An article by 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), immediately stirred up some controversy, as one would expect from such a provocative title. No surprise. It’s conclusion, that public defenders are often as effective as private criminal defense lawyers, is simultaneously right and wrong to any lawyer involved in the system.
The problem isn’t the conclusion, per se, but the absurdity of the effort and the damage such an effort can produce. Lawyers are not now, and never have been, fungible. One isn’t the same as the next. There are brilliant public defenders and incompetent, lazy buffoons. Same with the private criminal defense bar. The question is never whether the lawyer is a PD or private, but whether the lawyer is any good. Not as easily quantified.
More interesting than a silly study, by someone whose perspective is that “workgroups” of defense lawyers, prosecutors and judges whose purpose is to assure that no innocent defendant ever goes unconvicted epitomizes the system at its best is how this silly study has been deal with in its report.
Mark Bennett spent a significant part of the day parsing the study. Here are his posts, dissecting the content, analyzing it and raising the issues that need to be raised.
- Of PDs and Private Counsel
- PDs and Private Lawyers: More Likely Than or As Likely As
- PDs and Private Lawyers: What the Numbers Mean
- PDs and Private Lawyers: The Missing Data
- PDs and Private Lawyers: More Interplay
- PDs and Private Lawyers: Last Thoughts
Bennett does the legwork necessary to take a provocative conclusion by an academic whose grasp of the subject matter, one that he’s chosen to make the focus of his scholarship, and sift it through the experience of the trenches.
On the other hand, the same study is presented to lawyers via the American Bar Association Journal, the house organ of that most august of legal institutions. The headline reads, Public Defenders Often are Just as Effective as Private Counsel, Study Says. The accompanying story, just a blurb really, offers some spurious disconnected results. Oh heck, it’s short, so I’ll just copy it here for you, and if Ed or Molly demands that I take it down, I’ll be happy to do so.
A study of Chicago-area courts found that public defenders often are just as effective as private lawyers in persuading judges to grant bail, accept plea bargains and sentence defendants appropriately.
But for some defendants, the study found, retaining a private lawyer may be money well-spent, according to Miller-McCune. The bimonthly magazine, which focuses on public policy and academic researched, is published by the Miller-McCune Center, a nonprofit in Santa Barbara, Calif.
For white defendants, having a private lawyer makes it 2.7 times more likely that they will get bail. And black defendants with a private lawyer are twice as likely to get the original charge reduced, the article reports.
The study, led by Richard Hartley of the University of Texas at San Antonio, is discussed in the Journal of Criminal Justice and abstracted on Science Direct.
It was based on a random sample of 2,850 offenders convicted of felonies in Cook County, Illinois.
Do you feel more knowledgeable for having read this? It’s not likely that ABA Journal readers will pay the $20 to get their hands on the actual study, or risk the loss of their eyes and sanity by reading it. In fact, most will read the headline and move on. The problem is that anyone reading this blurb will be dumber for having done so. The shame is that lawyers who are inclined to read the ABA Journal may not be aware that there is a knowledgeable analysis of this study available from Mark Bennett, and instead are left with this tripe.
The internet is a veritable cornucopia of information. Some of it is just horrendously bad, and often dangerously so. Bennett’s discussion of this study added value, incisive analysis of a study that was doomed ab inito to serve any viable purpose by its inability to take into account the myriad factors that exist in the real world, as well as the author’s ignorance of the system.
Juxtapose the ABA Journal’s treatment, which serves to make its reader more ignorant by having fed them snippets of the study without any critical thought whatsoever. Their readers walk away with misinformation from which to guide their decisions, courtesy of the ABA Journal. This subtracts value from the internet by feeding people something that can only cause harm by promoting ill-founded notions.
In the back of my head, I can hear the mantra, “we report, you decide,” to justify the publication of anything “newsworthy” in the field of law. This too falls flat. The ABA Journal, in “reporting” of this study, could just as easily have reported that Bennett challenged the study, raising significant failings. Martha Neil didn’t post until 7:24 p.m., long after Bennett took the study to task. It was there for her to see, read, include in her post. There’s no way to say if she knew about it before posting, but Martha certainly could have been aware had she done about 0.4 seconds of research on google.
Instead, a silly study with some very dangerous conclusions made headlines at the ABA Journal, and lawyers and defendants who read it will be worse for it. After all, if the ABA Journal, the house organ of the august American Bar Association, says so, it must be true.
So Hartley and friends write a sloppy article (It’s not 2.7 times more likely, it’s 2.7 times as likely; it’s not “bail,” it’s “released on recognizance”) and draw dubious conclusions, Miller-McCune glosses it, and the ABA Journal regurgitates what Miller-McCune has written.
