Jason Wilson sent me a law review article by 7th Circuit Judge Richard Posner and Toronto (?) lawprof Albert Yoon, What Judges Think of the Quality of Legal Representation, published in the Stanford Law Review. It’s not a new article, but it’s one I had never read because nobody reads law review articles unless someone provides a really good reason to waste an hour of one’s life. This one was worth reading.
Jason pointed me toward one aspect of the article, which I provide intact (without footnotes) to save you a bit of time:
The judges’ views of criminal lawyers (Tables 4 and 5) inform controversy over the relative effectiveness of these different types of defense counsel. Federal appellate and district judges in our sample express high regard for prosecutors and public defenders but low regard for court-appointed counsel and retained counsel, which is consistent with the previous legal and economic literature.
Retained counsel represent 25% and court-appointed counsel 33% of federal criminal defendants. If the quality of legal representation matters to criminal case outcomes, as recent studies suggest, a majority of indigent federal criminal defendants may be serving longer sentences by virtue of not having been represented by a federal public defender. The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, but one federal district judge described the work of defense attorneys other than public defenders as “exceedingly poor.”
The responses by state judges—who find a similar frequency of disparity in legal representation in criminal cases but greater parity between prosecutors and defense attorneys—are at odds not only with the experience of federal judges but also with the views of scholars and journalists, who paint an unflattering picture of the performance of court-appointed counsel in state courts.
The judges’ responses to Question 4 (Table 4) suggest which combinations of prosecutor and defense counsel are most likely to result in disparities in the quality of legal representation in criminal cases. For federal (appellate and district) judges, it is when a prosecutor opposes either court-appointed or retained counsel. For state appellate judges, it is more likely when the prosecutor opposes court-appointed counsel.
For state trial judges, however, a pattern is less apparent. Although judges may disagree on the relative ordering by skill level of the different types of criminal lawyer, the responses to Question 5 indicate that each judge group perceives significant disparities in quality of counsel in 20% to 40% of all criminal cases. Given the judges’ consistently positive impressions of prosecutors, the results suggest that criminal defense lawyers are indeed inferior.
That judges think better of prosecutors than defense counsel should come as no surprise to anyone who’s ever stepped foot in a courtroom. That they think private criminal defense lawyers are, of all the players in the courtroom, inferior, however, is a harsh smack in the face.
The article is replete with issues that merit discussion, not the least of which is the institutional bias of judges who clearly and overwhelmingly favor prosecutors, and secondarily public defenders, to private criminal defense lawyers. I hope that others will carry the water and write about this, but the many varied and monumental issues presented by this article far exceed the scope of a blawg post. Instead, I chose to focus on one small aspect of this article.
It’s not that most private criminal defense lawyers would disagree completely with the assessment that there are many in the game who are, using Posner’s word, “inferior.” Of course, that would only happen in private, among friends and after a few stiff drinks. Complaining about fellow CDLs is like trying to teach a pig to sing, so why bother?
But are private CDLs any different, any more deserving, of judges’ contempt than prosecutors and public defenders? There’s the rub, and it reflects an irrationality on the part of the bench that can’t go unsaid.
The vast majority of private criminal defense lawyers cut their teeth in one of two places: They were either prosecutors or public defenders. Those who went straight into private practice are a very small minority. So how, I wonder, did such fine, excellent lawyers while on the public dole suddenly turn into such incompetent buffoons when they walked down the road apiece?
They didn’t. I can’t remember how many times a newly minted private criminal defense lawyer walked out of the well shell-shocked because a judge, the one he stood before for a year while a prosecutor, the judge he believed loved him so dearly and thought of him so highly, suddenly turned on him and treated him like the enemy, unfit to be heard and unworthy of any credit at all. When he was a prosecutor, the judge adored him and trusted his every word. As a CDL, the judge didn’t believe his name without verification.
It’s not the lawyer. That judges believe, and I don’t doubt Posner’s survey, it’s the lawyer isn’t a question, but it’s not. It’s the judges, and their altered state of consciousness (and conscience) when they put on a robe. Not all judges, but many. When they make the transition from advocate to Keeper of the Faith, they see clearly the role and utility of the players before them. The players who make their life most problematic are the ones they least respect.
