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1 Northeastern Political Science Association The Impact of "Gideon": The Performance of Public & Private Criminal Defense Lawyers Author(s): James P. Levine Source: Polity, Vol. 8, No. 2 (Winter, 1975), pp Published by: Palgrave Macmillan Journals Stable URL: Accessed: 14/10/ :34 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact Palgrave Macmillan Journals and Northeastern Political Science Association are collaborating with JSTOR to digitize, preserve and extend access to Polity.

2 The Impact of "Gideon": The Performance of Public & Private Criminal Defense Lawyers James P. Levine Brooklyn College of the City University of New York Has the assurance of a lawyer for criminal defendants really mattered? Is not the sophisticated response that legal aid lawyers have neither the experience nor the time and resources and commitment to give meaningful help to their clients? Professor Levine reports a study comparing the performance of private criminal lawyers and Legal Aid Society lawyers in Brooklyn, New York, notes various earlier findings, and proposes certain actions to make the right to counsel more truly effective. But the performance of the legal aid lawyers turns out to be far from inept, token representation. They are surprisingly conscientious and effective advocates. However, their clients lack confidence in them, so prefer to plea bargain, rather than go to trial. This client perception is a key difference between private and legal aid attorneys. James P. Levine is associate professor of political science at Brooklyn College, CUNY. He taught previously at the University of Oregon and at Michigan State University. He has published articles on the legal process in Law and Society Review, American Behavioral Scientist, Wisconsin Law Review, Syracuse Law Review, and Urban Affairs Quarterly. His current research deals with the role of the public in law enforcement. Earl Gideon's battle against the State of Florida precipitated the celebrated 1962 Supreme Court holding requiring provision for legal counsel for all indigent felony defendants.1 The significance of Gideon v. Wainwright has been hailed by scholars2 and reporters,3 and taught al U.S. 335 (1963). 2. Archibald Cox, The Warren Court (Cambridge, Mass.: Harvard University Press, 1968), pp. 7, 73; Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court (Boston: Beacon Press, 1967). p Anthony Lewis, Gideon's Trumpet (New York: Vintage Books. 1964).

3 216 Impact of "Gideon" most as gospel to legions of students of law and government. This unanimous decision has been almost universally acclaimed as one of the triumphs of the Warren Court's quest on behalf of the poor, and even the Court's staunchest critics have hailed the decision as a laudable step in the advancement of civil rights.4 But this perception of the impact of the Supreme Court's decision is not shared by many who are closest to the real workings of the criminal justice system. The noble sentiments in Gideon are regularly denounced as hollow rhetoric camouflaging the deprivation of adequate counsel for indigents which persists to this day, the dictates of constitutional law notwithstanding. It is alleged that the poor receive token representation which is woefully inadequate to guard their rights and interests. The various programs providing free legal services designed to bring the judiciary into compliance with Gideon are condemned as creating the illusion of equal treatment while preserving a system of gross inequality. Thus, the authors of an impressionistic study of the New York City Legal Aid Society (which represents seventy-five percent of all felony defendants in New York and ninety percent of all indigents) conclude on a highly critical note: It seems firmly established that Legal Aid does not render effective assistance of counsel... to the indigents of New York City... The situation that has been described above is not only intolerable, it is antithetical to the very assumptions upon which the adversary system of justice rests.') A defendant in Casper's interview study sardonically makes the same point in answering whether he had a lawyer in court; his response was: "No, I had a public defender." 6 Both of these comments imply that "money talks"-that there is a world of difference in the quality of legal services rendered by the public and private bars. The courts, on the other hand, have generally rejected these contentions. With remarkably few exceptions, appeals of convictions based on the inadequacy of state-supported counsel have been denied. The emerging rule is that "right-to-counsel" guarantees are fulfilled as long as there is an absence of egregiously derelict conduct on the part of lawyers such 4. Clifford Lytle, The Warren Court and its Critics (Tucson: University of Arizona Press, 1968), p "The Right to Effective Counsel and New York City Legal Aid," New York University Review of Law and Social Change, 1 (Spring, 1971), pp Jonathan Casper, American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, New Jersey: Prentice Hall, 1972), p. 101.

