also may vary, and thinking quickly and speaking with ease and authority are essential for trial lawyers, who specialize in trial work. Familiarity with courtroom rules and strategy are also important for them. Yet many of these trial lawyers spend a major part of their time outside the courtroom in preparation for the trial, interviewing clients and witnesses, conducting researches and handling other details.

There are a number of different specializations for lawyers, like bankruptcy, probate, international, elder law and the like. For example the public interest groups, waste disposal companies or construction companies may be represented by the specialists in environmental law, in their dealings with the U.S. Environmental Protection Agency (EPA) and other Federal and State agencies. Assistance is given by them to their clients in preparing and filing for licenses and in applying for approval before proceeding in certain activities. They also represent their client's interests in administrative decision- makings. Some specialize in the field of intellectual property, and help protect their clients' claim to copyrights, artwork under contract, product designs computer programs and the like. Those specializing insurance advise the insurance companies in legal implications of their transactions. They underwrite insurance policies in conformity with the law and protect those companies from unwarranted claims. They review claims when filed against insurance companies, and represent them in court. A vast majority of lawyers are engaged in private practice, concentrating on criminal or civil law. (Occupational Outlook Handbook, 2002-03, 45).

Some other private lawyers work for legal-aid societies, which include private, nonprofit organizations, established to serve disadvantaged people. They handle mostly civil cases and criminal cases handled by them are but few in number. And a few of the trained lawyers work in law schools, mostly as faculty members specialized in one or more subjects, but some work at administrative levels. Some others go for a dual set up -- a nonacademic full time work and an academic part-time job. To perform the various tasks more efficiently, they use various forms of technology too. Those in criminal law represent clients on charges with crimes and plead for them in the court of law. And the private lawyers dealing with civil law assist their clients with litigation, titles, contracts, mortgages, wills, trusts, and leases. Some others handle cases of public interests-criminal or civil-which have wide impacts well beyond the level of individuals. A single client employs some lawyers on a full time basis. Such a lawyer is called "house counsel" if the client is a corporation, and advises the company on legal issues which has links to its business activities. Property interests, patents, government regulations, contracts with other companies, and collective bargaining agreements with unions are some of such legal issues handled by these lawyers. (Occupational Outlook Handbook, 2002-03, 45).

By 2000, there were about 7 hundred thousands of lawyers working at various levels. About 3/4th of them were private practitioners, engaged either in law firms or in solo practices. A large majority of the remaining had government jobs, a major part of it functioning at local level. House counsel by public utilities, banks, insurance companies, real estate agencies, manufacturing firms, welfare and religious organizations, and other business firms and nonprofit organizations constitute a majority of the private attorneys. Only persons who are licensed or admitted into the bar, under rules and regulations established by the highest court of jurisdiction can practice law in the courts of any states or other jurisdiction. The general norm for all states is that the applicants for admission to the bar must a written bar examination, while some other jurisdictions call for an additional pass in a separate written examination in ethics. Lawyers having a minimum specified period of experience, and meeting standards of moral character may get admission to the bar in another jurisdiction if he or she is already admitted to one of them. Federal courts and agencies set their own levels of qualifications to practice before them.

In most states an applicant must, under normal circumstances, have a college degree and graduation from a law school accredited by the American Bar Association (ABA), or the proper State authorities, to qualify for bar examination. Only those law schools meeting certain standards, specifically in their library and faculty, developed to promote quality legal education can get the ABA accreditation. Though there are many law schools approved by state authorities only 185 are accredited by ABA. Except under exceptional conditions, the students graduating from law schools not accredited by ABA, may take bar examinations and practice only in the state or other jurisdiction in which the school is locate, and most of such schools are in California, which is the only state in which law can be studied by correspondence also. Six states accepted the study of law in a law office as qualification for taking the bar examination, in 2000. For many states it is mandatory for the students go for registration and approval by the state board of Law Examiners, before entering or in the early years after entering the law schools. There is no nationwide bar examination, but 48 States, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands require the 6-hour Multi-state Bar Examination (MBE) as part of the bar examination. The MBE covers issues of broad interest and is sometimes given in addition to a locally prepared State bar examination; but it is not compulsory in Louisiana and Washington. (Occupational Outlook Handbook, 2002-03, 45).

Practice of law warrants significant responsibility. Those who opt for law as a career must have a liking for working with people. They should also be able to win the respect and confidence of their clients, associates, and the public. To equip them with ability to analyze complex cases and handle new and unique legal problem, they must develop inherent qualities like perseverance, creativity, and reasoning ability. Beginners often go for a salaried job, usually start as associates and work with more experienced lawyers and judges. After several years of experiences, when they are prepared to take responsibilities, may be admitted to partnerships in their firms or some lawyers go for practice by themselves. An occasional transfer from one department to another in certain large corporations is considered good for gaining experience, and sometimes it forms a rise in ranks of management.

