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

• Author: Buller, Tyler J.
• Position: V. Analysis C. An Unexpected Result: Appellate Defenders Win Differently and Outperform Court-Appointed Attorneys Most Significantly on Sentencing Issues through VII. Conclusion, with footnotes and appendices, p. 220-255

3. An Unexpected Result: Appellate Defenders Win Differently and Outperform Court-Appointed Attorneys Most Significantly on Sentencing Issues.

   The hypotheses for this study correctly anticipated that the appellate defenders' overall number of "wins" would substantially outpace court-appointed attorneys, but drilling down into the type of victory reveals still more differences between the two groups. The divide between appellate defenders and court-appointed attorneys is greatest on sentencing issues. Appellate defenders obtained favorable action on a sentencing issue in 9.49 percent of all their appeals, while for court-appointed attorneys that number was just 3.87 percent. The appellate defenders' performance on sentencing exceeded retained counsel as well, with privately retained attorneys obtaining a favorable sentencing outcome in 7.32 percent of appeals.

   The difference among type of counsel for other subtypes of favorable action is more limited. For "acquitted" outcomes, in which at least one conviction was eliminated with prejudice, all three groups were fairly similar: 3.68 percent for the appellate defenders, 2.38 percent for court-appointed attorneys, and 2.44 percent for privately retained counsel. For new trials, appellate defenders outperformed court-appointed attorneys (6.20 percent for the appellate defenders and 3.57 percent for court-appointed attorneys), and private counsel outperformed both groups by a wide margin, obtaining a new trial in 12.19 percent of their appeals.

   Wasserman suggested in his book that "[s]entence appeals may depend on the attorneys' skill in making an apparently recalcitrant and dangerous offender appear sinned against as well as sinning." (161) This would be consistent with the appellate defenders, who specialize in criminal-appellate law, outperforming more generalist court-appointed and privately retained lawyers on sentencing issues. But Wasserman's logic is harder to follow in Iowa, which has an indeterminate sentencing scheme and highly deferential sentencing review for sentences within statutory limits. (162) Although I have no empirical data to prove it, I suspect that many more sentencing appeals (particularly successful appeals that result in a re-sentencing) turn on procedural problems, like failing to state reasons for a sentence, (163) failing to notify a defendant of his rights under the rules of criminal procedure, (164) or imposing an improper fine or surcharge. (165) In those cases, the appellate defenders likely have an issue-spotting advantage, given the complexities of Iowa's sentencing code and the frequency with which certain issues recur.

4. The Appellate Defenders and Court-Appointed Attorneys Represented Similar Percentages of Felons and Misdemeanants in 2012-2013.

   As mentioned in Part Il.B.1.a, the assignment of cases between the AD's Office and court-appointed attorneys is not purely random. This matters because it could potentially affect my data--if the AD can screen out "loser" cases and keep "winners," this would skew the AD's rate of favorable outcomes. I tentatively rule out this confounding variable for two reasons. First, even if we accept the premise that a screening attorney can predict outcomes based on a cursory review of the record, I am skeptical that can be done at the stage when screening decisions are made: pre-briefing and before any detailed review of the record. (166) Without any transcripts or a complete record, it seems virtually impossible for anyone to "game the system" and determine which cases present a viable issue with a likelihood of success versus which cases are likely to be summarily affirmed. This militates against the likelihood that the chief appellate defender has put his thumb on the scale or used some sort of selection bias to skew his office's numbers.

   That said, the second reason I rule out selection bias is because my data don't reflect even the limited selection biases described by the chief appellate defender. The chief appellate defender told me that the non-random component focused on offense severity--the AD only withdrew from Class A felonies when it could not undertake representation due to a conflict, they "try to keep the more serious cases," and the office tries to "generally withdraw from the less serious cases--driving offenses, OWI, simple possession." (167) The data displayed in the graph on the following page, looking at the whole population of criminal appeals in the study, do not support this description of the office's practices.

