Public defenders and appointed counsel in criminal appeals: the Iowa experience.

• Author: Buller, Tyler J.
• Position: I. Introduction through V. Analysis B. The Appellate Defenders and Privately Retained Counsel Provide Comparable Representation, Given the Mixed Results on the Objective Measures, p. 183-220

1. INTRODUCTION

   In Iowa's criminal justice system, indigent defendants are represented by two separate and distinct groups: public defenders, who are salaried government employees, and court-appointed attorneys, who contract with the state on an hourly basis. This is an article about their performance on appeal.

   Iowa's appellate courts decide roughly five hundred criminal appeals every year.* 1 Most appeals, criminal and otherwise, are decided by the Court of Appeals, Iowa's intermediate appellate court. (2) In each criminal appeal, defense attorneys face off against assistant attorneys general from the state Department of Justice's criminal appeals division. One might wonder whether the type of criminal defense attorney--appellate defender, court-appointed attorney, or retained counsel--makes a difference. Until now, there has been almost no data to answer that question.

   Only one existing study, focusing on New York appeals in the late 1980s, has meaningfully explored appellate outcomes based on type of counsel. (3) Two subsequent, more-limited studies found results inconsistent with the New York data. (4) Data about trial-level counsel are similarly a mixed bag, with some studies showing public defenders are more effective than court-appointed attorneys, some showing the opposite, and some showing that there are no significant differences. (5)

   The original study contained in this article aims to break past the noise and provide a clear answer--at least for Iowans--as to whether the type of counsel matters in a criminal appeal. The study reports on objective measures of counsel's effectiveness: the number of cases in which defendants obtain favorable outcomes, the number of filings with procedural and technical problems, the rate at which counsel sought further review by the Iowa Supreme Court, and the rate at which further review was granted.

   The data show that the appellate defenders generally perform better than court-appointed lawyers--they win more cases, have fewer procedural and technical problems, seek further review in more cases, and obtain further review more often. (6) One particularly striking difference is that, over the course of two years, court-appointed appellate lawyers never had a further-review application granted; the appellate defenders convinced the Supreme Court to take eighteen unfavorable Court of Appeals decisions on further review. Looking in another direction, the data also show that representation provided by the appellate defenders was roughly comparable to that provided by privately retained defense counsel: Minor differences appear between the groups, but neither the appellate defenders nor retained counsel come out clearly ahead on the objective measures--except for the appellate defenders' dramatically lower number of procedurally and technically defective filings.

   There is no quick fix that can upgrade court-appointed attorneys' performance. But the final section of this piece suggests a few places to start. Court-appointed attorneys need better training and better support. Existing prerequisites and continuing-legal-education requirements for court-appointed attorneys are not enough. Iowa should explore expanding the number of appellate defenders to give more defendants more consistent representation; or, if the present system of court appointments endures, the State Public Defender should consider giving the appellate defenders oversight over court-appointed attorneys' work product. This article explains why.

2. CRIMINAL APPEALS IN IOWA

   The focus of this paper and study are relatively narrow: criminal appeals in the state courts of Iowa. But criminal appeals are not unique to Iowa--they are present in every state, (7) and at least some research suggests that the broad contours of criminal appeals have "[f]ew striking differences" among the states. (8) Because the institutional features of Iowa criminal appeals may have shaped the results contained in this study, an exploration of the distinctive make-up of Iowa's appellate criminal-justice system is the starting point for understanding whether the type of counsel makes a difference.

   1. The Courts: The Supreme Court and the Court of Appeals

      Unlike nearly all its sister states, Iowa has a deflective routing system in which all appeals originate in the Supreme Court, and the overwhelming majority are transferred to the Court of Appeals for disposition. (9) In 2012 and 2013, the Supreme Court decided (10) twenty-one criminal appeals through retention, while the remaining 987 criminal appeals were transferred to the Court of Appeals. (11) For the overwhelming majority of criminal defendants, the Court of Appeals is the state court of first and last resort. Only about five percent of criminal appeals see action by the Supreme Court: the retained cases amount to 2.15 percent of all criminal appeals, and another 2.82 percent of criminal appeals are granted further review by the Supreme Court. (12)

