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

• Author: Anderson, James M.
• Position: Introduction through II. Quantitative Analysis of the Performance of the Public Defender Versus Appointed Counsel, p. 154-187

ESSAY CONTENTS INTRODUCTION I. BACKGROUND ON INDIGENT DEFENSE IN PHILADELPHIA II. QUANTITATIVE ANALYSIS OF THE PERFORMANCE OF THE PUBLIC DEFENDER VERSUS APPOINTED COUNSEL A. Data and Sample Construction B. Methods: Counsel Assignment and the Preliminary Arraignment Process C. Results 1. Effects on Guilt 2. Effects on Sentencing III. EXPLANATIONS FOR THE DIFFERENCE IN OUTCOMES A. Conflicts of Interest B. Compensation for Lawyers, Investigators, and Experts C. Relative Isolation IV. PRELIMINARY IMPLICATIONS OF THE PERFORMANCE DISPARITY BETWEEN THE PUBLIC DEFENDER AND APPOINTED COUNSEL A. Constitutional Implications 1. Sixth Amendment 2. Eighth Amendment 3. Prospective Remedies B. Method of Providing Counsel to Indigent Defendants C. Improving the Process of Defense CONCLUSION APPENDIX The mills of justice grind slowly, but they grind exceedingly fine. (1)

INTRODUCTION

The idea that the inefficiency and slow speed of the justice system may somehow be justified by the system's ultimate precision is a reassuring one. It suggests that the justice system's vast creaky apparatus, for all its inefficiencies, will ultimately mete out the precise punishment that is necessary. It is also consistent with our goals of equal justice under the law and the idea that we are ruled by law rather than men. (3)

In this Essay, we examine one measure of the criminal justice system's "fineness"--its sensitivity to the defense counsel function. (4) Under nearly every normative theory of punishment or criminal responsibility, the characteristics of the offender's defense counsel should make no difference in the outcome of the process. Whether or not a defendant is found guilty and the extent to which the offender is sentenced to be punished should only depend upon facts about the offender and perhaps the possibility of and need to deter a particular crime. (5) The effect of the individual lawyer (and of the system for providing that lawyer) is pure "noise."

Usually the effect of the lawyer is hard to measure because lawyers and clients select one another. (6) It is difficult to determine whether the results obtained by a particular lawyer are attributable to the lawyer or simply to the characteristics of cases that the lawyer takes. Of course, most lawyers and clients act as though lawyers affect outcomes--lawyers brag about their abilities, (7) wealthy clients hire lawyers with the best reputations, and students compete to get into the best law school possible. (8) But because of this selection effect, it is usually impossible to isolate and measure the magnitude of the effect of the lawyer and the system for providing that lawyer. (9)

For the sake of the accuracy and fidelity of the criminal justice system--the fineness of the millstones of justice--one might hope that the differences in outcomes between lawyers are minimal. (10) This is particularly true in the most serious cases where the public interest in reliable adjudication is at its height. Perhaps the resources of the state are marshaled in such an effective way and the facts established so clearly by the government that what the defense lawyer does makes little difference. Perhaps, for example, those guilty of such a serious act as taking another's life are reliably and accurately punished irrespective of their lawyer. (11) It would be reassuring if the criminal justice system were this reliable in practice.

In this Essay, we take advantage of a natural experiment that allows us to measure the difference that defense counsel makes in the most serious cases. In Philadelphia, since April 1993, every fifth murder defendant is sequentially assigned at the preliminary arraignment to attorneys from the public defender's office. The other four defendants are assigned to appointed counsel. This sorting mechanism allows us to isolate the effect of the "treatment"--defendants represented by the public defenders--with the "control"--defendants represented by appointed counsel--by using an instrumental variables approach in cases from 1994 to 2005.

The differences in outcomes are striking. Compared to appointed counsel, public defenders in Philadelphia reduce their clients' murder conviction rate by 19%. They reduce the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%.

These results suggest that defense counsel makes an enormous difference in the outcomes of cases, even in the most serious cases where one might hope that the particular type of defense lawyer would matter least.

