we are real lawyers too
Prosecutors want hazardous duty pay?
Jan 11th
A couple of years ago prosecutors in the State floated a bill asking for hazardous pay. They claimed that defendants threatened and stalked them. I remember the public defender’s office submitting testimony to the legislature saying, essentially, “you think your job is hazardous?”, and providing several examples of public defender employees being the subject of attacks by clients.
Here‘s the latest story. PD Sue Hankins (who is a very nice lady and a pretty damn good lawyer) was in court with a client who wanted her replaced (and perhaps wanted to represent himself – that’s not entirely clear). His motion to “fire” her was denied, so he turned to her, started yelling and then spit on her.
Reality check, folks. Public defenders are more often the subject of clients’ ire than prosecutors or judges. I cannot tell you the number of times I’ve heard clients say: “Well, they’re only doing their job, but my lawyer, man he screwed me.”
They see prosecutors and judges as cogs in the wheel, a part of the system. We, on the other hand, are supposed to be their champions, their protectors. When we don’t give them what they want, they’re angry with us. Sure you’ll have the occasional nutbag that follows the prosecutor home and tries to torch his house, but more often than not, they attack us, they lunge at us, they call us names, they spit on us, they cold-cock us in court. We’re almost always standing next to them or sitting at the table across from them, giving them unpleasant news. They react immediately and almost invariably toward the most accessible person: their lawyer.
So the next time a prosecutor wants to ask for hazardous duty pay, come do our jobs for a bit first.
Selling yourself by trashing others
Dec 30th
For some, blogs are a business. For some, it’s a way to grow their business. But if you’re selling yourself, remember to put your best foot forward. Take Wallin & Klarich and their AV rating. They seem like a normal criminal defense firm located in southern Cali. In fact, I gotta say, their website is pretty snazzy. They have video clips, login for clients and a blog!
Ah, now that’s what interests me. A blog. So let’s have a look. How is this firm going to set itself apart? How is this firm going to attract clientele?
Then I read the latest post and it hit me. I’ve read this blog before. Same MO in the four posts I’ve read: shit on public defenders.
Here’s the latest:
Many people call our office asking if they can appeal their case. The people who call often tell us that their loved one, who is in jail, did not get proper representation. We are often told that the defendant’s public defender did not provide adequate legal advise or did not do proper investigation. Defendants are often told that it is in their best interest to enter a guilty plea by their public defender. After a guilty plea is entered the person accused wants to “appeal” their conviction.
Oh. Ouch. “Often told”? Here’s an earlier post:
As a former public defender I have seen first hand the benefits and consequences to letting a public defender handle your case. Although the public defenders are highly skilled and experienced attorneys, they are severely overworked. They carry a caseload of up to 20 clients a day! What this means for their clients is that the public defender cannot afford to spend more than a few minutes on the client’s case before moving on to the next case. If your case happens to need more research or a closer look, it is possible that the public defender will simply not have enough time to do the necessary work.
The Public Defender is so overworked that they often times fail to build a meaningful relationship with their clients; they simply do not have the time. This means that they will not have the time to sit down with you and listen to your side of the story. They also will not have the time to answer your phone calls and questions.
Wrong, wrong, wrong and even wronger and still wrongest. I mean, this is just plain nonsense! Playing up the stereotypes of overworked public defenders to sell yourself is just damn low.
The sad part is that the first post that I linked to has an important message: if you plead guilty, you need a certificate of probable cause if you want to appeal. But all I see in there is shitting on fellow members of the bar – in the same field, no less! The point of that post could have been made just as effectively if the first paragraph had been left out.
Now, I know crime is down and business is slow, but c’mon, this is serious bullshit. Selling yourself by trashing a large number of your fellow practitioners is not nice and it’s not smart. I guarantee that some public defenders in your jurisdiction have read your blog.
Law firm marketing gurus, what say you?
Lingua lex
Dec 28th
In the past week I have had the pleasure of writing “heretofore” and “therefrom” three times, “hereinafter” four times, “wherefore” twice and “assuming, arguendo” five times. How about you?