   Offense Severity Across 2012-2013 Sample misdemeanors felonies AD 24.81% 75.19% Apptd. 24.11% 75.89% Note: Table made from pie chart. The appellate defenders and court-appointed attorneys, as groups, handled almost identical proportions of felonies and misdemeanors in the 2012-2013 period: 75.19 percent felonies for the AD's office and 75.89 percent for court-appointed attorneys. (168) This is rather the opposite of the chief appellate defender's description--court-appointed attorneys handled marginally more serious cases, rather than less. In terms of Class A felonies, the data do not mirror the chief appellate defender's description either: Thirty of the AD's cases (5.81 percent) involved Class A felonies, compared to thirty-six (10.71 percent) of the court-appointed attorneys' cases. (169) Interestingly, this data for all criminal appeals--roughly seventy-five percent felonies, twenty-five percent misdemeanors--tracks precisely with the breakdown of appeals in fourteen other states. (170)

   Support for the chief appellate defender's description can be found by eliminating postconviction appeals and considering only direct appeals. Looking at the numbers this way (as displayed in the graph below), the AD represents a greater proportion of felonies: 74.31 percent for the AD's office, compared to 60.42 percent for court-appointed attorneys. (171)

   Offense Severity For Direct Appeals Only misdemeanors felonies AD 25.69% 74.31% Apptd. 39.58% 60.42% Note: Table made from pie chart. The AD, when the sample is limited to direct appeals, also represents significantly more Class A felons than court-appointed attorneys: 5.10 percent (AD) to 2.60 percent (appointed). (172)

   Any divergences based on the type of appeal (direct versus postconviction) give me little pause. Statistics for the direct-appeal-only sample generally paint the same picture as the combined direct-appeal and postconviction sample. (173) In both samples, the AD obtains favorable action at a greater rate than court-appointed attorneys: 1.6144 times more likely in the direct-appeal-only sample, versus 1.9735 times more likely in the combined sample. (174) Also in both samples, the AD has far fewer procedural defects than court-appointed attorneys: Both the level of defaults (175) and the level of stricken filings (176) are relatively consistent. So too for the very similar rates at which further review was sought (177) and granted. (178) In short, whether you limit the study to direct appeals or consider both direct appeals and postconviction appeals, the findings outlined above hold up: The appellate defenders generally perform better than court-appointed attorneys. (179)

   6. RECOMMENDATIONS FOR THE FUTURE

   Numbers and graphs never tell the whole story. Every study, no matter how empirical or objective its source data, has limitations. As described below, the study here is limited--most notably in terms of time-period, jurisdiction, and potential confounding variables. With those limitations in mind, the data are still compelling and the suggestion that some indigent defendants get better lawyers than others should worry observers of the criminal justice system. So what can be done about it? I make two proposals below: expanding the AD's office and reforming certain aspects of the court-appointed-attorney system. I conclude by addressing the lingering question of whether the data showing comparatively weak performance by court-appointed attorneys amounts to ineffective assistance.

1. Limitations on the Study.

   Before looking at the data for its relevance to public policy and understanding the criminal justice system, it is important to acknowledge the limitations of this study and the data it contains.

   First, the study in this article captures a narrow snapshot in time: calendar years 2012 and 2013. It would be a mistake to assume that the data collected here necessarily mirror the numbers for other years. Courts change, as do criminal statutes, constitutional issues, and the particular attorneys involved. One area that jumps out as a potential source of variance is change in an appellate court: Over the course of 2012-2013, one judge retired (180) and the Court of Appeals saw three different chief judges discharge the duties of that office. (181) There is little doubt that different judges come to different decisions, and this change in membership may have impacted the data.

   Second, it is possible that a variable not tracked by this study bears more strongly on appellate outcomes than the type of appellate lawyer. For example, the issues raised--regardless of whether they are raised by the appellate defenders or court-appointed attorneys--might drive outcomes. But this study did not track the issues raised on appeal, largely because briefs (182) that pre-date e-filing are difficult for the public to access (limiting the ability to replicate this study) and because qualitatively assessing the issues raised is more subjective than quantitatively assessing the type of counsel assigned to an appeal. Put simply, tracking issues would have required the kind of subjectivity that I strove to avoid when compiling the data for this piece. In addition to the issues raised on appeal, other potential variables affecting outcomes might have been the composition of Court of Appeals panels, (183) whether error was preserved by trial counsel, (184) or whether the case involved a guilty plea or trial. (185)...