4 James P. Levine 217 that trials become a "sham" or a "mockery of justice." 7 The assumption that lawyers paid for by the public normally give at least adequate assistance to their clients is becoming a cornerstone of constitutional law. The mandates of Gideon are said to be observed by merely showing that lawyers appointed to represent the poor have been present at formal judicial proceedings. Thus, a serious disagreement exists about the nature of services dispensed by the public bar. Both critics and apologists of our current system have self-serving interests and limited perspectives in assessing the situation. Defendants who lose in court (many of whom are guilty) are always tempted to blame their attorneys for their fate, while judges may be loathe to scrutinize lawyers' conduct for fear of encouraging a flood of motions and appeals based on the grounds of inadequacy of counsel. Besides, some commentaries on the judicial process seem to reflect general ideological convictions on class structure in America rather than careful evaluations based on sound information about the operation of the legal system.8 The few empirical studies that have been done have produced mixed findings. The Silverstein and Nagel studies, based on nationwide data gathered by the American Bar Association in 1962 revealed more favorable treatment accorded to defendants with hired counsel than those with provided counsel." More recent comparisons of cases handled in 1970 and 1971 by private and public defense lawyers in Denver and San Diego resulted in opposite conclusions: "only slight variations in performance" were detected in both cities.1' All of these conclusions rest pri- 7. For a summary of the pertinent cases, see the following: James Craig, "The Right to Adequate Representation in the Criminal Process: Some Observations," Southwestern Law Journal, 22 (Spring, 1968), pp ; Ephraim Margolin and Allen Wagner, "The Indigent Criminal Defendant and Defense Services: A Search for Constitutional Standards," Hastings Law Journal, 24 (March, 1973), pp See Gerald Lefcourt, ed., Law Against the People: Essays to Demystify Law, Order, and the Courts (New York: Random House, 1971) for a series of such ideologically based essays on the legal system. 9. Lee Silverstein, Defense of the Poor in Criminal Cases in American State Courts (Chicago: American Bar Foundation, 1965); Stuart Nagel, "Effects of Alternative Types of Counsel on Criminal Procedure Treatment," Indiana Law Journal, 48 (1973), pp For citations and brief descriptions of some minor studies, see Jean Taylor, Thomas Stanley, Barbara de Florio, and Lynne Seekamp, "An Analysis of Defense Counsel in the Processing of Felony Defendants in San Diego, California," Denver Law Journal, 49 (1972), pp Ibid., p Jean Taylor, Thomas Stanley, Barbara de Florio, and Lynne Seekamp. "An Analysis of Defense Counsel in the Processing of Felony Defendants in Denver, Colorado," Denver Law Joutrnal, 50 (1973), p. 43.

5 218 Impact of "Gideon" marily on findings about case outcomes, but they do not examine whether the various activities done by the two kinds of lawyers on behalf of their clients differ significantly. Consequently, exactly what shortcomings in lawyer's professional conduct account for any observed disparities in results remains an unanswered question. This all points to the necessity of acquiring systematic data about the kind of "lawyering" routinely done on behalf of poor defendants. In order to assess accurately the fairness of treatment accorded the indigent and the wisdom of current constitutional trends, it is indispensable that we replace our vague inklings and folk knowledge with precise facts about what lawyers actually do (and what they do not do). The true impact of Supreme Court decisions depends on their implementation at lower levels, and an inquiry about lawyers' practices furnishes an opportunity to examine how effectively the goals expressed in Gideon have been achieved in the inner recesses of the criminal courts. In short, has the "right to counsel" really benefited the poor man charged with crime or is it a sterile "law on the books" that bears no relationship to reality? I. The Study Rather than posing some abstract standard against which to assess the practices of public defense lawyers, it seems more useful to compare their behavior with the typical treatment accorded paying clients. To the extent that the private bar is functioning adequately, norms within the profession can be conceived as a minimal operational definition of what constitutes satisfactory legal representation. In adjudicating individual cases where human lives and penal sanctions are at stake, courts may want to specify and insist upon certain absolute protections, but in judging the adequacy of the criminal justice system as a whole it is more meaningful to examine whether the legal assistance that is generally given to the poor is lower in quality and quantity than that given to the more affluent who can hire their own lawyers. No doubt some legal aid recipients get the benefit of prodigious efforts made on their behalf; this is often so in highly publicized cases. By the same token there are countless tales of shoddy, ineffectual representation provided by some private attorneys whose major aim is to maximize their profit in each case and avoid running up bills which their clients cannot pay.1 But the critical issue is whether there is a systematic pattern of differential treatment that works to the disadvantage of indigent 11. Abraham Blumberg, Criminal Justice (Chicago: Quadrangle Books, 1970), pp

