How much difference does the lawyer make? The effect of defense counsel on murder case outcomes.

• Author: Anderson, James M.
• Position: III. Explanations For The Difference In Outcomes through Conclusion, with footnotes, p. 188-217

3. EXPLANATIONS FOR THE DIFFERENCE IN OUTCOMES

   Why the stark difference in outcomes? In order to better understand the reasons for the difference in outcomes, we undertook qualitative interviews, a review of past research on this issue, and a review of relevant cases.

   It is theoretically possible that the difference in quantitative outcomes that we observe is the result of differences in the way that the prosecutor or judge treats a defendant with an attorney of a particular type, not a result of differences in the actions or inactions of the attorney. However, we found no evidence of this in the interviews we conducted and think it is unlikely.

   Instead, our interviews suggest that the causes of the difference in outcomes are attributable to defense counsel. These, in turn, can be understood as ranging from longer-term systemic and institutional causes to more immediate differences in the treatment of individual cases.

   We find that, in general, appointed counsel have comparatively few resources, face more difficult incentives, and are more isolated than public defenders. The extremely low compensation for appointed counsel reduces the pool of attorneys willing to take the appointments and makes extensive preparation economically undesirable. Moreover, the judges selecting counsel may be doing so for reasons partly unrelated to counsel's efficacy. In contrast, the public defenders' steady salaries, financial and institutional independence from judges, and team approach to indigent defense avoid many of these problems. These longer-term institutional differences lead to the more immediate cause of the difference in outcomes: less preparation by appointed counsel.

   These problems are not new. For almost twenty years, commentators have noted many of the same problems with the representation provided by appointed counsel in Philadelphia. In a series of ten newspaper articles in 1992 and 1993, journalist Fredric Tulsky documented an indigent defense system in Philadelphia murder cases that was marred by conflicts of interest, lack of compensation, poor training, and few standards. (85) In 2001, Hillary Freudenthal conducted a series of quantitative analyses and qualitative interviews and chronicled a similarly dysfunctional system in an unpublished undergraduate paper. (86)

   To understand whether the situation has meaningfully changed since this previous research, we conducted structured qualitative interviews with twenty appointed counsel, judges, and current and former public defenders (87) and reviewed cases in which Philadelphia counsel were found ineffective in capital murder cases. We found that while the situation has improved recently in some respects, many of the same underlying problems remained and are the most probable explanation for our finding a sharp difference in the outcomes of cases during our study period (1994-2005).

   We emphasize that the problems identified with appointed counsel do not reflect every appointed counsel in every case. Most respondents noted that some appointed counsel could perform well in many cases. Similarly, our data analysis only reflects the outcomes of defendants represented by appointed counsel and public defenders on average. Appointed counsel might produce better outcomes than the public defender for any particular defendant.

   1. Conflicts of Interest

      An adversarial system of criminal justice relies upon zealous representation of the parties in order to reach a reliable outcome. Hence the traditional ethical obligations of counsel to avoid any direct conflict of interest or anything that might impair her independence or ability to zealously advocate for her client's interests. (88) Similarly, the American Bar Association recommends that appointed counsel systems be independent of judges in order to protect counsel's ability to provide zealous advocacy. (89) Unfortunately, both judges and defense counsel in Philadelphia face potential conflicts of interest in the appointment, payment, and representation process that may help explain why the defender-represented defendants fared better. (90)

      Appointments in Philadelphia have long been controlled by the judges of the Philadelphia Court of Common Pleas. When a lawyer is needed, court administrators determine whose turn it is to appoint the attorney, and they contact that judge's chambers. That judge provides the name of the attorney to be appointed. (91) The set of appointing judges includes those assigned to the civil division, who do not try criminal cases.

