Dallas Criminal Lawyers - Broden & Mickelsen

PUBLIC DEFENDER VS. PRIVATE ATTORNEY

An interesting study was reported in the New York Times discussing the difference between being represented by a public defender as opposed to being represented by a retained attorney in a criminal case. The study was conducted by two economists for Emory University. The study concluded that in serious cases “the average sentence for clients of public defenders was almost THREE YEARS longer than the average for clients of private attorneys.” Moreover, when all cases were considered, the average sentence for clients of public defenders was almost FIVE YEARS longer than the average for clients of private attorneys.

The January 8, 2007 New York Times Report is set forth in full:

SIXTEEN years as a state trial judge have left me with a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom. In fact, I’ve told friends, only half-jokingly, that if they are ever charged with a serious criminal offense, the first thing they should do is give all their assets to charity, in an effort to qualify for public defender representation.

So when two economists from Emory University, Paul Rubin and Joanna Shepherd, agreed last year to collaborate with me on an econometric study of how effective public defenders really are, I had to guard against confirmation bias. I was positive that public defenders would prove more effective than their private counterparts. Mr. Rubin and Ms. Shepherd, with their occupational faith in markets, were equally positive of just the opposite. In the end, the economists were right, though with an interesting twist. (The full study has been published in the Ohio State Journal of Criminal Law.)

We looked at all 5,224 felony criminal cases filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.
We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.

But our most notable finding was hidden in one of the variables we had controlled — the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can’t make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients’ sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.
But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits. But, you might ask, do criminal defendants ever really have a choice between public defenders and private counsel? It appears many do.

Our data suggested that, contrary to the law’s rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called “marginally indigent.” They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision? Just what you’d expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction.

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family’s and friends’ resources to hire a private lawyer when he could get a free public defender to achieve the same result.

At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn’t that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?

In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes.
More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications. Roughly one-third of all states have formal statewide public defender systems, and several others have regional or local systems. Current debates about improving these systems tend to revolve around two poles: increased financing (for which public defenders have been clamoring since the 1980s, when per client spending in most systems, in real dollars, took a nose dive from which it has never recovered) and, more recently, privatization.

If it is true that public defenders achieve substantially worse results for their clients than private lawyers, that fact should be troubling to us all, quite apart from whether the difference is the product of underfinancing, government inefficiencies or both.

But our results suggest a more benign explanation, and a less drastic solution than spending more on public defenders or privatizing the system. If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency. This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.

CHANCES OF SUCCESS IN A FEDERAL APPEAL

In an interesting 2006 report issued by the United States Court of Appeals for the Fifth Circuit, it was estimated that the Court granted oral argument in 10.5% or criminal cases. The Report also indicates that the reversal rate in the Fifth Circuit is approximately 8.3% in criminal cases.

In contrast, Clint Broden has obtained oral argument in approximately 50% of the more than sixty federal appeals he has filed. In contrast, Clint Broden has obtained relief for his clients in approximately 25% of the appeals he has filed.