6 James P. Levine 219 defendants. The present study was designed to determine whether such routine deprivations do occur. The practices of private criminal lawyers and Legal Aid Society lawyers in Brooklyn, New York were studied. Although New York State permits court-appointed lawyers to counsel the poor with the government paying the fees, the Legal Aid Society (which is over fifty percent publicly funded) represents almost all New York City indigents accused of felonies. Thus, it represented about seventy-five percent of the 13,000 defendants indicted in Brooklyn in 1972; the remainder were served by private attorneys. Data was obtained by personal interviews with lawyers conducted by students of New York University Law School and the Brooklyn College Department of Political Science. The Brooklyn Bar Association provided the names of ninety lawyers specializing in criminal matters; since a very small fraction of lawyers regularly practice criminal law, this list may well have approached the total number of private criminal lawyers in Brooklyn.'2 To mitigate some of the inevitable distortions and errors which contaminate so many surveys in which people are asked to generalize about their own behavior, attorneys were asked a variety of questions about the handling of the three most recent felony cases which they handled. Respondents were required to recall specific actions which they took and to give concrete information about particular defendants rather than to rely on their general impressions about how they usually conduct themselves. To be sure, some lawyers were unable to recollect some details such as the amount of time spent on voir dire questioning of jurors and occasionally relied on rough estimates, but forcing them to discuss their knowledge of real events should have minimized fabrications and gross inaccuracies. Professional pride, legal ethics, and felt responsibility toward clients would impel many lawyers to exaggerate the extensiveness of their activities. Likewise, some "anti-establishment" lawyers who wished to portray the legal system in its worst light might be inclined to underestimate what 12. Jerome Carlin's study of lawyers practicing in Manhattan and the Bronx showed only one percent specializing in criminal law. Lawyers' Ethics: A Survey of the New York City Bar (New York: Russell Sage Foundation, 1966), p. 12. Of course, Manhattan has a very large number of commercial lawyers since it is the financial center of the nation, so the proportion of criminal lawyers is smaller than in an area such as Brooklyn. But the ninety criminal lawyers named by the Brooklyn Bar Association do represent six percent of the 1600 lawyers listed in the Brooklyn phone directory, and it is unlikely that the percentage of all lawyers devoting themselves primarily to criminal law greatly exceeds this figure.

7 220 Impact of "Gideon" they were able to do for clients. Designing the interview schedule in a way that required lawyers to stick to specific facts should have prevented some of these biases from invalidating the data. The private and Legal Aid lawyers dealt with fairly similar kinds of cases as is shown in Table I; the two distributions of cases do not differ statistically to a significant extent.13 Almost all of the charges against defendants were of a serious nature; the majority involved the use or threat of force for which the possible sentence was lengthy prison terms. Table I Types of Criminal Cases Handled by Private and Legal Aid Counsel a LEGAL AID CASES PRIVATE CASES Most serious violent crimesb 44.8% 35.4% Less serious violent crimese Property crimesd Crimes against governmente Victimless crimesf % 100.0% Number of cases Chi-square = 8.693; p >.05 (not significant) a This classification is based on the most serious charge originally made against each defendant. b This category comprised homicide, rape, robbery, and aggravated assault. c This category comprised possession of deadly weapons, assault, arson, illegal use of weapons by police, hijacking, resisting arrest, and extortion. dthis category comprised burglary, larceny, counterfeiting, auto theft, possession of stolen property, fraud, and forgery. e This category comprised bribery and perjury. f This category comprised sale of dangerous drugs, possession of dangerous drugs, promoting gambling, and drunk driving. Although the particular facts in the cases no doubt would show that some crimes in the same general category were more reprehensible than others to the seeming disadvantage of the accused, there is no basis for assuming that this normal range was different for the two kinds of lawyers. 13. In the tables that follow, the number of cases differs because respondents were occasionally unable to recall specific bits of information; all such missing data was excluded from the analysis. The "average" or "typical" behavior volunteered by some lawyers was disregarded.

8 James P. Levine 221 Thus, nothing in the cases themselves would lead one to predict markedly different dispositions. By the very nature of the task assigned to them, Legal Aid lawyers represent defendants of a lower socioeconomic class than private attorneys. Both the Society's bylaws and its contract with New York City restricts its clientele to those financially unable to obtain counsel, and this limitation has been rather strictly interpreted in the setting of maximum income guidelines.14 A single person is normally disqualified if he makes over $4,420 per year, and a defendant in a family of four is ineligible if income exceeds $6,500. Moreover, any savings of over $300 can also bar a person from Legal Aid representation, as can ownership of an automobile that is not used as a necessary adjunct of employment. Even if these criteria are loosely applied, they limit Legal Aid to a population of very poor individuals. Since the average fee charged by private lawyers in the fifty cases in which respondents were willing to divulge this information was $1,904, it is clear that they were dealing with much wealthier clients who could afford to pay these substantial sums. This would seem to put private lawyears at a distinct advantage: not only can they draw on the financial resources of their clients in building cases, but they receive the benefit of the middle- and upper-class bias apparently shared by many judges and other judicial personnel.15 Lower-income persons are often handicapped by their disheveled appearance, inarticulate expression, and lack of ties to respected parts of the community, while those with greater means usually look more respectable and sound more honest. The difference in the economic class of privately repesented and publicly defended clients gives Legal Aid lawyers a major handicap; they are often forced to overcome the prejudices of the entire legal system.16 II. Findings Experience of Lawyers. The stereotype of the public defender is the young, untutored recent law school graduate who stands in marked con- 14. These guidelines were specified in a letter to the author from the Legal Aid Society on October 23, Stuart Nagel, "The Tipped Scales of American Justice" in Abraham Blumberg, The Scale of Justice, 2nd ed. (New Brunswick: Transaction Books, 1973), pp ; Leonard Downie, Justice Denied: The Case for Reform of the Courts (Baltimore: Penguin Books, 1971), chap United States Department of Justice, The Public Defender Service of the District of Columbia (Washington, D.C.: National Institute of Law Enforcement and Criminal Justice), vol. 1, Policies and Procedures pp

