Comment. JM 9-27.440 concerns plea agreements with “Alford” pleas – admissions of guilt by defendants who nevertheless maintain their innocence. In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court held that the Constitution does not prohibit a court from accepting a guilty plea from an accused who simultaneously maintains his or her innocence, as long as the plea is made willfully and intelligently and there is a solid factual basis. The Court held that there is no substantial difference between a plea by candidate nolo, in which the accused does not expressly admit guilt, and an admission of guilt by a defendant pleading guilty. Despite the constitutional validity of Alford`s pleas, such pleas should be avoided except in the most unusual circumstances, even if it is not an agreement and the action would cover all pending charges. As one court put it, “the public could not understand or accept the fact that an accused who denied guilt could nevertheless plead guilty and go to jail.” See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971).
As a result, it is often preferable for a jury to settle the factual and legal dispute between the government and the defendant, rather than encouraging government lawyers to plead guilty in circumstances that the public might consider questionable or unfair. For this reason, prosecutors should not enter into Alford-Plea deals without the approval of the U.S. Attorney and Deputy Attorney General. However, in addition to refusing to enter into an agreement, the extent to which the Department can express its rejection of Alford`s pleas may be limited. While a court may accept a plea from the nolo contendere after considering “the views of the parties and the public interest in the effective administration of justice” (Fed. R. Crim. P.
Rule 11(a)(3)), at least one court has found that a refusal to accept an admission of guilt constitutes an abuse of authority “simply because the accused does not admit the facts alleged.” United States v. Gaskins, 485 F.2d 1046, 1048 (D.C. Cir. 1973); see also United States v. Bednarski, op. cit. United States v. Boscoe, 518 F.2d 95 (1st cir. 1975). Nevertheless, prosecutors can and should discourage Alford`s pleas by refusing to accept the dismissal of charges when an Alford plea is offered on less than all pending charges. As with guilty pleas in general, if such a plea is filed for less than all charges and accepted by the government`s appeal, the government attorney should go to court on all remaining charges that are not excluded on grounds of dual jeopardy, unless the U.S. attorney or in cases handled by the department`s prosecutors.
The appropriate Deputy Attorney General authorizes the charges to be dropped. Prosecutors should also take full advantage of the opportunity offered by Article 11(b)(3) in an Alford case to thwart the accused`s efforts to convey a public image of innocence. Rule 11(b)(3) requires the court to be satisfied that there is a “factual basis” for an admission of guilt. However, the rule does not require that the factual basis of the plea be provided solely by the defendant. See United States v. Navedo, 516 F.2d 29 (2d cir. 1975); Irizarry v. United States, 508 F.2d 960 (2d cir. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. 1975). Accordingly, in Alford, government counsel should strive to provide the strongest possible factual basis for the plea in order not only to comply with the requirement of rule 11(b)(3), but also to minimize the negative impact of Alford`s pleadings on the public perception of the administration of justice.
MALICIOUS PROSECUTION or MALICIOUS ARREST: misdemeanor or legal remedy. These terms include gratuitous prosecution or arrest by a prosecutor in criminal proceedings or by a complainant in civil proceedings without probable grounds in due process and proceedings, which the facts do not warrant, as the result shows. At the beginning, the lawyer must keep in mind that he must present evidence admissible at trial sufficient to obtain and uphold a conviction, otherwise the government will suffer a dismissal or overturning on appeal. For this reason, he must not include in any piece of information or recommend in an indictment that he cannot reasonably expect it to be proven beyond doubt by legally sufficient and trial-admissible evidence. When entering into a non-suit agreement, government counsel should, to the extent possible, explicitly limit the scope of the government`s undertaking to: comment. While these documents are intended to promote uniformity in the application of federal criminal laws, they are not intended to standardize federal prosecutors in all regions of the country at the expense of the fair administration of justice. Different offices face different conditions and have different requirements. Recognizing these realities, and in order to maintain the flexibility to respond fairly and effectively to local conditions, any U.S. Attorney General overseeing law enforcement has the authority to modify or derogate from these principles as necessary in the interest of fair and effective law enforcement in the district. In situations where a significant change or deviation is considered a political or regular practice, the appropriate Deputy Attorney General and the Deputy Attorney General must approve the measure before it is passed.
The person bringing the action is the plaintiff, and the accused person is the defendant. They are the parties to the dispute. Often there are several parts on one side. The defendant may raise a plea which, if proven, will defeat the plaintiff`s claim. A counterclaim may be brought by the defendant against the plaintiff or a counterclaim against another party on the same side of the dispute. The law may permit the combination of two or more claims, such as a property damage claim and a bodily injury claim, as a result of a car accident; or it may require the actions to be joined by a court order. If harm or injustice is likely, the court may order a separation of claims into different disputes for different parties. A request by a creditor to give the creditor the creditor`s opportunity to bring an action against the debtor or its assets, which would otherwise be prohibited by the automatic stay.
A person appointed in a Chapter 7 case to represent the interests of the bankruptcy estate and creditors. The functions of the liquidator include reviewing the debtor`s application and schedules, liquidating the assets of the estate and distributing them to creditors. The liquidator may also bring actions against the creditors or the debtor in order to recover ownership of the bankruptcy estate. Modified in the context of malicious prosecutions, the standard is “whether a reasonable lawyer would have considered the claim arguable” (Sheldon Appel Co. v. Albert & Oliker, op. cit., 47 Cal.3d p. 886), a standard that is met if the issues set out in the underlying claim were arguably correct, even if it was extremely unlikely that the client would win (id. p. 885).
Section 707(b)(2) of the Insolvency Code applies a “means test” to determine whether an individual debtor`s Chapter 7 submission is considered to constitute an abuse of the Insolvency Code requiring dismissal or conversion of the case (usually Chapter 13). Abuse is suspected if the debtor`s total current monthly income (as defined above) over 5 years, less certain legally eligible expenses, is greater than (i) $10,000 or (ii) 25% of the debtor`s non-priority unsecured debt, provided that this amount is at least $6,000. The debtor can only rebut a presumption of abuse by proving special circumstances justifying additional expenses or adjustments to current monthly income. The time at which an action can begin depends on the type of action. A plaintiff may not bring an action until the cause of action has arisen. For example, a man who wants to use land for a business where only houses are allowed must first apply to the local zoning board for a variance. He cannot bypass the commission and sue in court. His right of action exists only if the Régie dismisses his application.
In criminal law, the constitutional guarantee that an accused receives a fair and impartial trial. In civil law, the legal rights of a person who is confronted with an adverse act that threatens liberty or property. A lawsuit may be closed for dismissal before both parties have fully presented their arguments in court. It can also be terminated on the basis of a compromise and settlement, after which the claimant withdraws his claim in court. In one of California`s leading cases, the Supreme Court granted a review in Sheldon Appel “to consider a number of issues related to the proper determination of probable cause in a malicious prosecution, including whether a plaintiff can prove no probable cause by proving that his or her former opposing counsel failed to conduct appropriate legal investigations.” (Sheldon Appel Co.