"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, May 09, 2006

Requiem for Gideon?

Ken worries that "underpaid" defense attorneys might not be giving "effective assistance of counsel" because their clients may feel that they cannot "risk" a trial when an underpaid lawyer does not have enough time to prepare the case adequately. (this is somewhat odd, since Ken admits that all the court-appointed lawyers he knows devote themselves to the interests of their clients. By that measure, surely they will be reasonably prepared to try the case if the client wants a trial. My own experience confirms this: I haven't tried a jury case yet with a court-appointed lawyer who didn't do a competent job. On the other hand, I have tried cases with "real" [retained] lawyers, who did horrible jobs at premium prices-- ironically, the very lawyer Ken mentions in his posting was one of these "real" lawyers who did a far worse job for his paying client than most of the court-appointed lawyers in this area would have done for him. Competency cannot be measured by compensation).

But Ken's worried clients may have another option since according to a soon-to-be-released study, defendants may be better off just skipping the lawyer altogether. Georgia law prof Erica Hashimoto apparently has found that:
pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto's review of data, a sample from the National Archive of Criminal Justice Data that covers the country's 75 largest counties in the even years between 1990 and 1998.

Wow. Maybe lawyers aren't the saviors of mankind after all. Just think of all the heroic defense lawyer scripts Hollywood will have to revamp and the oh-so-pious books that will have to reconsidered.

Please don't take it too hard guys. I'm sure those biglaw places and the PI firms have room for y'all!

HT: Crim Prof Blog


Ken Lammers said...


You might mention that when the professor tried to find a replication of the data pattern she was unable to do so.

Anyway, who does a study based upon reports of the even years between '90 - '98? Something screwy about that.

Tom McKenna said...

Don't worry Ken. I know you defense attorneys are still vital to the system of justice, etc., etc. (yawn).

Just tweaking you guys a little, that's all!

Anonymous said...

The really professional attorneys that I know are respectful of their opposing counsel and opposing counsel's role. Those are the lawyers that I admire and strive to emulate. Snide, snickering lawyers who engage in personal attacks on opposing counsel do not garner my respect. They do not garner respect from the judges I know, either. Maintain some dignity in the profession, man!

Anonymous said...

Lawyers and judges make snide comments about each other all the day. In fact, this is presence in just about every context. Sometimes it is overt. Sometimes it is subtle. I am not going to get on a high horse and say that it is rare or even ineffective, because, quite frankly, everyone does it. (Even the very same judges that give pretentious speeches about the need for professionalism. They are the worst.) So, in that regard the above poster is naive.

To get the substance of the argument, I think that Ken’s point is that underpaying counsel creates per se ineffective assistance of counsel because the state has actually interfered with the ability of a criminal defendant to pursue his defense, by essentially saying that beyond a certain point in time, counsel will not be compensated. Now, as Tom and Ken agree: appointed counsel will work above the cap. However, a literal reading of part of Stricland indicates that “For that reason, the Court has recognized that ‘the right to counsel is the right to the effective assistance of counsel.’ Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense” Therefore, Tom, it is being argued that when decisions are made with the government controlling the purse-strings, the right to counsel is being burdened.

BananaJunior said...

Hey Tom (and Ken),

Assuming this result is real, I can think of a very simple explanation for this.

Imagine you're someone accused of a crime, let's just say a felony because everything's a felony pretty much, for no reason. I'm sure Ken knows just how little it takes to get someone charged, and even Tom knows in his heart that it's like that. Not just if they're poor and black, either, don't gimme that Democrat party-line. Anybody will be charged if someone else makes a report, regardless of evidence. Ok? Usually people who file false reports are scum, and usually scum associates with scum, so usually the accused is guilty of something anyway. But it's pretty easy for an actual innocent to be charged. Horror stories of people I know personally provided upon request - none from Virginia, but I imagine it's the same everywhere.

So now you were accused of something. You make too much money to qualify for a public defender. If you can work a job full-time, say you make like $20,000 you lucky guy, now you're 'rich' and you don't get a PD. So let's see, all we need is about $10,000 right away for a lawyer, where to get that? There's a chance that family will throw in, hire a cheap shyster, but he isn't going to want to do a trial. He's going to be like "I got $5000, I can do a plea for that, but if you want a trial it'll be extra or you're on your own, buddy"....

But who wants to take a plea if they're innocent? Yes, Tom, no prosecutor would ever charge anyone of a crime unless they'd actually done it. Your conscience is clear, and Jesus loves you. But I'm sure it could happen.

So you're innocent. You'll explain it to the prosecutor, he'll drop all charges, right? Or you can just explain it to the judge?

Balony. They'll want you to plead to SOMETHING. That's their job. So you need a trial.

You can't afford a lawyer who will do a trial. Maybe one who will do a plea. But not one who will do a trial. So there is only one thing to do - go in there per se and hope the jury sees things your way! Hope they vote on the merits of the case and not on whether they like your looks or something like that.

So ... a lot of these per se guys are getting off. Because they're better at arguing their cases than a lawyer would be? No! It's because they're often ACTUALLY INNOCENT! It's because their cases are actually good! And a trial, that they cannot afford a lawyer at, is the only way they have a chance.

That's my explanation for the data. It's not that lawyers are useless. Just that they're so expensive for anyone who actually wants to fight a charge, however baseless, that those with good cases are likely to go and fight without one.

Just my opinion. But I might be right. Worth considering.

Anonymous said...

What Democratic party line? I looked on the DNC's website, and I didn't see anything that could be construed as relating to this post. Did you make it up?

Anonymous said...

Why are you attacking Feige's book? You haven't even read it! No one has. It's not out yet. Feige may be a "big, self-righteous blowhard" (his words) but he at least admits it.

Anonymous said...

It is very very bad for a lawyer to offer an opposing argument to something that he has not read.