Defending People

Posted By Mark Bennett on September 4, 2010

Who is this a picture of?

Step back from your computer ten or fifteen feet; who is it a picture of now?

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Posted By Mark Bennett on September 3, 2010

I had just explained to the jury all the reasons that the government’s star witness couldn’t be believed (based on his criminal history): he’s a thief, and thieves lie; he’s a robber, and robbers lie; he’s an organized criminal, and organized criminals lie; etc.

Government lawyer Connie Spence gets up for her closing argument. “You know who else lies?”, she screeches.

“LAWYERS lie!”

And she writes the word LAWYERS in big red letters on the flip pad.

I went back to the courtroom today to get that page from the flip pad. I’m going to get it framed and hang it in my office, and every time I look at it I’m going to laugh.

Category: argument, arrogance | 17 Comments »
Tags: Dunning-Kruger

Posted By Mark Bennett on August 29, 2010

Before I euthanized my account there, I had hundreds of “friends” on Facebook. Most of them I knew only slightly; some of them I didn’t even really like. Precious few of them were genuine friends.

Someone (I wish I could find a link to give proper credit) coined the term “frends” to represent those online acquaintances—similar to friends, but not quite—a variance that makes all the difference in the world.

A true friend is one who, when he finds out you are in trouble, will drop what he is doing and do what he can to help. Want to know how many genuine friends you have? Get charged with a serious crime.

Who tracks you down when you’ve disappeared into the maw of the criminal justice system? Who visits you in jail, just to talk? Who puts money in your inmate trust account? Who bails you out? Who picks you up in the middle of the night when you get out? Who returns your lawyer’s calls? Who drags you to rehab? Who gives you rides to and from court? Who keeps you company when you’re there?

Who, in other words, sticks with you even when your problems are entirely your dumbass fault?

True friends are few and far between. It’s a special ethic that most people don’t share; I base this statement on extensive observation of people in trouble. Judge Larry Standley, when he is taking a plea from a young defendant, makes this point. The defendants in Judge Standley’s court are charged with petty crimes, but still, only their parents are standing up for them.

Truth be told, even most criminal defense lawyers don’t have the ethic, though the occupation selects for those who do: sticking with people even when their problems are entirely their dumbass fault is an important part of the job, and those who would do so for love of a friend are naturally willing to do so for a living.

Facebook devalues friendship by calling something that when it isn’t truly: six hundred frends, and if you’re extraordinarily lucky two or three friends.

Who are your true friends? (A benediction: May you never find out!)

More importantly (and more in your control), are you a true friend?

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Posted By Mark Bennett on August 25, 2010

I’ve been on a tear about Hartley, R.D., et. al.’s Do you get what you pay for?

Aside from their sloppy writing and questionable conclusions, the collaborators wrote a couple of things that really ticked me off.

First, they consistently wrote about what happens to human beings in a criminal courthouse as “case processing,” as in:

Public defenders, like prosecutors and judges, want to ensure the smooth and efficient processing of cases.

That’s downright libelous to all of the ethical and conscientious public defenders who, rather than wanting to ensure the smooth and efficient processing of cases, want to make it as difficult as possible for the state to put their clients into boxes. We’re not making Soylent Green, we’re fighting for souls. Some prosecutors and judges may think of what they do as case processing, but nobody who shares that view is welcome at the counsel table with me.

Second, the authors also wrote several times about “the courtroom workgroup,” as in:

The idea of a courtroom workgroup model of negotiated justice is further supported by the results of the analyses partitioned by disposition type.

and

Some of the criticism of public defense counsel focuses on their non-adversarial relationship with other members of the courtroom workgroup.

You better believe it. Relationships can be friendly, but ours is an adversary system, and any lawyer who thinks he belongs to a “workgroup” with his adversaries is no friend of the Sixth Amendment, and no friend of mine. May posterity forget you were our countrymen.

There are more than enough such lawyers in the private bar, like the federal criminal defense lawyers who think that “everyone gets convicted anyway.” If you ignore acquittals and dismissals (of which they have none, because nobody ever wins by pleading guilty), they might seem to be doing well for their clients—metrics of the sort that Hartley and his colleagues focus on favor the lawyer whose version of advocacy requires knee pads and Vaseline. But such metrics and such lawyers ignore the fact that the more lawyers go along to get along, the more people get convicted of things the government couldn’t prove, and even of things the people didn’t do.

So to Hell with the courtroom workgroup, I say, and to Hell with the processing of human beings. And if you’re one of those “courtroom workgroup” “smooth and efficient processing of cases” criminal defense lawyers that Hartley is talking about, you can go to Hell too.

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Posted By Mark Bennett on August 25, 2010

Those who are released on bail [I think Hartley and his colleagues mean "released on recognizance"] and represented by a private attorney are twice as [they got it right this time] likely to be incarcerated as those released on bail [again, "recognizance"] but being represented by the public defender.

This is an interesting fact.

Recall what I’ve written about the plight of the working poor. Is it possible that those released on their own recognizance and hiring lawyers get a worse result because they are forced to hire a class of lawyer that is not representative of the private bar in general?

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Posted By Mark Bennett on August 25, 2010

The data for this study are from Cook County (Chicago), Illinois, and are a random sample of 2850 offenders convicted of felonies in Cook County Circuit Court.

Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010).

I asked here, if you don’t know whether hired lawyers beat more cases outright than PDs, how can you possibly reach the conclusion that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders?

The answer: you can’t. (more…)

Category: public defenders, statistics | 1 Comment »
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Posted By Mark Bennett on August 25, 2010

Here are some conclusions that can be drawn from Hartley’s data:

In Cook County, Illinois, in 1993, convicted defendants were:

• 1.81 times as likely to have been released on their own recognizance if they were charged with a class 1 felony as if they were charged with a class X felony.
• 2.10 times as likely to wind up incarcerated if they were hispanic as if they were white.
• 1.46 times as likely to wind up incarcerated if they used a weapon as if they didn’t.
• 2.36 times as likely to wind up incarcerated if they were male as if they were female.

Convicted white defendants were 2.74 times as likely to have been released on their own recognizance with a hired lawyer as with an appointed lawyer. (more…)

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Posted By Mark Bennett on August 25, 2010

Various readers generously sent me copies of the Hartley article I mentioned here (Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010)), and I’m puzzling my way through it, giving myself a crash course in statistics on the way.

That crash course is not simplified by the fact that, throughout the article, Hartley and his colleagues are (I finally figured out) using “more. . . than” when he should be using “as. . . as,” as in:

Property and drug offenders are over 3 and 6 times more likely to be released ROR than violent offenders.

What the statistics show is that Exp(ß) for property offenders (as opposed to violent offenders) being released on their own recognizance is 3.20. That is, property offenders are 3.20 times as likely to be released ROR as violent offenders are, or more than two times more likely to be released ROR than violent offenders.

(ß, also b in Hartley’s notation, is the natural logarithm of the mean of results in case 1 divided by the mean of results in case 0. So if the mean of results in case 1 is .32 and the mean of results in case 0 is .1, ß is 1.163 and Exp(ß) is 3.20. Exp(ß) can never be negative, so if an outcome is as likely in case 0 as in case 1 it equals 1—not “one time more likely than” but “as likely as.”)

The first quote in my first post on the subject should say:

Black defendants who retain a private attorney are almost twice as likely to have the primary charge reduced as black defendants who are represented by a public defender.

. . . which is very different than the proposition as Hartley phrased it.

There are other errors in the article. Without picking the nits, Hartley’s first dependent variable, “Pretrial Status (ROR)” is poorly defined. In Table 1, case 1 is defined as “released” and case 2 is defined as “detained or had bail set.” But in the text, Hartley and his colleagues write that “a majority of the defendants (71.3%) had bail set in their case.” Could the authors be that unfamiliar with their own data?

It’s to take such distractingly sloppy writing seriously, but I’ll take a run at it, and write next about the conclusions that Hartley’s data support.

Category: statistics | 3 Comments »
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Posted By Mark Bennett on August 25, 2010

Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender.

That’s a quote, according to Miller-McCune, from a research paper by Richard D. Hartley. (Hartley wrote his doctoral dissertation at University of Nebraska on the same subject.)

The paper costs $20, and I’m probably not going to spring for it (anyone want to contribute?edit: got a copy!), so we may never know how the finding quoted above supports Hartley’s conclusion that “there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders.” Does “little difference” mean the same to Dr. Hartley as “almost two times more likely”? Or do black defendants just not count?

I won’t call it sloppy without reading it, but the methodology of the study is suspect—if you don’t know whether hired lawyers beat more cases outright than PDs, how can you possibly reach such a conclusion? From the Miller-McCune article:

Why are public defenders so effective at representing their clients? One theory, according to Hartley, involves the “courtroom workgroup” model of justice, where the public defender, prosecutor and judge work together to dispose of cases.  He notes that when the system functions in this way, “public defenders are in better positions than private attorneys to negotiate favorable plea bargains and to mitigate punishment.”

So public defenders, “working together to dispose of cases” with prosecutors and judges, do as well as their hired colleagues in getting bail set, getting charges reduced (except for those inconvenient black defendants), and minimizing jail time for those clients who are convicted.

How’s this for a hypothesis worth testing?: that lawyers “working together to dispose of cases” get charges reduced, or minimize jail time, in cases in which more adversarial lawyers would get dismissals or acquittals.

(I don’t know if the hypothesis is correct or not—it’s often true that PDs are among the best criminal defense lawyers in town, and Hartley may, black defendants notwithstanding, be accidentally correct—but it is a plausible hypothesis that Hartley has not excluded and that, if true, would account for Hartley’s data while refuting his conclusion.)

Category: public defenders | 5 Comments »
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Posted By Mark Bennett on August 21, 2010

It took a little over a month.

The Houston Police Department Chief’s Command issued a memo of questionable legality forbidding cops from talking to defense lawyers without permission.

Some 60 HCCLA members, incited and led by former president Robb Fickman, descended upon Houston City Council to protest (video).

And the Chief rescinded the suspect order.

Except he didn’t call it a rescission. He called it a clarification. Because “officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case” is certainly unclear, when what you mean is “permission from the prosecutor is NOT required before speaking to a criminal defense attorney about a pending case.” (All emphasis in original.)

Category: Houston Police Department, doublespeak | 8 Comments »
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