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50 Santa Clara L. Rev. [i] (2010)

handle is hein.journals/saclr50 and id is 1 raw text is: SANTA CLARA LAW REVIEW VOLUME 50 2010 NUMBER 1 CONTENTS ARTICLES WHY DEFENSE ATTORNEYS CANNOT, BUT Do, CARE ABOUT INNOCENCE At a time of special concern for the innocence, this article reexamines the apparent anomaly that trial-level defense attorneys claim they care neither about guilt nor innocence. Innocence currently fuels procedural reforms benefitting criminal defendants, but that effect could change, and innocence might become a wedge issue dividing progressives if reforms promise targeted protection for the innocent. Defense counsel attitudes about the irrelevance of innocence seem to invite such division. I explain why providing excellent counsel for all, not just the apparently innocent, should be strongly supported by innocence advocates. Defense counsel institutionally cannot allow apparent guilt to affect their zealous representation. Although special treatment for those perceived innocent could likewise devolve into second-class representation for many, the problem with special care for the apparently innocent has less to do with institutional concerns than with practical application. Virtually all those charged with serious crimes assert innocence to their attorneys, who possess no reliable way to determine truth in seriously contested cases. Nevertheless, defense attorneys actually do react differently when they believe they have encountered innocence. The hard-boiled defense attorney's unconcern with innocence is a largely necessary attitude, but it is not fully accurate nor universally applied. I find no magic bullet to allow defense attorneys to focus on the likely innocent, only tolerable compromises. Those committed to protecting the innocence should vigorously support adequate resources for defenders who represent the unsorted mass of criminal defendants. Such defenders provide the best hope for many innocent defendants who, lacking clear proof of innocence, are hidden among the guilty. Robert P. M osteller ........................................ SOURCE OF INFORMATION OR DOG AND PONY SHOW?: JUDICIAL INFORMATION SEEKING DURING U.S. SUPREME COURT ORAL ARGUMENT, 1963-1965 & 2004-2009 Three general questions drive this study. First, what influences Justices' levels of information seeking during oral argument in the U. S. Supreme Court? Second, do Justices signal how they are going to vote based on their levels of information seeking? Third, has judicial behavior during Supreme Court oral argument changed over the past four decades? The three main models ofjudicial behavior and decision making-legal, attitudinal, and strategic-all posit different causes for Justices' behavior and voting patterns. In examining information seeking, this study additionally attempted to see if evidence from oral argument points more prominently to one model over the others. Analyzing 7600 sentences from oral arguments transcripts for 35

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