Since the article itself isn’t freely available, what the journalists wrote about it (having read it uncritically, if at all) becomes its meaning.
Lovely.
Ah, well at least it kicked me out of blogging torpor.
Now if only those inclined to rely on it would read your posts, there might be a slight hope that it won’t wreak havoc amongst the ignorant and foolish.
I fulfilled my commitment with a NYC prosecutors office, I rarely handle criminal cases. That being said, I wont say no to a fee but I feel very comfortable with telling individuals that the public defender, or Legal Aid here in NYC, are very good at their job and will get you a better deal than most private attorneys. in my honest opinion unless the client has the money for full time investigators to get under the fingernails of the witnesses, the arresting officer and/or the lab technician; I say stick with LAS.
I’m in partial agreement with you. I often suggest to potential clients who can’t really afford to defend properly to go with their LAS or 18-B lawyer rather than take the hallway guy doing $5k felonies. But there are some good young lawyers who don’t charge as much, as well as excellent but expensive lawyers, who have the time, experience and wherewithal to produce excellent outcomes. Sometimes it’s about the ancillary services, and sometimes it’s just being a hard-working, knowledgeable lawyer.
In your three years (though you don’t mention what county you were in), you didn’t get to see a great deal of what’s out there and what can be done by top lawyers. If you had lasted to become a senior trial lawyer, you would have come across some very impressive defense lawyers that you would never see doing misdemeanors or walking the halls in search of clients. And even your comment, about Legal Aids getting a better deals, belies your vision. We’re not in this to get deals, but to beat the case.
So yes, better with LAS than with a low rent lawyer if a person can’t afford to get a really good lawyer.
Well, in the 7 years since I have been out of the Queens DA’s office I have had the opportunity to see what is out there. I would climb a mountain of private lawyers to deal with a former LAS or ADA or AUSA.
I am a fan of your blog and appreciate your point of view on most issues, but really now, to say “We’re not in this to get deals, but to beat the case” is a little much.
I thought we are here to make money, otherwise we would be LAS, right? If we can be a benefit to society other than by preserving the rights of the innocent by defending the questionably guilty then even better.
We all know that beating the case in 9 of 10 cases is accomplished by making a good deal that shields the client from football numbers, a term I picked up from a client.
The reality is if you want clients to return and to refer you to others you need to plead ’em and street ’em, and beat up the DAs office whenever you can so you have some cred with the ADAs you are dealing with.
I rant because I care
This comment makes you sound childish and inexperienced, particularly that you think we’re all just in this for money. Your view is that of the bottom feeders. No, we dont need to plead ’em and street ’em. You dangerously wrong, and I hope you never take on a criminal case with an attitude like this.
You may think you care, but you simply don’t have a clue how good lawyers work. Not even close.
Childish I may be, but I am also intellectually honest.
If MOST defense attorneys were not in it for the money then how would you ever have “potential clients who can’t really afford to defend properly.”
I may not be experienced but I am savvy enough to know that to the paying public the reality is a good lawyer knows the law and a a great lawyer get his guy out on a D non violent rather than risk a trial to beat Assault 1/ CPW or Crim use 2
You’re conflating two issues. We don’t work for free because we, like everyone else, have to pay our way through life. But that doesn’t mean we’re only in it for the money. There are far more defendants than any lawyer can defend, and we didn’t take an oath of poverty when we decided to do criminal defense. But when we take a case, we’re in it for the win, not the buck.
I suspect that you’ve never experienced law practiced properly. That you think it’s all about copping a good plea is really very sad. It may work out that way when the deal, under the facts and circumstances of the case, is right, your experience really is that of the low level ADA. I suspect you’ve never been in a case with the great lawyer, and that’s why you’ve got no idea how it works.
This might be seen as a great example of how a little knowledge (or in your case, a little experience) is dangerous. An indication is that types of offenses you describe. You believe you get it. You don’t.
I want to commend BK for writing publicly what many hack criminal defense lawyers think, but would never admit aloud: “plead ’em and street ’em” (though he left out the first part, “bleed ’em”).
Fortunately for the hacks and their [families / bank accounts / coke habits], many defendants don’t know any better.
(Don’t knock misdemeanors, by the way. Some of the best criminal defense lawyers in the country will try anything from misdemeanors to capital murders. In the era of Total Information Awareness, even a misdemeanor conviction can be a life-altering catastrophe.)
Agreed about misdemeanors, though with caveat that there’s not as much opportunity as too many defendants fail to take them seriously enough to be willing to mount a serious fight. More should and perhaps it would compel the prosecution to think that they aren’t gimme cases where they can allege anything and expect an easy plea.