Justice does not come cheap
Nov 29th
Radley Balko has this fantastic piece in Reason, making a compelling argument for greater funding for public defender offices nationwide.
His starting points are the high-profile DNA exonerations, the Duke lacrosse case and Kevin Davis’ Defending The Damned [Davis was profiled on our sister blog, PD Stuff, here].
The piece first explores the prevailing perception of public defenders and why it is mistaken.
[Davis’ book] should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there’s actually some merit to the public defender’s familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.
As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone’s freedom, the defendant has an “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’?”
He then tackles the central point: Funding.
Most public defender’s offices don’t have those resources. A 1999 U.S. Justice Department study of the country’s 100 most populous counties found that 97 percent of their law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders. That study didn’t include less populous, rural areas of the country, where the public defender position rotates among private-practice attorneys or is filled by a single lawyer in private practice who receives a stipend of a few thousand dollars per year.
Finally, he artfully tells us why it is imperative that public defenders should have the same resources as prosecutors:
The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.
If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.
Tip of the hat to Skelly. The comments to Balko’s piece are also very interesting. Be sure to check them out.
Two new studies on sentencing disparity and attorney performance
Nov 29th
Stumbled across two new interesting studies last night, both by David Abrams of the Univ. of Chicago Law School. The first one, entitled “Do Judges Vary In Their Treatment of Race” tries to take on the burning question of racial disparity in sentencing from a different angle.
Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants…In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.
The second, entitled The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability, seeks to measure attorney ability (duh).
We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year.
We also examine the correlation between attorney characteristics and case outcomes. Experienced attorneys achieve substantially more favorable outcomes for their clients (defendants) than less experienced attorneys. Defendants represented by more experienced attorneys are more likely to avoid a prison or jail sentence, and those who do receive a sentence serve shorter terms on average. We do not, however, find any statistically significant differences in sentencing based on the attorney’s legal educational background.
Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools. Lastly, and somewhat surprisingly, we find racial disparities in attorney performance: attorneys of Hispanic origin achieve lower average incarceration than all other racial attorney groups.
Well, there you have it. Going to a top tier school has no bearing on your likelihood of success in the public interest field and in criminal defense. This is not surprising to me at all. The closer you are to the top of the tier, the more the focus is on securing lucrative jobs at big firms, which involve writing briefs and – if someone can please, please, explain to me what this means – document review. The towards-the-middle-and-bottom-of-the-tier schools seem to provide a healthy mix of the academia and the practical. That is what prepares you to practice successfully in this field. Not only knowing how to write that darn appellate brief, but also knowing how to try that case first.
HT: Andrew Leigh
Always a failing score
Nov 19th
Keeping score is not something I do as a public defender. I know my “wins”, but there is no tally; there is no scoresheet, no chart. Yet it is something that inevitably comes up once a month when talking to clients. “How many cases have you won?” “Have you tried X type of cases before?”. Essentially, are you good enough to be my lawyer?
People like Bennett, Norm and Scott can legitimately answer that question. Private counsel often have the luxury of choosing their clients. You see a good case, you take it. Case is a deal loser and will require only minimal plea bargaining – you don’t have to waste your time.
For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.
I don’t mind, really. I know there will be more “losses” than “wins”. As an attorney, more of my clients will go to jail than not. This obviously is not the whole picture. What counts as a win and what counts as a loss? Is every case where the disposition you negotiate better than the client’s expectation a win? What if the client has unrealistic expectations? That’s called a no-win.
What of pleas, which make up the vast majority of the dispositions? Is a suspended sentence a “win”? What about a 3 year sentence when the prosecutor was looking for 5?4?
But again, this doesn’t bother me. I can’t really go into a discussion of the meaning of “win” with a client, so there’s a generic response.
On the other hand, with a paying client, it may not be so easy to brush off. Is it a legitimate question to ask of the private attorney you are about to hire? Does it, in a sense, help the consumer in making an informed decision? Or is it just about building trust between the attorney and the client? If that is the case, should I be answering the question instead of the general “I have plenty of experience”?