Let’s remember, just for kicks, that judges don’t spring from the womb in robes either. You were one of us once, whether on the side of truth and justice or a prosecutor. Us older guys remember when you made a fool of yourself, sloppy drunk and stupid at the Christmas part. We remember bailing your sorry butt out when you yelled out objection in the middle of a closing and had no clue why.
Some of you were darn good lawyers when you walked among humans. Some of you hid in the backrooms licking envelopes. None of you, however, suddenly became taller, more handsome and possessed of brilliance the day you put on a robe. Your jokes aren’t funnier now, and we laugh because we see no benefit in pissing you off when you make a lame one. You aren’t any better or worse as a judge than you were as a lawyer. You just have sufficient authority to prevent reality from seeping through.
There isn’t a private criminal defense lawyer who doesn’t have a ton of stories about how a judge cut some snot-nosed prosecutor a break to compensate for some massive failure in the performance of his job, all because society shouldn’t suffer for a prosecutor’s inexperience or incompetence. Same with public defenders, because they’re burdened with ten times the caseload that any lawyer should carry. There are excellent excuses for the differential in treatment and perception. But they are excuses.
There’s no break to be cut for a private criminal defense lawyer. They are the enemy, paid provocateurs. They serve no master but the criminal, guns for hire whose purpose is to lie and deceive the court and make the judges’ job painful and difficult. If only private criminal defense lawyers could get with the program, become part of the finely honed machine of justice that gets cases off the docket and criminals incarcerated.
This isn’t to say that there are inferior lawyers in our midst. We all know there are, and we know that they end up there because it’s the path of last resort. There are no supervisors to oversee, no bosses from whom to seek approval. There are vast differences in skill, ethics and honor. You see that. We know that.
But then, we are viewed through the prism of your judicial eyes, the same eyes that thought so well of us when we worked for the government, the same eyes that saw us as your friend, maybe savior, when you weren’t such a big shot. Just as you didn’t suddenly get brilliant, we didn’t suddenly get stupid.
Rather than point at the private criminal defense bar and complain that we’re “inferior,” consider the changes in your perception. We are you. We are the prosecutors and the public defenders. If we’re inferior, so is everyone else in the system. We are every bit as much of the system as everyone else, except we don’t get a paycheck whether we do our job well or poorly. We have to earn our pay with every client and every case, something judges no longer have to concern themselves with.
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A very interesting post. I suspect the perceived discrepancies are indeed related to the observer, not what is observed. How I would love to see a a similar poll of experienced defendants, not judges. The perception would, no doubt, be interesting. Quite the opposite, I would guess. How else to account for the fact that my clients (I am a state public defender) all want someone to hire a private lawyer for them. And their highest praise is something like “You should go ot on your own.” or “I like you better than the paid lawyer I had last time.”
Judges love a quick, efficient, smooth functioning system that disposes of cases, and locks up the accused with minimal delay-a criminal system. Demanding of yourself a criminal JUSTICE system is slow and painful. It requires actual work and it is not swift and sure.
Of course, the PD dilemma is also fueled by the perceived value problem. If it doesn’t cost anything, it can’t be worth anything.
When a PD long ago, the comment I remember is … “I want a real lawyer.”
I met Professor Yoon a few years back when he interviewed me for another article he was writing on the legal profession.
The survey results, while not surprising, are sobering. Judges at all levels and jurisdictions should read the law and psychology literature (including Marc Galanter’s work cited in Posner and Poon’s article).
Institutional bias and Déformation professionnelle are important insights into the cognitive biases that unduly influence the judicial mind, but there are many other areas that require further research. For example, judicial decision-making and role-specific norms based upon the archetype of the “judicial gate-keeper”.
There are some disturbingly naive responses from the judges participating in the survey on the role and impact of CDLs in the criminal justice system and (presumptively) impartial judging within a adversarial system.
That said, the issue of social media credential fraud was on the mind of at least one state appellate judge who:
“…identified the central problem as a lack of information about the quality of legal representation:
We have some bad lawyers whose clients would have had good, even winning cases, but for these lawyers. I wish there was some way to let the public know how bad these lawyers really are. It’s almost a crime that these lawyers are able to continually advertise themselves as experienced specialists in one field of the law or another, with apparent success, because they seem to keep getting clients.” (Posner and Poon, at 348).
I haven’t read the article yet, so these are just my first impressions (I will read it because unlike you, I actually like reading law review articles and I also wonder if there are any solo-centric tidbits in here).