9 222 Impact of "Gideon" trast to the venerable seasoned private defense lawyer who has been plying his craft for years. These popular images prove to be correct; Table II indicates a stiking disparity in the professional experience of public and private lawyers interviewed in the study. Private lawyers in the sample who were listed in the Martindale-Hubbell Law Directory were an average of eighteen years older than their Legal Aid counterparts; and the private attorneys had been practicing law nearly five times as long. Moreover, over half (51.3%) of all the Legal Aid lawyers who were interviewed stated that they had never practiced law in any capacity prior to taking jobs with the Society; their average tenure in Supreme Court practice was barely over one year. Table II Age and Legal Experience of Private and Legal Aid Defense Lawyersa LEGAL AID PRIVATE LAWYERS LAWYERS t p Average Age Average Years in p <.001 (sig.) Bar Number of Lawyers p <.001 (sig.) a This information was taken from the 1974 Martindale-Hubbell Law Directory. Many of the lawyers interviewed in this study were not listed in the Directory, because only those lawyers who respond to the questionnaire sent out to all members of the Bar by the Martindale-Hubbell Publishing Company are included in the directory. Whether this differential in age and experience has a bearing on professional competence is problematic, but it must make a deep impression on many defendants' perceptions of the quality of their counsel. Legal Aid clients may intuit that the young lawyers assigned to them are "green"-lacking the "savvy" and practical knowledge of the older lawyers who presumably have greater familiarity with the legal system. If this is true, these indigent defendants may be disinclined to take their lawyers' advice and unwilling to entrust them with the responsibility of undertaking a risk-laden trial defense. Pre-trial Services. A good legal defense requires elaborate pre-trial preparation. The brilliant logic or dramatic oratory of a lawyer often are irrelevant if they are not buttressed by a solid factual foundation and a

10 James P. Levine 223 firm understanding of the legal niceties involved in the case.17 The trial, and to a lesser extent the plea negotiations, are the culmination of work done outside of court, and the persuasiveness of a lawyer's presentation at these decisive stages depends directly on the quality of information which has been collected earlier. The amount of effort and resources expended by lawyers in constructing defenses is summarized and compared in Table III. There are some apparent disparities between the private and public lawyers on some specific facets of case preparation, but only the difference in the amount of time spent on the initial interview with clients turns out to be statistically significant. Similarities rather than differences stand outimplying that relatively equal treatment prevails at the pretrial stage. Moreover, although private lawyers spend over twice as much time on their first meeting with defendants, even this major discrepancy may be misleading because Legal Aid lawyers normally do not start from scratch when first meeting their cients. Rather, they have access to information garnered from previous interviews conducted by other Legal Aid lawyers assigned to Criminal Court where the preliminary hearings take place. This obviates some of the need for extended conversation required by private lawyers who have no background on cases at hand. Two items in Table II, although not statistically significant, suggest a possible advantage enjoyed by clients of private lawyers. One is incidental expenditures to develop defenses (for example, for transcripts, depositions, etc.); but this difference might be due to the large number of Legal Aid cases (56) in which money was spent but lawyers were ignorant of the exact amounts. The other factor is time spent on legal research; one conceivable explanation for this (other than the possibility that private lawyers are more thorough) is that Legal Aid lawyers have mastered more of the nuances of law as a result of handling more cases of a particular kind, reducing the necessity of examining treatises, statute books, and court opinions. The one area where Legal Aid lawyers may be doing more (although again the statistical test is negative) is investigation of defendants' life circumstances for the purpose of obtaining release from jail on bail or recognizance. However, the additional fifty percent of time which they spend on the average case may reflect the fact that so many of their clients are still incarcerated after they are arraigned and assigned to Legal 17. Studies of the jury show that juries stick quite closely to matters of law and evidence in deciding cases. For example, see Rita Simon, The Juiry and the Defense of Insanity (Boston: Little. Brown, 1967).

