Active Role Players in American Criminal Trial - Essay Example

Introduction In a typical US criminal trial there are essentially three active role players. They are the defense attorney, the prosecutor and the judge. Although both the jury and the accused person are important participants in the criminal trial their functions are primarily influenced by the manner in which the three role players conduct the trial. In other words, the jury’s view of the defendant which will determine his fate is dictated by how the case is presented by legal council for both sides. The judge’s role is impartial and he will preside over the substantive and procedural conduct of the trial. While the presiding judge’s job is to ensure that the prosecution presents the case in a manner which is consistent with the law he is under no duty to ensure that council for either side is competent. As a result representation of a defendant at trial is very important if the defendant is going to benefit from a trial of the issues. It is important to remember that not all criminal trials involve jurors and not all parts of a jury trial require the jurors to remain a part of the proceedings. In Powell v Alabama Justice Sutherland explained the absolute requirement for legal representation at a criminal trial. He said that ‘the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ (Powell v Alabama 287 U.S. 45 (1932)) In delivering the judgment for the court, Justice Sutherland went on to explain that in the event a defendant is charged with a capital offense and could not afford to retain council the court had a residual duty to appoint council for the defendant. Failing to appoint council was tantamount to a denial of the right to due process of law under the fourteenth Amendment to the US Constitution. (Powell v Alabama 287 U.S. 45 (1932)) The right to have council appointed by the court in a criminal trial was expanded to federal offenses in the case of Johnson v. Zerbst. In this case Justice Black interpreted the sixth amendment in such a way as to guarantee the right to the assistance of council at a criminal trial which involved a duty on the part of the court to appoint council if the accused person could not afford one. He said, ‘the Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.’ (Johnson v. Zerbst 304 U.S. 458 (1938).) The right to assistance of council and the appointment of council in the event a defendant could not afford one was finally recognized in all criminal matters by a unanimous court in Gideon v. Wainwright 372 U.S. 335 (1963). In this case the court held ‘that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.’ (Gideon v. Wainwright 372 U.S. 335 (1963)) The US government responded to the ruling in this case by setting up services so as to provide indigent defendants with representation in criminal trials. Public Defenders The first public defenders’ office was established in 1914 in Los Angeles County following an aggressive campaign by female attorney Clara Shortridge Foltz. By 1921 the Public Defenders’ office would be expanded throughout the state of California. (Schwartz, Brandt and Milrod 1976) Since that time the Public Defender services expanded nationwide although public defender offices do not exist in each and every jurisdiction within the United States. (Rosenfeld 1976) In some jurisdictions indigent persons accused of criminal conduct are represented by attorneys in private practice who have entered into contracts with the court in the county of their law firms. In other instances the courts can appoint an attorney in private practice who will take their fee at a ‘below market’ rate and the appointing court is responsible for that fee. Some private firms also receive government grants for the sole purpose of taking on indigent clients. (Rosenfeld 1976) The obvious difficulty with representation by the public defenders’ institution is the disparity between their resources as compared to the resources of the prosecutors. Obviously, this puts the public defender in an inferior position to the private defender as well. The American Bar Association warns that ‘a big problem is that public defenders may not have the tools they need to do the job well. Public defender offices almost never have enough money. Public defenders may have office support services, but they often lack such additional support as investigators, expert witnesses, and social workers.’(Assuring Equal Justice For All) Moreover, the Civil Liberties Union and the National Association of Criminal Defense Lawyers have expressed concerns for the effectiveness of public defense representation. These entities claim that public defenders ‘are so swamped that they can’t even dream of satisfactorily representing their indigent clients.’(Gibeaut, 2001) Public defenders often work within stifling economic constraints in which many of the attorneys on staff are young and inexperienced. Financial constraints also have the result of over burdening public defenders with very large case loads. This negatively impacts upon the quality and quantity of time and attention that a public defender can give his client and his case before and during the trial. Moreover, as the American Bar Association avers that ‘t h e re may be no money to hire expert witnesses, or investigators to check out the facts. It’s hard to put on a successful case under these circumstances.’ (Assuring Equal Justice For All) For obvious reasons these matters are concerns for indigent clients and it does not help since the ruling in Strickland v. Washington 466 U.S. 668 makes it virtually impossible to successfully appeal a conviction on the grounds of ineffectiveness of council. In order to succeed, Justice Sandra Day O’Connor opined that the appellant much demonstrate that his lawyer performed poorly but that he by his conduct unfairly prejudiced the ultimate outcome.(Strickland v Washington 466 US 668) Public Defender v Private Defender A number of studies unquestionably conclude that public defenders suffer less desirable results in the conduct of a criminal matter than do their counter-parts in the private sector. In one study conducted by the US Department of Justice in 1996 indicated that 69 per cent of clients who engaged private counsel consulted with their lawyer within one week of arrest while only 47 per cent of the indigent client consulted with their public defendant within that time frame. (Hoffman, Rubin and Shepherd 2005) The Center for State Courts reported that in 1992 clients engaging private counsel suffered a 160-day delay in bringing their matter to trial while indigent clients who engage the services of the public defender suffered only a 103-day delay. (Hoffman, Rubin and Shepherd 2005) This disparity in the length of time that a public defender takes to bring a matter to trial and the length of time that the private defender takes to bring a matter to trial demonstrates the relative caseloads each defender wrestles with. The public defender who is most likely struggling under an ever increasing case load is under pressure to dispose of his matters at a greater speed than the private attorney. Another study conducted by McConville and Mirsky show that private defenders engage in more active participation of their cases than the public defender. The private defender in New York City files substantially more motions than the court appointed counsel.(McConville and Mirsky, 1987 pp 766-770) This data suggest that private defenders, apart from having an economical incentive for dragging a case out, also shows that private defenders spend more time researching the law and preparing for trial. The obvious conclusion is that the private defender is more familiar with his case than the public defender is. The American Bar Association maintains that ‘effective assistance of counsel’ entails an obligation on the part of the defending attorney to meet with his client prior to making important decisions about the direction of the case. However, this is often not the case. The American Bar Association reported that upon conducting an investigation in Calcasieu Parish, Louisiana, it found that in 83 per cent of the cases investigated in that parish, ‘there is nothing to suggest that a public defender ever met his indigent client out of court. What happens, therefore, is that on the morning of the trial, the public defender will introduce himself to his client, tell him the ‘deal’ that has been negotiated, and ask him to ‘sign here.’ (Louisiana 2005) John Gibeaut describes the reality of the situation, ‘the defenders still are so strapped for cash and staff that they can’t independently investigate individual cases, meaning they have to rely on their clients’ often foggy memories. A lone wooden chair in the hallway outside the office serves as their waiting room. Because they can’t always afford a court reporter, the defenders make records of some proceedings with a cassette recorder placed on the witness stand..’ (Gibeaut 2001) The fact that the state of Texas has taken steps to improve the public defenders’ institution in that state speaks volumes to the inadequacies of public defender representation. Gibeaut notes that in 2001 the state of Texas passed legislation that endeavors to improve public defender representation. One notable statutory reform calls for speedy appointment of legal counsel to represent the indigent suspect charged with a criminal offense. Another statutory measure sets a minimum standard for the public defender in terms of his or her training and experience. Moreover, Texas set aside US19.7 Million for the public defense fund to aid in their 254 jurisdictions. It is estimated that these jurisdictions were paying up to US90 Million per annum in provision of legal services to the indigent. (Gibeaut 2001) Conventional wisdom suggests that the public defender is under paid and overworked. This is what many attribute to the perceived ineffectiveness of representation by public defenders. Champion magazine acknowledges that it is unrealistic to expect quality representation from an underpaid and overworked attorney. Obviously this is why the state of Texas revised its laws with respect to the public defenders service. Champion magazine reports that it is generally understood ‘that defending the downtrodden is overwhelming pro bono work. Criminal defense lawyers take many cases free of charge, and the salaries of public defenders and fees for appointed counsel are at the absolute bottom of legal services. No competent criminal defense lawyer can live on court-appointed fees, and many public defenders are permitted an outside private practice to supplement their meager governmental stipend. The work of these lawyers in this calling is unquestionably “for the public good.”’(The Right to a Lawyer. 2003) By virtue of a study conducted in the state of Colorado in 2002 in which all felony cases filed that year were scrutinized, researchers found that the results for cases managed by public defenders were outperformed by cases managed by the private sector. However, ‘this study suggests that the traditional explanation for this difference—underfunding resulting in overburdened public defenders—may not tell the whole story.’ (Hoffman, Rubin and Shepherd 2005 p.223) Hoffman, Rubin and Shepherd comment that the effectiveness of the public defenders’ legal representation has come under considerable scrutiny and criticism. ‘Much of that debate has taken the form of empirical studies comparing in some fashion the “effectiveness” of public defenders and private criminal defense lawyers, with wildly mixed results.’ (Hoffman, Rubin and Shepherd 2005 p.224) Early on a majority of the studies conducted reflect that the public defenders were no less effective than council from the private sector. This was so despite the obvious differences in lack of funds and ‘economic disincentitives.’ (Hoffman, Rubin and Shepherd 2005 p.224) However, after 1989 a great number of research results demonstrated that ‘that private counsel were substantially more effective than public defenders.’ (Hoffman, Rubin and Shepherd 2005 p.224) Hoffman, Rubin and Shepherd place little reliance on these studies claiming that they were based on bogus research methods. ‘The most startling thing about these studies is not that they reached different results, but rather that almost none of them measured actual sentence outcomes. Instead, they compared things like how soon the defense lawyer first met the client, the time from filing to disposition, the number of defense motions filed, plea bargaining rates and conviction rates.’ (Hoffman, Rubin and Shepherd 2005 p.224) Very few of these research studies scrutinized dismissal rates and reduced sentences ‘without quantifying that reduction’. (Hoffman, Rubin and Shepherd 2005 p.225) The weaknesses of these research methods are found in the areas examined. Hoffman, Rubin and Shepherd maintain that what researchers failed to examine is the very thing that is most important to the putative client. That is the ultimate outcome of the trial. They are not concerned with things such as the length of time that a lawyer takes to complete a matter, unless of course he or she is remanded in custody. They are less concerned about whether a case is plea bargained or actually goes onto trial or the dismissal rate. Their ultimate concern is ‘for how long, if at all, was the defendant sentenced to incarceration?’ (Hoffman, Rubin and Shepherd 2005 p.225) Very few studies have examined the actual sentencing results and there is no evidence to suggest that a regression method was utilized to compare the magnitude of the offenses for which the suspects faced trial. Furthermore, many of the studies claim that their results were based on sentence studies while they only studied the type of sentences rather than the actual duration of any sentence or defendants who received custodial sentences. (Feeney and Jackson, 1991) Hoffman, Rubin and Shepherd’s research purports to have taken a more reliable approach. They purport to take into account all sentences imposed on all defendants. However, what Hoffman, Rubin and Shepherd found was that any study must keep in mind that there are factors that render any results less than accurate. For instance, there is the very real possibility that indigent clients are more likely than not to be incarcerated rather than free on bail or could also have antecedents. An incarcerated client is under is under far more pressure than a bonded client to negotiate a plea bargain. Moreover a convict with antecedents is more likely to receive a harsher sentence than a first offender. (Hoffman, Rubin and Shepherd 2005 p.227) As a result of these potential variables Hoffman, Rubin and Shepherd warn that ‘although our statistical techniques could in theory control for these variables, the data available to us did not allow us to do so. These potential biases require us to be cautious in the conclusions we draw from any study of public defender effectiveness. Nevertheless, observers continue to examine public defender effectiveness, researchers continue to find contradictory results (though only a few look at actual sentence outcomes), and policy makers want to know what it all means.’ (Hoffman, Rubin and Shepherd 2005 p.225) Hoffman, Rubin and Shepherd described the Colorado study in the following terms:- There were 5,224 felony cases filed in Denver in 2002; we were able to examine outcome data for 3,777 cases.32 We used regression analyses to measure the effect that the type of defense lawyer has on sentence outcomes and on the number of procedural motions filed. Regression analysis enabled us to separate the effects of many different factors on our measures of these two variables, and thus to measure the impact of the type of defense lawyer, while controlling for other factors that may affect case outcomes. Specifically, we controlled for the seriousness of the charges against the defendant, whether the case went to trial, and the number of counts filed against the defendant. We also performed regressions with different combinations of controls to ensure that our results were not sensitive to the variables included in the regressions.’ (Hoffman, Rubin and Shepherd 2005 p.230) The results of this analysis reveal that indeed the effectiveness of public defenders is at a level that is less favorable than that of the private defender. However, the reasons for the ineffective representation by public defenders do not accord with conventional wisdom. It appears that when indigent clients are charged with less serious offenses they are happy to secure the public defender. However, when charged with a more serious offense they somehow manage to put a retainer together. The existence of these marginally indigent clients ‘arguably skews the effectiveness results against public defenders, because, if private counsel on average handle more serious cases than public defenders, private counsel have more room to be “effective” in the sentences they achieve. So we re-calibrated the data controlling for the seriousness of the felony, but the results remained them same: public defenders still achieved worse outcomes than private counsel.’ (Hoffman, Rubin and Shepherd 2005 p.230) The results of these Colorado felony case examinations rebuts that the traditional view that an over-burdened, under-paid public defender is expected to under-perform. The reality is that many indigent clients are more apt to be guilty of the offense with which they are charged. As Hoffman, Rubin and Shepherd explain, ‘if you are a marginally-indigent defendant, and you know not only that you are guilty but also that there is a very high probability that you will be convicted (for example, your crime was captured on video tape), it is not unreasonable to imagine that you will be less inclined to scrape together the money for private counsel than if, for example, you know you are wrongly accused.’ (Hoffman, Rubin and Shepherd 2005 p.230) Therefore, at the end of the day it is fair to conclude that the ineffectiveness of public defenders in their representation of indigent defendants is attributed to the fact that they end up with easy to lose cases. The figures below reflect the findings of Hoffman, Rubin and Shebherd: (Hoffman, Rubin and Shepherd 2005 p.242) (Hoffman, Rubin and Shepherd 2005 p.242) Hoffman, Rubin and Shepherd maintain that the comparisons outlived in the figures 4 and 5 do indeed illustrated that the public defender’s case suffers a less desirable outcome as opposed to the result achieved by the private defender. However, there are certain key factors that can and do account for the differences in their respective performance outcomes. To begin with one must take into account that in the United States approximately 95 percent of criminal cases are not litigated and end by virtue of plea negotiations. At the end of the day only 5 percent of cases are tried and resolved on the merits. This is very important when one takes into consideration that trials claim to be a fact-finding expedition and when lawyers and the clients enter into plea negotiations they are essentially predicting the results that certain facts will achieve. Obviously, bad facts will have the effect of conviction whether or not an attorney for either side is effective or not. ‘Thus, in a system that tries only 5% of all criminal cases, the most important skill for a lawyer on either side is the ability to evaluate a case before entering into plea negotiations, not the ability to shine at trial.’ (Hoffman, Rubin and Shepherd 2005 p.245) It is agreed among virtually all researchers in the public defender effectiveness queries that public defenders are over-burdened and are less likely to have the time to effectively evaluate a case prior to trial. However, Hoffman, Rubin and Shepherd submit that this is not what accounts for the relative ineffectiveness of the public defender. At the end of the day, it has a lot more to do with the fact that public defenders end up with a bad case or a case that is destined to fail on the merits. (Hoffman, Rubin and Shepherd 2005 p.246) Hoffman and his team insist that traditional views about the public defender’s relative ineffectiveness have some impact on the outcome of trials taken by public defenders. Research suggests that a great number of persons charged with criminal offenses are ‘marginally indigent’. In other words these defendants can choose whether or not they wish to opt for a public defender or put together the fees for a private defender. What he or she opts for in the end will be largely influenced by the seriousness of the offense for which he is charged and whether or not he defendant feels that he will achieve a desirable result. (Hoffman, Rubin and Shepherd 2005 p.246) If as it turns out, ‘a marginally indigent defendant is charged with first degree murder and is innocent, and assuming he believes (rightly or wrongly) that private lawyers are more effective than public defenders,74 he will have the maximum incentive to try to raise funds to hire a private lawyer. But if that same marginally indigent defendant is charged with a misdemeanor offense witnessed by Mother Theresa, he will have no incentive to waste his and his friends’ and family’s resources on a private lawyer. Thus, assuming a sufficient number of marginally indigent defendants, public defenders will tend, on average, to get less serious and less winnable cases, which is exactly what our data shows.’ (Hoffman, Rubin and Shepherd 2005 p.246) There will be defendants who are indigent and have no option but to go along with the public defenders’ service. This is so irrespective of his feelings about his case and the likely outcome. However, as Hoffman suggests if the actual outcome depends on the facts of the case itself, an innocent person would in all likelihood achieve desirable results whether or not he is unrepresented or represented by private or public defenders. ‘If the status of “indigent” is really as ambiguous as our data suggests, the choices available to defendants could have a lot to do with the measured outcome differences between public defenders and private lawyers. Public defenders are not just overworked and underpaid, they may represent clients who, by selfselection, tend to have worse cases.’ (Hoffman, Rubin and Shepherd 2005 p.247) Another point overlooked is that it is the defendant who must by and large accept or refuse to accept a plea bargain. Hoffman and his team readily submit that public defenders tend to negotiate plea bargains to a greater extent than do private defenders. However, there are factors that indicate that this has far less to do with effectiveness of the public defender than the reality of the defendant’s situation. In most cases the indigent client is incarcerated, the facts do not support an acquittal and at the end of the day he has nothing to gain by engaging in a long and protracted trial. Whereas the private defender has a financial incentive for wanted to go to trial and seeing the matter litigated. These factors have a lot more to do with the ultimate income of a trial than the relative effectiveness of counsel. Moreover, an indigent client is likely facing a less serious offense for which he faces only 18 months if convicted and determines that to spend 6 months on remand awaiting trial is a waste of time. (Hoffman, Rubin and Shepherd 2005 p.247) Another contributing factor pointed out by Hoffman, Rubin and Shepherd is the ‘obvious institutional difference between public defenders and private lawyers,’ that many researchers have failed to take into account. (Hoffman, Rubin and Shepherd 2005 p.249) In a typical scenario, the public defender has a continuous relationship with the prosecutor’s office in that they try one case after another together, of course on opposite sides of the justice spectrum. On the other hand the relationship between the private lawyer and the prosecutor is largely limited to one-time instance. Hoffman poses the question: ‘What outcome effect, if any, might this difference in familiarity breed?’ (Hoffman, Rubin and Shepherd 2005 p.249) Relying on data amalgamated from experimental economists, Hoffman, Rubin and Shepherd conclude the following:- ‘…many situations in which strategies developed in the course of a two person game vary significantly depending on whether the same players play each other repeatedly, or whether the games are socalled “one-shot” games. When the players know each other, or when strangers get to know each other by playing each other over and over, trust between the players can have important consequences to their observed behaviors.84 The effects, if any, of lawyer familiarity on case outcome could be a significant piece of the effectiveness puzzle.’ (Hoffman, Rubin and Shepherd 2005 p.249) Conclusion After all is said and done, researchers all agree that when the effectiveness of a public defender is compared to the effectiveness of a private defender the latter comes out ahead and is a matter for which there ought to be concern. The research data leaves no room for speculation. The private defender does in fact come away from a case with a more desirable outcome than the public defender and this is particularly so when sentencing was researched.(Stuntz, 1997) Hoffman, Rubin and Shepherd conclude that ‘On average, public defender clients suffer in excess of three years more incarceration than private defense clients, even controlling for the seriousness of the charges. Whether this difference is the product of sheer under-funding or of inefficiencies of the kind embedded in government-run systems, or a combination of both, it should be deeply troubling to us all. To the extent it is the product of the interplay between criminal procedure, the plea bargaining system and underfunding…’ (Hoffman, Rubin and Shepherd 2005 pp.249-250) As illustrated in the discussion, there is no doubt that public defenders are out-performed by the private counsel sector of the legal profession. However, Hoffman Rubin and Shepherd raise some valid arguments as to the reasons for the disparity in the relative performance results. The fact remains, public defenders do not do as well in the criminal courts as do private defenders and when a litigant is looking for an attorney, he only concerns himself with the likelihood of success. He or she does not care to delve into excusing poor results, therefore it is of very little consequence for the marginally indigent client. Works Cited Assuring Equal Justice For All. (2002) http://www.abanet.org/publiced/lawday/02nie4.pdf Viewed February 23 2007 Feeney, Floyd and Jackson, Patrick G. Public Defenders, Assigned Counsel, Retained Counsel: Does the Type of Criminal Defense Counsel Matter?, 22 RUTGERS L.J. 361, 365–78 (1991). Gibeaut, John. Access to Justice. (Nov. 2001) Journal of the ABA. http://www.nacdl.org/public.nsf/DefenseUpdates/037News01?OpenDocument Viewed February 24, 2007 Gideon v. Wainwright 372 U.S. 335 (1963) Hoffman, Morris. Rubin, Paul and Shepherd, Joanna. An Empirical Study of Public Defender Effectiveness: Self-Selection by the “Marginally Indigent” Ohio State Journal of Criminal Law [2005] Vol. 3 p 223 Johnson v. Zerbst 304 U.S. 458 (1938) Louisiana. (2005) http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/downloads/la.pdf Viewed February 24 2007 McConville, Michael and Mirsky, Chester.Criminal Defense of the Poor in New York City, 15 N.Y.U. REV. L. & SOC. CHANGE 581 (1986–87) Powell v Alabama 287 U.S. 45 (1932) Rosenfeld, Arnold. Public Defenders Program. (1976) http://www.law.harvard.edu/students/opia/docs/guide-public-defender.pdf Viewed February 23 2007 Schwartz, Mortimer. Brandt, Suzan and Milrod, Patience. Clara Shortridge Foltz: Pioneer in Law. Hastings Law Journal, Vol. 27, January 1976 Stuntz, William. The Uneasy Relationship between Criminal Procedure and Criminal Justice. 107 Yale LJ (1997) The Right to a Lawyer. (2003) http://www.criminaljustice.org/public.nsf/championarticles/A0301p54?OpenDocument Viewed February 23 2007 Read More