Yikes. What started out as a pretty straightforward post has becoming confusing. I don’t know the answer. What do you think?
Constitution Day
Sep 17th
Today is Constitution Day. Don’t forget to hug your public defender 
All right, here’s a poll, just for fun:
[poll=14]
Public defender study
Jul 14th
Thanks for all the e-mails pointing me to the public defender study. I guess since the NYT published an article about it today, Big Blawg is posting about it. However, the study was first made available almost 3 weeks ago, when I posted about it here. For those who missed it the first time and want to know what its about, read my post linked to above and then here are some new posts about it.
The news story does have one interesting quote, though:
David Carroll, the research director for the National Legal Aid and Defender Association, said the study’s most important point was economic. “There is,” Mr. Carroll said, “a cost savings in establishing staff public defender offices.”
Yes, there is.
tattoo or not to (tattoo)
Jul 6th
That is the question. Scott of Simple Justice writes about this LA Times article (via Carolyn Elefant) regarding the impact of body art and expression in today’s workplace.
Once associated with drunken sailors, felons and Hells Angels, tattoos have gone nearly mainstream, putting employers in a bind. How to write rules that won’t alienate un-hip customers on the one hand or eliminate talented workers on the other?
Different standards have emerged. A pink rose discreetly inked on an ankle might pass muster at a hospital but not a day-care center; an eyebrow stud will be viewed as charming at one store and a blemish at another.
Law firms are also taking notice:
Many law firms also prefer conventional looks, as Nicole Wool discovered. Six years ago, on her second day as an associate with an L.A. entertainment firm, one of the older partners took her aside and told her to take out her tongue stud.
“I felt so embarrassed,” recalled Wool, 32, who now works for Dr. Tattoff, a chain of tattoo removal studios. “It made me feel like I’d done something bad.”
Being of the more conservative persuasion, Scott writes:
Sexy or rebellious? Well that’s a message I want to send as a lawyer, and receive as a client. After all, who cares if my lawyer is a dope, as long as he’s sexy. There is a message here, but not the one intended by the nice fellow with a half dozen piercings. It says “I’m self-indulgent and immature.” Put aside the sorry reality that there’s nothing worse than some old tattoo on some saggy old body part that nobody will ever be able to look at without retching at some point in the future. It’s like wearing bell bottom pants in the ’60s, but never being able to take them off. Your judgment will forever be showing. Your poor judgment.
I have to say I agree. While I personally am not against these forms of self-expression, I don’t think they have a place in the courtroom. Whether we like it or not, we are treated differently by people based on how they perceive us. In our line of work, it is imperative that we are seen in the best light possible. Most of the times, we are in Court on behalf of someone else and if we are to be presenting someone else’s case to a judge, a jury or a prosecutor, then it behooves us to put our best foot forward. We engage in a profession – a serious profession, and must treat it as such.
As my generation would say: Cover that sh*t up.
Previous coverage: A while back, I considered whether we have a “look”.
[poll=10]
Study shows public defenders are better
Jun 25th
Or at least the results they achieve are better for clients as compared to those represented by CJA attorneys in Federal Court. The study is entitled “An Analysis of the Performance of Federal Indigent Defense Counsel” and is available here [pdf]. The abstract states:
In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.
The study reaches many interesting conclusions. Among them, the impact of this disparity on minorities:
Since the poor in the U.S. are disproportionately from minority communities, inequities in systems that disadvantage them have the unintended consequence of perpetuating discriminatory practices on the basis of race. The use of lower-performing CJA panel attorneys impacts minority communities in several ways. First, as Table 1 illustrates, over 30 percent of indigent defendants are of African-American descent while they constitute only 13 percent of the U.S. population. Furthermore, only 19 percent of defendants who can afford to retain their own counsel are African-Americans. About 4000 cases per year involve minority defendants who are randomly assigned CJA panel attorney. Given the large fraction of defendants of African-American descent, it becomes obvious that poor quality representation may disproportionately affect them.Second, districts with high minority and immigrant populations have a higher fraction of their cases covered by CJA panel attorneys. A simple correlation between the fraction of cases covered by CJA panel attorneys and the fraction black defendants yields a correlation factor of 0.77. This correlation may be due to district specific factors such as cases per year, prevalence of urban centers, and other factors related to local geography and culture.