11 224 Impact of "Gideon" Table III Pretrial Preparation of Criminal Defenses by Private and Legal Aid Lawyersa LEGAL AID CASES PRIVATE CASES t p Average time (in hours) spent on initial interviews Average number of sessions with defendants prior to trial Average time (in hours) spent on bail-related investigations of defendants' lives Average time (in hours) spent on legal research Average time (in hours) spent on factual research Average number of persons interviewed by lawyer in addition to prosecutor and defendant Average amount of funds (in dollars) expended for defense.72 (116) 1.55 (100) 6.00 p <.001 (sig.) 7.3 (115) 7.8 (93).50 p> (110) 1.14 (65) 1.24 p> (115) 3.67 (98) 1.88 p > (111) 6.23 (98).30 p> (116) 3.8 (95).74 p >.20 $ (59) $ (98) 1.16 p >.20 a The number of cases for each item is listed in parentheses. Since all missing data are excluded from the table, n differs for each factor. Aid lawyers working in the Supreme Court, whereas the private lawyers in the study accepted many cases in which defendants had already been released from custody. Since the latter cases obviously entailed no probing of the defendants' background for bail purposes, the overall average time spent on this task per case was lower. Mastering the factual dimensions of a case is essential in conducting trials and engaging in plea bargining. Three important activities that are usually necessary to uncover the facts are ample discussions with defendants, independent research on the events and people in question, and

12 James P. Levine 225 interviews with witnesses or others who are in some way privy to the case. In all of these regards, the efforts of Legal Aid lawyers matched those of the private attorneys. Whether these searches for facts were equally meticulous or fruitful cannot be ascertained, but there is no gainsaying the observation that genuine attempts were definitely made to gather evidence pursuant to the preparation of indigents' cases. Table iv supports this proposition. Both kinds of attorneys contended that they developed close relationships with the majority of the defendants they represented and acquired a high level of understanding of most cases. To the extent that we can believe their lawyers, poor defendants charged with serious crimes were not treated like impersonal cogs in a mechanical judicial assembly line. Instead, their cases received every bit as much individual attention as those handled privately. Money did not buy greater involvement and intimacy. Table IV Attorney Familiarity with Typical Defendantsa LEGAL AID LAWYERS PRIVATE LAWYERS Intimate 30.6% 43.8% Very familiar Somewhat familiarl % 100.0% Number of cases Chi-square = 4.311; p >.10 a The question was worded as follows: "In your opinion, on the average, how familiar do you get with the defendant and the facts and law of his case?" 1) This category includes two separate responses: "reasonably familiar" and "not too familiar." They were collapsed together so that there would be sufficient entries in each cell to permit a chi-square test of significance. This, however, does not mean that defendants shared this closeness or perceived much empathy from their lawyers. Nothing in the above data in any way implies that the concern of lawyers was adequately conveyed to their clients or that hard work of Legal Aid lawyers was acknowledged and appreciated. But the findings do suggest that the latter act as diligently as private counsel in preparing cases; the indigent are not forgotten by their state-provided lawyers as they await trial. The Choice of Pleas. Notwithstanding the outwardly similar pre-trial activities of private and public defense lawyers on behalf of their clients,

13 226 Impact of "Gideon" Legal Aid defendants chose to plead guilty and forego trial almost twice as often as those who retained counsel. As Table v reveals, almost twothirds of those represented by Legal Aid accepted pleas of guilty while barely one-third of those with paid attorneys plead guilty.18 This significant difference remains when the seriousness of the charges is held constant,19 so we can reject the hypotheses that Legal Aid clients engaged in plea bargaining more regularly only because they faced stiffer penalties if found guilty or anticipated hostile jury reactions because the crimes were so outrageous. In fact, they pled guilty more often when they were implicated in lesser crimes. This finding squares with many other studies of appointed counsel which rather consistently show that indigent clients are more disposed to negotiate with prosecutors and avoid jury trials than defendants with re- Table V Defendants' Choice of Pleasa MOST SERIOUS LESS SERIOUS ALL CASES CASES b CASES c Legal Legal Legal Aid Private Aid Private Aid Private Lawyer Lawyer Lawyer Lawyer Lawyer Lawyer Defendant plead guiltya 63.0% 36.5% 63.6% 26.5% 62.5% 41.9% Defendant went to trial %.% 100.0% % % 100.0% 100.0% Number of cases Chi-square ; p<.01 (sig.) ; p<.01 (sig.) 4.983;p<.05 (sig.) a The table excludes all cases pending at the time of the survey. b This category includes only homicide, rape, robbery, and aggravated assault. c This category includes all cases except those included among the most serious crimes. d This category includes all pleas of guilty (to original or reduced charges) made at any time prior to a trial verdict. 18. One reason that the percentage of Legal Aid cases going to trial is higher than might be expected is that 80 percent of those arrested for felonies in Brooklyn are disposed of in the lower criminal court where charges are dismissed or reduced to misdemeanors. New York Times, February 11, 1975, p Only two categories of crimes are used to control for seriousness due to the limited size of the sample. Additional breadowns were unfeasible because the number of cases in some categories would be too few to allow for statistical comparison.

