Of PDs and Private Counsel

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.)

7 Comments

  1. Any empirical study of this issue would be fraught with problems from the start. There are so many variables involved. Even if you tried to keep it simple and simply analyzed retained results vs. PD/appointed attorney results, the fact remains that every case is different. In addition, built-in socio-economic factors that have nothing to do with the quality of counsel come into play. One would have to answer a list of questions before any such attempt at research could possibly have much validity or value, such as:

    1. What is the breakdown, percentage-wise, between retained and indigent cases? (If one side has a distinct majority, it might skew the data.)

    2. What demographic or socioeconomic factors independent of the competence of counsel might influence the outcomes? (e.g., Do rich people commit as many serious offenses, per capita, as poor people do? Are indigent defendants more likely to have prior convictions? What affect does the release of a defendant on bail have on the the ultimate outcome?) Experienced attorneys can take an educated guess at the answers to all of these, but unless you have statistics it feels more like an instinctive response than a scientific one. The mere addition of race as a demographic field in the study above does not account for the possibly-more-important economic factor.

    3. What, if anything, is the actual value of a good working relationship? Lawyers “working together to dispose of cases” may indeed get a good deal on certain cases for clients. But, on the other hand, as Mark pointed out, such a relationship may inhibit the defense attorney from pushing as aggressively for a dismissal as she should or from trying the case to a possible acquittal. MY gut instinct is that such a relationship is beneficial to defendants whose guilt is not really an issue and for whom leniency is the best possible outcome, but less beneficial to defendants against whom the charges are borderline and/or the evidence challengeable.

    I cannot imagine a study that could ever accurately account for all these variables. The quality of criminal defense attorneys, both retained and appointed, varies widely. There are plenty of schmucks-for-hire who will get your ass sent to prison once they get their $500. And there are lots of PDs and indigent defenders with whom I would trust my life. There are plenty of “whales” out there that are virtually unwinnable, just as there are “dogs” out of which even a trained chimpanzee could get an acquittal. How can you ever measure such results? Even a devoted baseball statistician would be stumped.

  2. How do you measure this? The variables are overwhelming.

    There is certainly no love lost between my office and the rest of the “courtroom workgroup.”

    My gut says hire the best attorney you can–but if all you can afford is the $700.00 lawyer that stalks the halls, then let the PD handle the case. The difference is probably better measured by attorney instead of by appointed v. hired.

  3. I am a capital defender in a major metropolitan public defender’s office. In my humble opinions, public defenders are as good as their office is funded. In my capital unit, we have 10 fully funded capital teams (2 lawyers, 1 investigator, 1 mitigation specialist, and 1 paralegal); and trust me, we need all 10 teams (think more capital cases than Houstan and LA combined and you would know where I practice)

    The trial divisions have access to a group of investigators, paralegals, and yes, they even have access to non capital mitigation specialist. Additionally, our specialty units (DUI, Juveniles as adult offenders) also have their own accident investigators, paralegals, etc. The lawyers that want an office blackberry have one. Our lawyers know that if they send out a SOS during trial…they will get an instant answer from our Appeals section on down the ladder.

    Each unit: capital, trial, speciality units have the funds available and accessible to hire necessary experts. Our salary is pretty damn good for a public agency. I have no idea how new york public defenders survive on their salary.

    If it sounds like I’m bragging..perhaps I am; my office is damn good at providing quality indigent defense, providing a quality work environment, and prides itself on making state prove its case every step of the way. When I first joined the office, my supervisor told me, “see that sign Ms. WAshington, it say’s Trial Group, not Plea Group; take em to trial”.

    That being said, our PDs have no interest (pecuniary, time management) in being a part of any court room “work group”. Now, I can imagine all the PDs who don’t have near as much as my office (I’ve met them at seminars) don’t have the luxury of being adversarial all the time. I feel for them. They dont’ get the support from management and government in teh way of funds and personnel and the clients suffer. The lack of funding, support, personnel is conducive to going along to get along. If indigent defense agencies were as well funded as my office, public defenders would kick ass and take names on a daily basis…and do it so well that their funding gets threatened every budget planning session.

    In the words of the many, “don’t hate the player, hate the game”. Don’t get me started on private Knapp Counsel…ughh.

    1. Hartley’s conclusion could very well be true. But it’s not supported by his statistics. His explanation for it—the “courtroom workgroup” theory—is repugnant, and should rightly be offensive to those public defenders who, properly funded and supported, do get great results for their client.

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