Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes

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1 Slppng Away from Justce: The Effect of Attorney Skll on Tral Outcomes I. INTRODUCTION II. PREVIOUS WORK ON THE IMPACT OF ATTORNEY SKILL III. GOING BEYOND ABRAMS AND YOON S ANALYSIS: A NEW DATA SET TABLE I. DATA SUMMARY STATISTICS TABLE II. CASE CHARACTERISTICS IV. MODELING THE ATTORNEY SKILL EFFECT V. RESULTS TABLE III. LINEAR PROBABILITY MODEL OF CONVICTION TABLE IV. PROBIT MODEL OF CONVICTION TABLE V. PROBIT MODEL OF CONVICTION (MARGINAL EFFECTS) TABLE VI. LINEAR PROBABILITY MODEL OF SENTENCING TABLE VII. ORDERED PROBIT MODEL OF SENTENCING VI. DISCUSSION AND IMPLICATIONS VII. CONCLUSION I. INTRODUCTION It s dsgustng what he dd, t s dsgustng... hs Dream Team Scheme Team maybe s more accurate Davd Margolck, Smpson Tells Why He Declned To Testfy as Two Sdes Rest Case, N.Y. TIMES, Sept. 23, 1995, at A1. 267

2 268 VANDERBILT LAW REVIEW [Vol. 63:1:267 Fred Goldman blamed the defense attorneys when a Los Angeles jury found O.J. Smpson not gulty of murderng hs son, Ron Goldman, and Ncole Brown Smpson on October 3, Yet Goldman was not the only one who blamed the defense attorneys for the acquttal; much of the meda agreed that Smpson was gulty and had escaped hs rghtful punshment. As one New York Tmes reporter lamented, To watch Mr. Smpson slp away from justce... was an nfuratng sght. 2 People who beleved n Smpson s gult cted Johnne Cochran s decson to play the race card 3 and hs clever catch phrases lke f t doesn t ft, you must acqut. 4 Others blamed the prosecutng attorneys. On the day after the verdct, author Scott Turow descrbed the prosecutors as doomed from the start for ther use of ugly tactcs that... aroused suspcons about the crmnal justce system among members of racal mnortes n Los Angeles and elsewhere. 5 Yet O.J. Smpson s not the only defendant who accordng to popular opnon has slpped away from justce because of hs attorneys skll. A jury acqutted the late Mchael Jackson of hs chld molestaton charges n That same year, actor Robert Blake escaped charges of murderng hs wfe, Bonny Lee Bakley. 7 And just two years earler, a jury acqutted New York mllonare Robert Durst of murderng hs neghbor, Morrs Black. 8 All three men had very expensve, well-known defense attorneys, and all three men faced smlar accusatons of slppng away from justce n the press after ther acquttals. More recently, Mary Wnkler, a preacher s wfe from Selmer, Tennessee who klled her husband and fled wth her chldren to the Alabama coast, endured the same scrutny from the popular 2. Frank Rch, Journal: The L.A. Shock Treatment, N.Y. TIMES, Oct. 4, 1995, at A Seth Mydans, Not Gulty: The Lawyers: In the Joy of Vctory, Defense Team s n Dscord, N.Y. TIMES, Oct. 4, 1995, at A Davd Margolck, Smpson s Lawyer Tells Jury That Evdence Doesn t Ft, N.Y. TIMES, Sept. 28, 1995, at A1. 5. Scott Turow, Smpson Prosecutors Pay for Ther Blunders, N.Y. TIMES, Oct. 4, 1995, at A See Paul Dale Roberts et al., Letters to the Edtor, Prosecutors Fumble Another Celebrty Case, USA TODAY, June 15, 2005, at A10 (crtczng the verdct and dscussng the prosecutors mstakes n the Mchael Jackson case). 7. See Greg Rslng, Blake Not Gulty of Wfe s Murder: Prosecuton Couldn t Put the Gun n hs Hand, Jury Foreman Says, CHI. SUN-TIMES, Mar. 17, 2005, at 3 (detalng the shortcomngs of the prosecuton n the Robert Blake case). 8. See Gary Cartwrght, The Verdct: The Safe Money Had Robert Durst Gettng Convcted of Murder n Seconds Flat. How on Earth Dd He Get Off? Two Words: Dck DeGuern, TEXAS MONTHLY, Feb. 2004, at 54, 56 (dscussng the role of Dck DeGuern n Robert Durst s acquttal).