A steady growth in the employment of lawyers is expected through 2010. Population growth and the growth in general business activities indicate an increase in demand for lawyers. Growth of legal action in areas like healthcare, intellectual property, international law, elder law, environmental law, and sexual harassment also point to the increasing demand for lawyers. More over the wider availability and affordability of legal clinics and prepaid legal service programs is another field wherein increased use of legal services by middle-income people could be there. But fact that many businesses go for the services of accounting firms and paralegals, in an effort to reduce expenditure put a limit to the increase in demand for the lawyers. As an example we can take accounting firms providing employee-benefit counseling, process documents, and handling of various other services previously performed by the law firm, posing a threat to the demand for lawyers. Mediation and dispute resolution also are in a developing stage, indicating a limit to their demand.

A large number of students graduate every year from law schools and hence hefty competition for job openings is likely. Graduates from well-regarded law schools, coming out in flying colors may find the best job opportunities. Due to the job competition for attorneys, lawyers are entering into nontraditional fields like administrative, and managerial, and business positions in banks, insurance firms, real estate companies, government agencies, and other organizations, where legal studies is not essential, though considered an asset. Employment opportunities in such organization are growing at a steady rate. The competition may force some law graduates to seek job outside their qualifications or interests; and find placements in temporary staffing firms. They give short- term jobs to these attorneys until they find a permanent position. (McCormack, 1987, 126) This is helpful for the companies in that they can hire lawyers as and when needed; and for those lawyers also it is helpful in that they can develop practical skills this way and can try for permanent jobs.

This heavy competition gives importance for work experience and geographic mobility. If they are willing to move from place to place they may find getting a job easier, but it often necessitates taking of an additional state bar examination to get licensed at the state of migration. Employers too seek graduates with advanced law degrees and added experiences in fields like tax, patent or admiralty law. As businesses and all levels of government employ more and more staff attorneys, salaried jobs can be the point of concentration for lawyers; besides there is growth in employment in the legal services industry, in large law firms. Most salaried jobs are centered in urban areas where government agencies, law firms, and big corporations are in plenty. As there is difficulty in establishing a profitable new practice with continued competition from larger and established law firms, the number of self-employed lawyers is on the decrease. The growing complexity of law, that requires specialization, coupled with increasing cost of maintenance for the latest research materials favors larger firms, and put a limit to the scope for new self-employed lawyers. For these lawyers small towns and expanding suburban areas could be a place for flourishing practices. There the expenditure required to establish them will be less, in a short span of time they can become popular among potential clients, and there is no much competition from larger established law firms. (O'Connor 1998, 14).

Ups and downs are common in the case of some lawyers as far as economy is concerned. At times when the demand declines due to recessions, demand for certain legal services like planning estates, drafting wills, and handling real estate transactions reduce and thereby the income of these lawyers too. Also budgetary restrictions may regulate sales and profits and at such times corporations do not usually go for litigation of cases. There may not be any requirement for new attorneys at some corporations and law firms until times as their business improves, and some may even cut staff to reduce costs. But in these times also there may be requirement for lawyers for solving other legal problems like bankruptcies, foreclosures, divorces etc. requiring legal action. Salaries of experienced lawyers vary according to the type, size, and location of their employees. Usually lawyers who are partners in law firms earn much more than those having their own practices. Lawyers with own practice may have to supplement their income with part-time work until they have their practice well established. Most of the salaried lawyers get health and life insurances as also some contributions towards retirement pension plan. Independent legal practitioners get such coverage only if they pay for these benefits. (Occupational Outlook Handbook, 2002-03, 45).

Now let us have an understanding as to the role played by the public defender. The right to a lawyer for a person accused of a crime was given one of the first priority, on creation of Bill of Rights by the founders of this country. This right is embodied in the sixth Amendment to the United States Constitution. But it took a long time as 1963 till the United States Supreme Court decided that an attorney could be provided at the government's expense to a person who cannot afford one. It was in this year that the U.S. Supreme Court announced the landmark case of Gideon v. Wainwright, 372 U.S. 335. As the court granted the petition of Clarence Earl Gideon, a Florida Prison inmate, it also entitled all who were accused of major crimes for legal course in the state courts. The constitution of the United States and the Constitution of the State guaranteed this right to a lawyer for all arrested and charged with a crime. And all such persons who could not afford to engage a lawyer were provided one by the state. The office of public defender was initially founded to provide legal counsel to poor defendants charged with accusable offences. But today, besides the aforesaid function, the office also provides attorneys to represent children and parents in cases of abuse or neglect. (Feeney, and Jackson 1991, 361)

This office provides the poor clients the representation made mandatory by the constitution at voluntary and involuntary psychiatric commitment hearings, and offers dispute-resolution services that can help parties entangled in civil litigation go for out-of-court settlements, saving them with millions of dollars in attorneys' fees and court time. But lawyers in the Federal Public Defender's Office can give legal advice to someone only if the court approves the appointment of an attorney. And it is to be noted that the attorney is permitted to give legal advice and representation only on matters related to the criminal charges for which he is appointed. The responsibility of the Public Defender in this case is limited to represent those person arrested or charged with a crime, but cannot afford to engage a lawyer. The Public Defender is assisted by many skilled attorneys, known as 'Assistant Public Defenders', and employs them for the purpose. The public defenders are concerned only with protecting the rights of the defendant they represent and they do not work for the police or the Attorney General. (Feeney, and Jackson 1991, 362)

