The trials of indigent defense: type of counsel and case outcomes in felony jury trials.

• Author: Cornwell, Erin York
• Position: How Do We "Do Data" in Public Defense?

ABSTRACT

Previous research shows that clients of public defenders are not necessarily more likely to be convicted than those who hire private attorneys, but this work largely reflects cases adjudicated through plea bargains. Little attention has been devoted to how the context of a trial shapes outcomes across defendants with private and public defense counsel. In this article, I outline how disparities in resources and differences in courtroom roles may put public defenders at a distinct disadvantage in cases adjudicated through trial, leading to higher rates of trial conviction among indigent defendants. Then, I explore this using data from a National Center for State Courts (NCSC) study of 314 felony jury trials in four urban jurisdictions. The data include both the jury's verdict as well as the judge's evaluation of the defendant's guilt, which permit comparison of jury verdicts with probable bench verdicts. I find that judges' evaluations of defendant guilt do not differ across type of counsel, but defendants who rely on public defenders about twice as likely to be convicted by the jury compared to those who hire private attorneys. And, among defendants who would have been convicted by the judge, those who have a private attorney are nearly 2.7 times as likely to be acquitted by the jury. These disparities are not explained by differences in case characteristics, amount of evidence presented at trial, or evaluations of attorney skill. I conclude by urging further research to examine the mechanisms through which indigent defendants may be disadvantaged in jury trials.

1. INTRODUCTION

   The popular view of indigent defense is one of overworked and underfunded public defenders who put their clients at an extreme disadvantage in the context of trial. In a well-publicized lawsuit, the New York Civil Liberties Union recently argued that New York's indigent defense system fails to provide adequate representation, particularly at critical stages of the criminal process. (1) Stories about individual defendants, such as Terrance Miller, also offer vivid depictions of shortcomings of indigent defense at trial. Miller, who was facing drug charges in New Jersey, met his public defender for the first time outside of the courtroom just forty-five minutes before his trial. Due to case overload and rapidly shifting court schedules, the public defender had no chance to conduct an investigation or prepare for what Miller might say on the witness stand. Not surprisingly, Miller was convicted by the jury. (2) Stories like these imply that public defenders' representation of their clients--particularly at trial--may contribute to disproportionate conviction of indigent defendants. (3)

   However, previous research does not bear out the inadequacy of indigent defense. Empirical studies find that defendants represented by public defenders are not more likely to be convicted than those who retain private counsel. (4) One explanation for this disjuncture is that, despite inadequate resources, the majority of public defenders are dedicated and effective advocates for an extremely large proportion of indigent defendants. (5) An additional possibility is that aggregate statistics on conviction rates obscure inequalities at earlier stages of case processing (6) and across different methods of adjudication. But because about 95% of all felony cases are disposed through plea bargaining, (7) research examining conviction rates within particular jurisdictions is effectively studying guilty pleas. (8)

   This article extends previous research by examining disparities in trial outcomes. The main goal is to consider whether defendants who are represented by the public defender are disadvantaged at trial. Building from classic sociological research on lower courts, as well as studies of jury decision making, I outline how courtroom roles and the structure of indigent defense restrict public defenders' ability to prepare for trial, aggressively counter the prosecution, and persuade the jury. Then, I use data from 314 felony jury trials, collected by the NCSC, to test whether defendants who rely on the public defender are more likely to be convicted by the jury. Next, I explore whether the public defender is particularly disadvantaged with the jury. To do this, I examine judges' evaluations of the jury trials and test whether indigent defendants would have been more likely to be convicted by the judge had the trial been a bench trial. Finally, I consider whether private attorneys are more likely to persuade the jury to acquit defendants whom the judge would have convicted.

2. WHAT A DIFFERENCE A TRIAL MAKES

   Sociological research on lower courts describes how routine interactions in the day-to-day grind of urban courts provide fertile ground for collaborative relationships among court actors. (9) Plea bargaining is a natural extension of this, particularly when prosecutors and public defenders are overloaded. Negotiating cases allows actors to cooperate and increase their efficiency, such as through the establishment of "going rates" for particular types of cases. (10) In plea bargaining, relationships with prosecutors can be a significant advantage for public defenders--allowing them to secure better terms than private defense attorneys. Prosecutors may be more willing to openly share information with public defenders, (11) for example, and socializing in courthouse hallways and cafeterias provides opportunities to communicate informally and smooth over disagreements. (12) Prosecutors may also offer better deals to public defenders because they anticipate future bargaining--and they might need a favor later. (13) Some private attorneys who specialize in criminal defense work become courthouse regulars as well, but they are, overall, less likely to develop the kinds of "insider" relationships with prosecutors and judges that public defenders have. (14) Thus, in plea bargaining, indigent defendants may benefit from their public defender's collegial relationship with the prosecutor.

   But when cases go to trial, things are different. For one thing, the distribution of cases across public defenders and private attorneys may contribute to notable disparities in trial outcomes. Cases handled by private attorneys may be materially different from those that go to indigent counsel. For example, Hoffman, Rubin, and Shepherd suggest that some defendants who qualify for indigent counsel may be able to stretch their finances or borrow money to hire a private attorney. (15) They theorize that these "marginally indigent" defendants are more likely to hire an attorney when they are innocent, and when they have a stronger case. In addition, private attorneys can decide whether to take a case--and they may turn down cases that seem less defensible. Private attorneys may therefore be working with a more promising set of cases, leading to lower rates of conviction among their clients. Selection into trial is also relevant here. Private attorneys are likely to be more liberal in advising their clients to go to trial, (16) whereas public defenders may try to avoid time- and resourcetaxing trials for all but the strongest cases and the most persistent defendants. This means that the pool of cases brought to trial by public defenders may be stronger than those tried by private attorneys, leading to lower conviction rates for clients of public defenders.

   But more important for this article is that bench and jury trials are more public and less routine forms of adjudication, and they tend to be more adversarial than plea bargaining. Though plea bargaining may incorporate adversarial components, trials are likely to produce more aggressive argumentation among attorneys. Below, I outline how more adversarial forms of adjudication put public defenders at a distinct disadvantage and may turn their collegial relationships with prosecutors from a benefit to a liability.

   Once a defendant has decided to go to trial, billing practices, resources, and office organization structure defense counsel's investments in trial preparation. Although retainers are common among private attorneys, these are often limited to pretrial work, with trial preparation billed hourly. This incentivizes private attorneys to invest time and resources in trial preparation. Private attorneys can bill their clients for costs associated with investigation, deposing witnesses, and seeking expert opinions. On the other hand, most public defenders are salaried and face a high volume of cases and administrative pressure to clear cases--all of which create disincentives to spend time preparing for trial. And, while the high volume of cases handled by the public defender's office likely generates some economies of scale in terms of trial preparation, in-house trial preparation experts such as investigators, clinical psychologists, and forensic specialists are relatively rare. (17) Thus, private attorneys may be able to present a more robust defense, with exhibits and witnesses, than public defenders.

   Attorney skill may also enhance effectiveness at trial, although assessing attorney skill and determining how it shapes trial outcomes is a tricky proposition. Prior research using measures of overall skill or specific courtroom behaviors has found little effect on case outcomes. (18) But attorney characteristics that may be a proxy for skill, such as trial experience, are associated with more favorable case outcomes. (19) On this front, public defenders may be disadvantaged for two reasons.

   First, public defenders are likely to be less experienced than private defense attorneys, in general. Over half of public defenders are hired right out of law school and most of them stay in the office for only four or five years. (20) Even seasoned public defenders have little experience with trial. To address this, some public defenders' offices siphon trial work to specialized attorneys in the office. (21) Professional...