      The court that hears an appeal matters. Iowa's Supreme Court, at least according to its own rules, retains only a narrow band of cases--constitutional challenges to statutes or rules, cases concerning a conflict among lower courts, "substantial" issues of first impression, "fundamental and urgent issues of broad importance," and cases presenting "substantial" questions of enunciating or changing legal principles. (13) As compared to Iowa's Supreme Court, the Court of Appeals is an error-correcting court, (14) with mandatory rather than discretionary jurisdiction. The Court of Appeals must decide all cases transferred to it by the Supreme Court and--again, at least according to the rules--it ordinarily hears cases involving "the application of existing legal principles" and cases "that are appropriate for summary disposition." (15)

      This institutional structure means that the overwhelming majority of criminal appeals in Iowa have their first and only hearing before the Court of Appeals. And more than ninety percent of these cases are decided on the briefs, without oral argument. (16) For this reason, a study of Iowa's criminal appeals properly focuses on dispositions before the Court of Appeals and evaluates features of the briefing process that can be discerned from publicly accessible documents.

   2. The Players:

      Varying Defense Counsel against the Attorney General

      The parties in Iowa criminal appeals are predictable: On one side is the State of Iowa, and on the other is an individual criminal defendant or inmate. (17) Most cases involve repeat players (among counsel and sometimes defendants). To understand the data contained in this article, necessary background includes the identity of recurring players in the criminal-appeals arena.

      1. Defense Counsel

         In Iowa, criminal defendants and prisoners have a statutory right to counsel in most cases before the appellate courts. (18) But the statute does not guarantee a particular type of defense attorney. Most criminal defendants are indigent and receive counsel at public expense. (19) Whether a particular defendant is entitled to counsel at public expense turns on state administrative rules tied to federal poverty guidelines. (20)

         Like in other states, (21) not all attorneys that represent Iowa's criminal defendants come from the same background or have the same attributes. Indigent defendants are represented by two categories of appellate counsel--either what I refer to as "appellate defenders" (the government employees dedicated full-time to indigent defense) or "court-appointed attorneys" (private lawyers who contract with the state to represent indigent defendants on a part-time hourly basis). Non-indigent defendants are represented by lawyers they pay for, whom I refer to in this paper as "retained attorneys." As discussed below, the way these groups become involved in criminal appeals differs, as do their respective workloads. I explore these differences below because they may, at least in part, explain differences between the groups on the metrics measured in the original study.

         1. The Appellate Defender's Office

            The genesis of the Iowa Appellate Defender's Office was a 1979 report by the Iowa Supreme Court's Litigation Committee, which recommended creation of a statewide appellate defense office. (22) Legislation to establish the office was overwhelmingly advanced by the Iowa General Assembly and signed by Governor Robert Ray in 1981. (23) The only clear point of contention in the initial legislation was over appointment of the State Appellate Defender: The Iowa Senate favored he be hired by a governor-appointed commission while the Iowa House favored direct appointment by the governor. (24) The House version prevailed and the office was made permanent by legislation in 1982. (25) The statutory scheme for the office today is similar to that at its origin, though a 1989 amendment provided for appointment of the State Appellate Defender by the governor-appointed (and state-senate-confirmed) State Public Defender, rather than direct appointment of the Appellate Defender by the governor. (26)

            As explained in a report provided to Iowa's governor after the office opened:

            Major objectives of the [Appellate Defender] include reducing the cost of criminal appeals within the state, providing property tax relief to local counties by absorbing costs resulting from indigent criminal appeals, promoting greater judicial efficiency within the criminal justice system by reducing unnecessary delays in the administration of criminal appeals, and promoting the best interest of justice by providing high quality appellate representation to indigent criminal defendants. (27) Today, the Appellate Defender (AD)'s Office largely pursues these same objectives, though its focus has narrowed to purely state appellate matters--rather than state-district-court litigation or federal litigation--in the intervening years. (28)

            In terms of personnel, the AD's Office employed thirteen full-time attorneys in...