14 James P. Levine 227 tained counsel.20 Clearly, provision of counsel as mandated by Gideon is not assuring that poor defendants receive their day in court. The lofty goal about which Justice Black opined in Gideon, assuring "fair trials before impartial tribunals in which every defendant stands equal before the law," 21 cannot be reached if there are no trials at all. A major factor accounting for this phenomenon may well be indigigents' distrust of their assigned lawyers. Other studies have shown that it is a common belief among poor defendants that lawyers provided for them by the state are either indifferent or incompetent or both; almost all indigents would prefer to hire their own lawyers.22 Because this lack of confidence apparently infects the entire lawyer-client relationship, even good faith efforts by Legal Aid lawyers to seek full-fledged trials which might totally exonerate their clients may be received skeptically. This is suggested by Table vi which shows that defendants represented by Legal Aid regularly reject their lawyers' advice that they go to trial. Legal Aid lawyers were eager to defend their clients' innocence and in only one-third of all cases actually suggested pleas of guilty-somewhat less frequently than did private attorneys. But whereas defendants with private counsel responded positively to their lawyers and went to trial in all but two out of fifty-two cases where such a course was recommended, the opposite reaction occurred in the majority of cases in which Legal Aid attorneys urged defendants to stand trial. This reluctance to maintain a plea of innocence no doubt indicates more than distrust of Legal Aid lawyers. The fact that many more publicly represented defendants have to endure the hardships and anxiety of pre-trial incarceration no doubt discourages them from holding out for trials;23 not only do they want to put a quick end to the whole onerous ordeal, but they probably understand that they are quite handicapped in mounting a defense while they are in jail, thus increasing their chances of conviction.24 Other factors accounting for the differential rates of plea 20. Dallin Oaks and Warren Lehman, A Criminal Justice System and the Indigent: A Stuldy of Chicago and Cook County (Chicago: University of Chicago Press, 1968), pp ; Nagel, "Effects of Alternative Types of Counsel in Criminal Procedure Treatment," p. 415; Silverstein, pp ; Constantine Vasiliadis, "The Allegheny County Public Defender Office: A Study," University of Pittsburgh Law Review (Summer, 1971), pp Gideon v. Wainwright, 372 U.S. 335, 338 (1963). 22. Casper, chap Nagel, "Effects of Alternative Types of Counsel on Criminal Procedure Treatment," p. 415; Taylor et al., "An Analysis of Defense Counsel in the Processing of Felony Defendants in Denver, Colorado," pp. 15, Charles Ayres, Anne Rankin, and Herbert Sturtz, "The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole," New York University

15 228 Impact of "Gideon" Table VI The Nature of Attorney-Client Communicationsa LEGAL AID PRIVATE CHI- LAWYERS LAWYERS SQUARE p Percentage of defendants advised by attorneys to plead guilty Percentage of defendants professing innocence to their attorneys 34.5% (113) 67.0% (115) 40.8% (98) 60.0% (95).890 p > p >.20 Percentage of guilty pleas in cases where defendant professed innocence to attorneys 42.7% (75) 17.9% (56) (sig.) p <.001 Percentage of guilty pleas in cases where lawyers advised going to trial 56.3% (64) 3.8% (52) (sig.) p <.001 a The table excludes all cases pending at the time of the study. The total number of cases are in parentheses; cases with missing data are omitted. bargaining not investigated in this study may be the prior criminal records of defendants,25 the amount of incriminating evidence against them, defendants' beliefs about their own unpersuasiveness in court (especially if they are poor or non-white), and the attractiveness of deals offered by prosecutors. Nevertheless, it is no doubt suspected by many that their Legal Aid Law Review, 34 (1963), 83-85; "The Unconstitutionality of Bail: Bellamy v. The Judges of New York City," Criminal Law Bulletin, 8 (July-August, 1972), p Also, a recent class-action suit challenging the constitutionality of the money bail system includes an elaborate statistical study with the following conclusions: "Pretrial detention itself causes the defendant to be convicted more often and to be sentenced more severely than the released." New York Times, October 22, 1974, p "The Unconstitutionality of Bail," p. 467.