Third, in districts that do not randomly assign, blacks are significantly more likely to be assigned a CJA panel attorney than whites. Immigrants are also slightly more likely to be assigned CJA attorneys (although this difference is only significant at the 0.10 level).In part this difference is due to selection of cases based on crime type (the inclusion of crime fixed effects explains about 1/3 of the difference in the probability of assignment to a CJA panel attorney between blacks and whites).
The performance gap between CJA panel attorneys and public defenders is larger among non-randomly assigning districts than among randomly assigning districts. This could be due to case selection decisions on the part of the attorneys (i.e. CJA panel attorneys are assigned cases which are more likely to end in conviction).
However, because it is unclear how much of the gap is due to performance, the higher fraction of blacks assigned to CJA panel attorneys raises questions about whether race affects the quality of the representation indigent defendants are assigned. Thus, an initial decision to create a two-tiered system without racial consideration can percolate through the system to have racially-linked negative consequences.
HT: C & F
Private bar caseloads
Jun 18th
No, not that kind of private bar. I mean non-state employed lawyers. What’s your caseload today? Criminal, civil, both, other, doesn’t matter. Post anonymously if you wish, but do leave a comment with the number. I’d like to get as many responses as possible, so please post on your own blog and direct readers here. I want to get a rough estimate of how many cases you carry at a time.
Thanks!
Edit: Ah, what the heck. PDs too.
Did you have a public defender or a lawyer?
Mar 31st
So says State Senator Newton, during a public hearing held on January 31, 2005 on the Anti-Death Penalty Bill. The question was posed to Lawrence Adams, a man from Massachusetts, who spent 32 years in prison (roughly 9 of them on death row) before he was exonerated and released. He came to CT to testify against the death penalty. The transcript reads as follows:
SEN. NEWTON: Thank you. I want to thank you for coming to Connecticut to give your testimony. When was it that they found the DNA, after how many years?
LAWRENCE ADAMS: It wasn’t DNA. It was exculpatory evidence. It took 31 years.
SEN. NEWTON: Thirty-one years?
LAWRENCE ADAMS: Yes.
SEN. NEWTON: Did you have a public defender?
LAWRENCE ADAMS: Excuse me?
SEN. NEWTON: Did you have a public defender or a lawyer?
LAWRENCE ADAMS: In the beginning, I had a public defender.
[CHAIRMAN OF THE JUD. COMMITTEE] SEN. MCDONALD: All right. Senator, I really don’t even know how to address that.
SEN. NEWTON: The point I’m trying to get at, and you all laugh, but this is very serious, is that in some cases, it’s been proven that those who can afford attorneys have a better chance. I’m not saying anything bad about public defenders, but in some incidents, you know, cases have been proven.
If you have a high-price lawyer, you stay out of jail. You know, that is the point I was trying to get to, not to disparage anything about our public defenders throughout this country. When you have your own lawyer, it seems that he might be able to collect that evidence, as you said. You know, that was the only point that I was making.
LAWRENCE ADAMS: It has been my experience, right, that I would say that I was unique in the fact that my lawyer, Mr. John Battarac, did work that I don’t think anybody else could have done. I was fortunate to that extent.
SEN. MCDONALD: Thank you very much. I should just note for the record that actually the Chief Public Defender’s Office has probably the greatest breadth of information in history on the defense of capital cases than any other group of attorneys in the state. Are there other questions? Senator Handley followed by Senator Cappiello.
Then the hearing continues.
Amazing, just amazing. Not like we don’t get crap from our clients anyway, now we have a state Senator who doesn’t acknowledge that public defenders are lawyers. Not once did the Senator make the distinction in terms of public defenders as opposed to private attorneys. He kept referring to private attorneys simply as "attorneys".
In any event, if you have time time, read as much of the transcript as you can – it’s pretty powerful, moving stuff.
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