But preliminarily, I am sure, as you say, that there are institutional biases here, as well as a couple of bad apples in the court appointed ranks who contributed to these opinions (though of course, there are bad apples in prosecutors’ ranks as well).
But is there a resource issue at play as well? Prosecutors and PDs benefit from paid investigators, research tools and for what they’re worth, trainings and CLEs. I imagine that there are some court appointed lawyers who cannot afford these resources (or can’t afford to front the costs for those that are later reimbursed) or do not care to spend money on improvement.
Jason Wilson sent you a law review article? Didn’t he also send you Typography for Lawyers? He hasn’t sent me shit. Do you have his phone number?
Private criminal defense lawyers are seen as those in the system making money off the place. They come in in their matching suit and pants, have a file that looks like someone actually organized it, and “have to go” because time is money. Many private criminal defense lawyers are former prosecutors who are viewed as having “sold out” for the all mighty dollar, and, to a lesser extent, PD’s who go private are seen in that light.
We in the private bar frequently hear from bailiffs and other court staff, including prosecutors and judges – “whaddya care? You’re making money, so what if the guy gets 10 years for saying hello to a cop?”
So I think the issue is not merely that of the quality of the private defense counsel (which is a subject for another day), but the perception that we are the people in the system that are there for a different reason than anyone else.
Did Jason send you something for Easter? I’m not jealous or anything, but did he? Candy?
I’m not a lawyer, so I hope you will forgive my ignorance of the courtroom, but if I were a cynic, I would suggest a thought experiment in which you ask judges to rate the lawyers that appear before them based only on the ease with which they allow judges to move cases through the system. Be sure to account for the different goals that each type of lawyer is trying to achieve, their respective familiarity with the courthouse environment, the amount of work they are implicitly asking the judge to do, and whether their client is in a hurry or not. Would those ratings be any different from the ratings in the law review article? If not, what does that tell us about the relationship between judges’ impressions of lawyer competence and judges’ appreciation for keeping things moving?
This is really fascinating stuff. I suspect that one (among many, many others) driving the result is that the judges surveyed, and a wide swath of lawyers generally, don’t actually believe in the adversary system. Its given lip service, but overall, I think that the surveyed audience doesn’t like the actually like the idea of criminal defense other than as a public service/training ground (public defender’s office) or as a holding station/way of putting some money in the bank before the return to “public service” (the stint in the “white collar” group at a big firm, in between the usa’s office and the bench). The judges don’t actually believe that defending criminals is a respectable way to earn a living, even if they did it for a little bit, so they put down those who do by calling them bad lawyers.
Maybe the judges have just experienced greater spread in the abilities of retained counsel. FPD offices and USAOs probably have pretty standard training programs, supervision, and hiring pools — meaning that they could have near-cookie-cutter lawyers without much variation. In contrast, some retained counsel are going to be truly outstanding, and some may be truly horrendous. That would still mean that most of the cases where defendants suffer from a disparity belong to paid counsel — even if paid counsel are on average as good (or even better) than FPDs or AUSAs.
If you can’t walk the walk, you can’t talk the talk. There is no such thing as half-way competent representation. If you can’t afford to do the job properly, then don’t do the job. Clients are not there to keep lawyers afloat; lawyers are there to represent clients properly. If they can do it, for whatever reason, they can’t take the case. No excuses.
An Easter Bunny. But not a big one. And jelly beans. But not the gourmet ones, just the regular ones.
How many of the surveyed judges are (a)former prosecutors (b) former CDLs ?
And a painting. Don’t forget the painting I did of you standing on a mountain made of judges and prosecutors.
Next time my case is bumped until after lunch “because we have to get the private attorney done first” I’ll be soothed by the thought that the judge thinks the other guy is more of a hack.
They used to let private lawyers go first in New York City, until those uppity PDs whined their way into parity, making us sit on our butts half the day while they had the same catcher in the courtoom all day long anyway. Eventually, the whiners went out to the real world, and came face to face with the product of their whining.
Ha!
Don’t rub it in. Tannebaum feels bad enough as it is. That’s why I didn’t mention the key lime pie either.
We think criminal defense lawyers suck.
The defendant’s claim of ineffective assistance of counsel is rejected.
Sincerely and dissonantly yours,
Judges
Suck, sure, but never that bad.