16 James P. Levine 229 lawyers lack the skill, experience, and commitment to win in court so it is more sensible to cooperate with the district attorney in exchange for a lighter sentence. Adding to defendants' skepticism may be their recognition that because some lawyers are overly anxious to conduct trials in order to gain experience and add some drama to their lives, they advocate trials when negotiated pleas would actually be more in their clients' interest.26 What defendants and their lawyers may not realize is that the agreements made with prosecutors may be less beneficial than they appear because later parole boards normally take into account the degree of charge reduction in determining what proportion of the prison sentence must be served; "bargain justice" is not that great a bargain.27 All told, a respect for the purported realities of the marketplace may be operating. The poor assume that you cannot get something for nothing, casting doubt on the capacity of their freely-provided lawyers to deliver the goods. Contrariwise, paying clients may believe that money will purchase an effective defense and lower the risk inherent in all trials. The Conduct of Trials. A perusal of Table vii suggests that poor defendants are mistaken in their sweeping cynicism about the adequacy of trials conducted by Legal Aid lawyers. The data characterizing the trial practices of these lawyers suggests that they are performing in a professional and responsible manner. Their clients, in choosing to plead guilty so regularly, are depriving themselves of the potential for a reasonably vigorous defense. The public lawyers actually seem to be somewhat more thorough than their private counterparts in attempting to select a favorable jury through peremptory challenges and voir dire interrogations. Also, Legal Aid lawyers are equally aggressive in making formal motions challenging the admissability of evidence or the legality of procedures. In only two aspects of the trial do private lawyers appear more active: placing witnesses on the stand and spending time on summation. The extra testimony generated on behalf of paying clients may indeed be instrumental in undermining proof offered by the prosecutor, but the differences between the two types of lawyers in these matters is not statistically significant and may have resulted from chance alone. As to the lengthier closing arguments of private lawyers, these may well be developed more to impress clients and the public rather than to sway the jury since some studies of the jury suggest that the evidence and testimony 26. Silverstein, pp H. Joo Shin, "Do Lesser Pleas Pay: Accommodations in the Sentencing and Parole Process," Journal of Criminal Justice, 1 (1973), pp

17 230 Impact of "Gideon" Table VII Trial Practices of Legal Aid and Private Criminal Defense Lawyersa LEGAL AID PRIVATE LAWYERS LAWYERS t p Average number of peremptory challenges made in selection of jury Average time (in hours) spent on voir dire questioning during selection of jury Average number of challenges for cause attempted in selection of jury Average number of defense witnesses put on stand during trial (excluding defendant) Average number of witnesses put on stand during trial Average number of formal motions made during trial Average time (in minutes) spent on final summation 11.2 (33) 10.5 (39).73 p> (33) 5.8 (45) 2.37 p <.05 (sig.) 3.4(31) 1.6(45) 1.75 p > (34) 4.4(51) 1.78 p >.05.1 (35).2 (51).92 p> (31) 4.2(46).11 p> (33) 60.6 (45) 4.75 p <.001 (sig.) a The number of trials for which information was available is listed in parentheses; all missing data is excluded from the table. that are introduced have greater impact than the quality of the lawyers' personal delivery Harry Kalven and Hans Zeisel, The American Jury (Boston: Little Brown, 1966), chap. 28. See also Sarah McCabe and Robert Purves, The Jury at Work: A

18 James P. Levine 231 To be sure, the summary data in Table VII fails to capture the flair, rigor, or enthusiasm which may distinguish a forceful defense from a mediocre one. These attributes (which defy quantitative measurement) are no doubt of some importance, but modern imagery about the heroics of the "super-lawyer" may well have caused us to exaggerate the significance of courtroom virtuosity. The careful use of standard techniques probably suffices at most trials, and our survey shows that Legal Aid lawyers seem to be performing the necessary chores conscientiously.2" These trials are by all means adversary processes, and the interests of poor defendants are being protected. Outcome of Trials. The true measure of a trial lawyer's professional success is not his demeanor, style, brilliance, or even zeal; it is his ability to win cases. The ultimate test of competence is courtroom victories, and Table vmi demonstrates that Legal Aid lawyers have compiled a Table VIII Outcomes of Criminal Trials Conducted by Legal Aid and Private Defense Lawyersa LEGAL AID LAWYERS PRIVATE LAWYERS Convictions 35.1% 37.7% Acquittals Dismissals Hung Juries % 99.9% Number of cases Chi-square =.086; p >.70 (not sig.) al A conviction is indicated if the defendant was convicted on any charges against him regardless of whether some or most charges resulted in dismissal or acquittal. record of favorable verdicts that rivals the accomplishments of private practioners. The public lawyers manage to absolve defendants completely, through acquittal or dismissal, in 52 percent of all cases tried Study of a Series of Jury Trials in which the Defendant was Acquitted (Oxford: Oxford University Penal Research Unit, 1972). 29. This squares with the conclusion reached by Kalven and Zeisel from their survey of judges presiding over 3576 trials. "All of the data converge on the benign conclusion that the representation of the poor criminal defendant, once the case goes to trial, is better than might have been expected." Kalven and Zeisel, p. 358.