For a copy of the report click here Fifth Circuit Report

Download fifth_circuit.PDF

Some Bizarre Death Penalty Laws

    Recently I had a Federal judge reject my attempts to keep a client on death row from being executed.  I was appointed to represent the defendant after he had lost his trial; lost his appeal in state court; and lost his attempt to convince the trial judge to find his case constitutionally flawed pursuant to a "writ of habeas corpus."  I was appointed, as Federal law provides, to represent him in relation to his final "appeals" to Federal court. 
    After I was appointed to represent him I asked the judge to let me have investigators and the funds to thoroughly review his case.  Eventually the court agreed to let me do this.  The evidence of guilt was overwhelming but the investigation revealed that the trial attorneys had failed to put on hardly any evidence in the phase of the trial in which the jury is supposed to hear all the evidence relevant to the question of whether he should live or die.  The Supreme Court has made it increasingly clear over the years that it is unconstitutional in this day and age to execute someone unless the jury is provided a complete overview of the defendant's life.  The good, the bad and the ugly.  Yet this clearly did not happen in this case.  Easy answer right?  Just retry the defendant on the question of whether he should be executed.  Wrong!
    The problem is I did not find out all of this information until it is too late.  The law provides that if an allegation is made that the trial lawyers failed to do something it has to be raised in the first state writ of habeas corpus.  If it wasn't raised then it may never be considered again.  Why wasn't the evidence presented in the first state writ of habeas corpus?  The defendant had a lawyer didn't he?  Yes, but one that worse than having no lawyer at all.  The trial court appointed a lawyer who had just graduated from law school and had no experience in death penalty litigation.  It appears she simply had no idea what she was supposed to do because she raised no meaningful issues in the state writ of habeas corpus.  Well, in that case the courts should just allow the defendant another chance to file a state writ of habeas corpus right?  Wrong again.  The courts are afraid that if the failures or inadequacies of state habeas counsel could result in "do overs" the death penalties appeals really would never come to an end.  So if state habeas counsel drops the ball, to bad, so sad," for the defendant.
    Consider the upshot of all this for a moment.  The defendant is guilty.  As a practical matter the only question is whether he should spend the rest of his life in prison or be executed.  The Supreme Court says no automatic death penalty.  The jury must here all relevant evidence about the defendant before it can make such a momentous decision.  The court appoints the defendant a lawyer who fails to put even a fraction of all the relevant evidence before the jury.  The first appeals lawyer can't do anything about it, even if he knew about it, because the law says in the first appeal the lawyer can only talk about things that were before the court at trial and the whole point is the trial lawyer did not place any of this information before the court.  The court then appoints an inexperienced lawyer who has no idea what she is supposed to do to prepare and file a state habeas petition.  She does no investigation and thus makes no mention of the failure of the first attorneys to present any of this evidence.  Then the courts appoint the defendant a new attorney and tell that attorney that he is limited to carrying forward the frivolous claims of the first habeas attorney.  When he informs the court of all the important evidence the jury never heard, the court then responds, "the defendant failed to raise these issues in the first habeas corpus and thus cannot raise them now."  Really?  The nearly retarded defendant with a fourth grade education on death row?  He didn't do anything but sit in his cell.  The courts initially failed to appoint competent attorneys for the defendant.  The attorneys that the court assigned to the defendant failed him and the public, who would like to believe that before people are executed, the jury that imposed the death sentence was making an informed decision.  In reality, the courts are far more responsible for the failure of this evidence to presented to the jury than the defendant himself.   In fairness to the judges the law provides for this "Catch 22," but sometimes the law promotes more injustice than justice.

Dallas County Exonerations

    Recently in the media there have been numerous stories about the exoneration of inmates from the Texas prison system.  Texas has had more exonerations than any other state and Dallas more exonerations than any other city.  Most of these exonerations have come about as a result of the noble efforts of the Texas Innocence Project.  This nonprofit organization has sought cases in which an inmate's credible claims of innocence could be corroborated by DNA testing that was not available at the time of the offense.  Given that most credible claims of innocence are not subject to such verification this phenomenon strongly suggests there are many innocent people languishing in prison.
    Why is Dallas ground zero for these exonerations?  I think there are two principal reasons.  The most often cited reason is that Dallas County maintains its evidence in relation to closed cases longer than any other county.  This means many more defendants from Dallas County can verify there claims than in other counties.
    The other reason is more troubling.  In my opinion there exists in Texas institutional hostility to the idea of exoneration.  In most cases Texas judges have resisted efforts to have the State make evidence available for the defense for DNA testing.  In general, in the numerous efforts I have been involved in to free someone unjustly imprisoned, I have found most Texas judges reluctant to even give my claim a fair hearing.
    Why is this so?  In Texas judges are elected.   As a result most judges come from the ranks of the prosecutor's offices and run on a tough on crime platform rather than a do justice platform.  Acknowledging the incarceration of the innocent is simply bad politics.  In addition, most judges feel overwhelmed with their case load that is generated by new arrests and charges.  They have a natural reluctance to carefully reexamine cases once litigated. 
    I don't think these observations fully explain what is happening but appear to me to be two important contributing factors.  I only hope the public awareness of these exonerations will make more people interested in electing fair judges rather than tough judges.