Our findings, from the fifth-largest city in the United States, raise questions regarding the fundamental fairness of the criminal justice system and whether it provides equal justice under the law. The findings also raise questions as to whether current commonly used methods of providing indigent defense satisfy Sixth Amendment standards for effective assistance of counsel and Eighth Amendment prohibitions against arbitrariness in punishment. More generally, the strong impact of defense counsel suggests that the criminal justice system is, in practice, quite sensitive to the characteristics of the professionals involved. Policymakers may wish to consider efforts taken in other fields, like medicine, to increase reliability by reducing the system's dependence on the skill and performance of an individual professional.

We begin with an overview of indigent defense in Philadelphia. This is followed in Part II by a discussion of our methodology and our quantitative findings on the effect of counsel on the outcomes of murder prosecutions. In Part III, we discuss the qualitative interviews we conducted and previous research on indigent defense in Philadelphia. Finally, we discuss the constitutional and policy implications of these findings.

1. BACKGROUND ON INDIGENT DEFENSE IN PHILADELPHIA

   In 2000, Philadelphia had a murder rate of 21 per 100,000 people, twelfth highest among large U.S. cities. (12) Most murder defendants, approximately 95%, cannot afford to hire private counsel and are therefore provided counsel by the county as required by the Sixth Amendment.

   Pennsylvania is unique among the states in that the individual counties are solely responsible for the costs of indigent defense, in every other state, the state itself either funds a statewide public defender program or contributes to the costs of county public defender programs. (13) However, even with state help, counties bear a significant portion of the overall burden. In the one hundred largest counties in the United States, county and city funding made up 68.8% of total expenditures on indigent defense, with the states providing 25.3%. (14)

   In Philadelphia, a nonprofit public defender organization, the Defender Association of Philadelphia, has long represented nearly all indigent defendants charged with any offense--except for murder. (15) Although its origin is somewhat murky, this exception apparently arose in the late 1960s or early 1970s as a way to maintain the private homicide defense bar and judges' power to appoint lawyers in murder cases. (16) In the mid-1980s, the Defender Association proposed representing some defendants accused of homicide, but the Philadelphia Bar Association opposed the measure and no change occurred. (17) After a change in bar and court leadership, the existing system began, and on April 1, 1993, the Defender Association began to represent one out of every five murder defendants. (18) The other four out of five defendants continued to be represented by counsel in private practice appointed by a judge ("appointed counsel") and paid by the county.

   While some features of Philadelphia's indigent defense system are fairly unique, the basic approach of utilizing a mix of both public defenders and appointed counsel to represent indigent defendants is relatively common in the United States. In 2000, a survey of indigent defense systems conducted by the Bureau of Justice Statistics revealed that 80% of the one hundred largest U.S. counties employed both public defenders and appointed private attorneys as defense counsel in felony cases. (19)

   The homicide unit of the Defender Association consists of a group of about ten experienced public defenders who have considerable experience practicing in the Philadelphia court system. (20) Every case is staffed with teams of two lawyers and one or more investigators and mitigation specialists (non-lawyer legal professionals, often social workers, trained to develop mitigation evidence usually introduced during the penalty phase of a capital trial) as needed. All members of the staff are salaried. The unit also has its own limited set of funds to hire expert witnesses directly without having to seek approval and funding from a judge, as appointed attorneys are required to do. (21) Unfortunately, we do not have the data necessary to calculate the cost per case of representation by the Defender Association.

   Defendants who are not represented by the Defender Association are assigned counsel by one of the judges from the Philadelphia Court of Common Pleas, who each take turns assigning counsel in murder cases. (22) During the study period, the Court of Common Pleas of Philadelphia County required lawyers who wished to accept potential capital cases to have special qualifications based on the number of serious cases they had tried and the number of capital cases in which they had assisted. (23) In potential capital cases, two lawyers were often appointed, one to be responsible for the guilt phase of the case and the other to be responsible for the penalty phase of the case. (24)

   During our study period, counsel appointed in murder cases--both capital and noncapital--in Philadelphia received flat fees for pretrial preparation: $1,333 if the case was resolved prior to trial and $2,000 if the case proceeded to trial. (25) The $2,000 trial fee also included the first half-day of trial. While on trial...