19 232 Impact of "Gideon" which is almost identical to the "batting average" of private lawyers. This achievement is especially impressive since it is commonly assumed that the lower-income blue-collar defendants normally handled by Legal Aid are less sympathetic and credible than the more affluent represented by private lawyers. This similarity in dispositions emerges even when the seriousness of the crime is held constant as is done in Table ix. Legal Aid lawyers make a good showing even when dealing with those charged with the most appalling offenses, where it might be expected that the jury would be less understanding. This demonstration of Legal Aid accomplishments squares with the results of other studies comparing trial outcomes; in both Denver and Chicago the public defender fared as well in trials as retained counsel.30 Whether this equality was present at the sentencing stage is another important outcome to be investigated in comparing results, but it is arguable that lawyers play a diminished role in these proceedings since the Probation Department which reports on defendants' backgrounds provides the critical input. Table IX Outcomes of Criminal Trials Controlled for Seriousness of Crimesa MOST SERIOUS CRIMES LESS SERIOUS CRIMES Legal Aid Private Legal Aid Private Lawyers Lawyers Lawyers Lawyers Conviction 50.0% 44.0% 23.8% 33.3% Acquittal, Dismissal or Hung Juryb % 100.0% 100.0% 100.0% Number of cases Chi-square.141; p > ; p>.30 a See Table vi for a definition of most serious and less serious crimes. b Acquittals, dismissals, and hung juries are lumped together so that there would be enough cases in each "cell" to permit statistical comparisons to be made. An equally impressive aspect of Tables viii and Ix is the high level of success achieved by all defense lawyers. At the trial stage the odds of 30. Taylor, et al., "An Analysis of Defense Counsel in the Processing of Felony Defendants in Denver, Colorado," p. 20; Oaks and Lehman, p. 160.

20 James P. Levine 233 escaping conviction were almost two to one! This is a far cry from the common notion of helpless defendants methodically gunned down by an omnipotent prosecutorial army.31 Of course, the cases brought to trial are hardly a random sample of all criminal actions. Competent attorneys will encourage defendants to go to trial when they expect victory and recommend plea bargaining where defenses seem weak or futile. Since Legal Aid attorneys go to trial less frequently we might expect them to have a higher success ratio since they may be fighting only their strongest cases in which the evidence against defendants is least compelling. Nonetheless, these data do suggest that going to trial is an option for protecting defendants' interests which is being insufficiently utilized by defense attorneys. Juries are apparently quite alert to flaws in the prosecutor's evidence and receptive to defendants' contentions; they are not compliant lackeys of the district attorney. It is instructive that the relative inexperience of Legal Aid attorneys does not prove to be an insurmountable obstacle to effective representation. Simply providing defendants with a genuine "day in court" is a formidable weapon in itself. Exculpatory facts often speak for themselves, but they need a forum in which to be heard. Lawyer-Client Relations. How can we account for the anomaly of Legal Aid clients failing to take sufficient advantage of the talents of their lawyers who handle themselves on a par with private attorneys when conducting trial defenses? Why is there such a discrepancy in the number of cases negotiated by public and private defense lawyers? Part of the answer seems to lie in the nature of the lawyer-client relationship. Notwithstanding the contentions by Legal Aid lawyers that they get to know their clients fairly well (shown in Table iv), the latter may have an altogether different perception of their lawyers' role. Legal Aid attorneys may be held in ill repute, with their efforts neither understood nor appreciated. The very first encounters between defendants and Legal Aid lawyers working in Supreme Court are likely to sow the seeds of distrust. It is to be recalled from Table III that the initial interview was less than fortyfive minutes, less than half the time spent by private attorneys. While this shorter session may pose no handicap to the Legal Aid attorney 31. Thus these data contradict Jacob's assertion about jury trials: "The prosecutor usually wins, because he seeks to prevent a trial through compromise unless he feels fairly certain that he can win." Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process, 2nd ed. (Boston: Little, Brown, 1972), pp

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