      Interviewees indicated that judges face several potential conflicts of interest. The first is fiscal. Because Pennsylvania is the only state in which each county is solely responsible for funding indigent defense without any assistance from the state, (92) every dollar that is spent on indigent defense by the county comes directly from the court's overall budget. Judges must therefore weigh indigent defense costs against many needs, including those of probation officers and treatment courts. (93)

      Apart from the direct pecuniary costs of paying for defense counsel, judges may also have conflicts of interest in appointing counsel who will require too much judicial time and energy. Judges who worry about overcrowded dockets may have incentives to appoint counsel who file fewer pretrial motions, ask fewer questions during voir dire, raise fewer objections, and present fewer witnesses. (94) Quite apart from reducing the expenditures paid to counsel, less active defense attorneys also effectively allow judges to process more cases in less time. (95)

      Historically, judges have apparently assigned cases to lawyers with whom they had political connections. (96) A former chairman of the Philadelphia Bar Association's criminal justice section explained that the system of appointments had developed because "judges wanted to pay back supporters for their political help." (97) Another lawyer explained, "[t]he homicide appointment system is largely a patronage system." (98) In 2001, Freudenthal made similar findings, noting that judges distributed these appointments as political favors. (99)

      Today, opinion is mixed with respect to whether political considerations continue to play a role in the appointments, with most respondents indicating that this consideration plays much less of a role than it did in the past. One interviewee disagreed, explaining that "[t]he appointment process is still political. If the judge is Republican, they appoint the next guy on the list they get from the party. Democratic judges aren't any better." (100) According to this respondent, this practice occurs even for lawyers that other judges identify as clearly incompetent: "In one case, the homicide calendar judge saw that the lawyer was hopeless and contacted the judge who appointed the guy and told him not to appoint him again. It did not do any good. The [judge] appointed the same guy again." (101)

      However, most interviewees thought that blatant political considerations in the appointment of counsel are much less common today, in part because fewer attorneys want the appointments. (102) At least one interviewee who was generally positive about appointed counsel admitted that not every appointed lawyer did a good job. (103)

      This system of appointment may also create perverse incentives for lawyers who wish to continue to receive appointments. Aware of the caseload and fiscal pressures faced by judges, appointed lawyers may be more hesitant to request numerous experts or to employ time-consuming strategies in the course of representing a defendant. (104) At least one of the appointed lawyers whom we interviewed, however, denied that appointed counsel's actions were influenced by these considerations and emphasized their professional obligations to zealously represent their clients. (105)

      In contrast, public defenders, who are paid a fixed salary and who are not beholden to judges for future appointments, are not subject to these perverse incentives and are thus able to act more independently. (106)

   2. Compensation for Lawyers, Investigators, and Experts

      Another ongoing problem, documented by both Tulsky (107) and Freudenthal, (108) is the compensation paid to appointed attorneys for representation, investigators, and experts in murder cases. Counsel appointed in murder cases--both capital and noncapital--receive flat fees for pretrial preparation: $1,333 if the case is resolved prior to trial and $2,000 if the case goes to trial. The preparation fee also includes the first three hours of trial time. While on trial, lawyers receive $200 for three hours of court time or less, and $400 per day for more than three hours. (109)

      This compensation structure creates several problems. First, the overall amounts of compensation are very low compared to other jurisdictions and compared to what most attorneys could earn in the private sector. By contrast, attorneys appointed to criminal cases in federal court earn $125 per hour in noncapital cases and $185 per hour in capital cases. As a result of the below-market rate for appointed attorneys, many respected criminal defense attorneys refuse to be on the list to accept indigent defense assignments. Interviewees, including appointed counsel, note that while some of the lawyers who are willing to take appointments are good, some are not. (110)

      Consistent with microeconomic theory, defense counsel who take appointed cases do it either because it makes up for the lack of other, better-paying work (111) or because they receive other benefits from it. For many appointed counsel, this other benefit is an enjoyment of murder trials and being involved in what one lawyer called "significant" cases. (112) One explained: "I'd do it for next to nothing, and the judges know this." (113)

      Second, as a result of the low rate of compensation for each individual case, attorneys who do take homicide appointments generally take on many more of them than it would be possible to...