In the Department of Administration a Public Defender Agency is created by the U.S. constitution, according to Sec. 18.85.010, to serve the needs of defendants who are financially poor. This agency is administered by the public defender. It is for the governor to appoint the public defender from among two or more persons nominated by the judicial council for the purpose, and subsequently confirmed by a majority of the members of the legislature, in joint session. The tenure of a public defender is four years. But this tenure can be extended by another term of four years by the governor if he prefers so. In this case he need not call for nominations from the judicial council, but has to get the approval of the majority of the members of the legislature in a joint session. The governor can also remove the public defender for any good cause, and in this case the governor is supposed to submit a report detailing the reasons for the removal, to the legislature. In case the legislature is in session the report is to be submitted in 10 days after the removal, and if not in session then within 10 days after convening of the next session- special or regular. And if the position of the public defender goes vacant for any reason, the governor may appoint an acting public defender to serve until the regular appointment procedure is complied with, as under AS18.85.010.both the governor and the judicial council will have to act under AS18.85.010 at the earliest, after the position go vacant. The new appointee under this section also gets a term of 4 years. (Feeney, and Jackson 1991, 361) person is eligible to be the public defender or an assistant public defender only if admitted to the practice of law in this state within 10 months of the commencement of his employment by the agency. The public defender and assistant public defenders are to devote all of their time to the duties of their respective offices, and may not engage in the practice of law except in their official capacities in the agency. The public defender can assign the functions vested in him or in the agency, to subordinate attorneys and employees. He may appoint and remove assistant public defenders, investigators, clerks, stenographers, and other employees he considers necessary to enable him to carry out the responsibilities, of the public defender, subject to existing appropriations. And each of them, appointed by him to a subordinate position, is also under his supervision and control. (Public Defender Act)

The public defense function in its totality is independent, and includes the selection, funding and payment of defense counsel. It should be free from all political influences, and be subject only to the judicial supervision, that too in the manner and to the extent as retained counsel. In order to safeguard independence and to promote efficiency and quality of services, the defender, assigned counsel, and contract systems is monitored by an independent board of attorneys and non-attorneys. If this monitoring is removed it will ensure judicial independence from undue political pressures, and is an important factor of furthering the independence of public defense. The selection of the chief defender and staff must be made on the basis of merit, and recruitment of attorneys should involve efforts aimed at achieving diversity among the attorney staff, wherever the defense office is in the state, and as the responsibility to provide defense service lies with the state, state funding should be there. And a statewide structure to ensure uniform quality of the public defense service throughout the state also is the responsibility of the state. (Feeney, and Jackson 1991, 361)

The economically weaker criminal defendants are provided with court appointed legal representation, and this plays a key role in the criminal justice system of the nation. Three fourth of the state prison inmates and about half of the federal prison inmates were reported as assisted in the year 1991,by court appointed lawyer to represent them for their offences for which they were sentenced. And in the year 1989 as much as 80% of the local jail inmates were reported as indicated to the legal assistance provided to them for charges for which they were held. This report is based on selected findings taken from Bureau of Justice Statistics (BJS) surveys related to defense of indigent (poor) criminal defendants. The sixth amendment to the U.S. Constitution establishes the right to counsel in federal criminal prosecution. And through a series of cases the U.S. Supreme Court extended the right to counsel for indigent defendants to state criminal prosecution. In 1963 when the Court held in Gideon v. Wainwright (372 U.S. 335 [1963]) that a defendant charged with some major crimes had the right to counsel, it was a landmark decision. And about 10 years later the indigents right to counsel was extended to all criminal prosecutions, including the ones like felony, or misdemeanor that carried a sentence of imprisonment. (Argersinger v. Hamlin (407 U.S. 25 [1972]). (Bureau of Justice Statistics, 1996, 5)

Four decades have elapsed since the United States Supreme Court ruled (Gideon v. Wainwright) that the Constitution guaranteed legal representation to the criminal defendants, irrespective of their ability to pay. But putting this promise into real practice - providing high quality legal representation for criminal defendants who can't afford to hire a lawyer-is a tough challenge, specially as the governments are under pressure to cut costs. The Supreme Court made, providing free counsel for indigent accused mandatory, but as on how each state is to provide such service is not explained properly. But the states have developed certain systems and rules for organizing and funding mechanisms for providing representation for the poor criminals. Mainly three systems emerged as primary means through out the country, to provide these free representations or counsel. Public defender programs are non-profit private or public organizations with full or part-time salaried staff. In about 28 states this system is mainly in use to provide these services to the poor defendants. Assigned counsel system is the one in which the court appoints, private attorneys from an available list to provide these services as and when required. And the third, Contract attorney system is the one in which the governmental units come in to an agreement with private attorneys, bar associations or private firms to provide these services against a fixed amount for a specific period of time. The federal justice system provides these services, through Federal Defender Services, community defender organizations, and private attorneys as established by the Criminal Justice Act of 1964, with its amendments, to the eligible defendants.