3 2010] SLIPPING AWAY FROM JUSTICE 269 press durng her tral. Despte beng accused of frst-degree murder, her Dream Team of defense attorneys made murder no longer an ssue. 9 Instead, the jury convcted Wnkler of voluntary manslaughter, and the judge sentenced her to only sxty-seven days n prson. As one journalst sarcastcally noted after the verdct, Mary Wnkler s defense lawyers dd just what they had to do to convnce a jury not to convct her of murder, even though she shot her sleepng preacher husband n the back wth a shotgun. 10 Even Wnkler s own defense attorney sad after tral that the verdct was most probably just. 11 Clearly, much of the meda beleves that an attorney can decde a case. Get a good enough attorney, the story goes, and you can get off on anythng. Yet the belef n the power of a good attorney extends far beyond popular opnon and all the way to the Supreme Court. In many opnons, Justces have expressed concern about the consequences of weak representaton. 12 But just how mportant s a good attorney? Can a skllful attorney actually change the verdct? More mportantly, n crmnal trals, can a good defense attorney let gulty people go free, or can a good prosecutor send nnocent people to jal? Every day, as more hghprofle defendants fnd themselves n court, the anecdotal evdence of ths attorney skll effect contnues to mount. Yet no one has decsvely answered these questons not only for hgh-profle defendants, but for the everyday defendant as well. Ths Note wll argue that a skllful defense attorney s not as powerful as popular opnon would lead us to beleve. Here, I defne skll as the qualtes that an attorney brngs to the courtroom ndependent of hs case s strength, such as rhetorcal abltes, tactcal strateges, and knowledge of the law. Regardless of ther skll, 9. Lawrence Buser, Dream Team Took Jury Into Nghtmare, Emerged Wth Murder No Longer an Issue, COMMERCIAL APPEAL, Apr. 21, 2007, at A Id. 11. Wfe Gulty of Manslaughter n Mnster s Kllng, N.Y. TIMES, Apr. 20, 2007, at A17 (emphass added). 12. See, e.g., Strckland v. Washngton, 466 U.S. 668, 710 (1984) (Marshall, J., dssentng) (notng that the dffcultes of estmatng prejudce after the fact are exacerbated by the possblty that evdence of njury to the defendant may be mssng from the record precsely because of the ncompetence of defense counsel ); McMann v. Rchardson, 397 U.S. 759, 771 (1970) (holdng that f the rght to counsel guaranteed by the Consttuton s to serve ts purpose, defendants cannot be left to the merces of ncompetent counsel, and that judges should strve to mantan proper standards of performance by attorneys who are representng defendants n crmnal cases n ther courts ); Powell v. Alabama, 287 U.S. 45, (1932) (dscussng the consequences of nadequate access to counsel).

4 270 VANDERBILT LAW REVIEW [Vol. 63:1:267 crmnal defense attorneys do not have a statstcally sgnfcant effect on the verdct or sentencng outcomes. Prosecutng attorneys, on the other hand, can nfluence tral outcomes. A jury s more lkely to convct a defendant when the prosecutor has a hgh level of skll. Although mportant for many reasons, prosecutoral skll s partcularly crtcal snce the prosecuton has the burden of proof n a crmnal tral. Ths outcome that emphaszes the mpact of prosecutoral skll runnng so contrary to our everyday belefs suggests that we have been focusng on the wrong sde. Just lke Fred Goldman, we are quck to blame the defense attorneys when we thnk a hgh-profle defendant has slpped away from justce. For more lowprofle defendants, we are overly preoccuped wth the adequacy of, and the dspartes n, defense attorneys. Yet we should really be concerned about the dspartes n prosecutors. To demonstrate the mportance of prosecutng attorney skll, Part II of ths Note frst consders prevous lterature from law and other dscplnes on the mpact of attorney skll. Part III dscusses the data set used to conduct ths study, and Part IV outlnes the model of the attorney skll effect. Part V gves the results of the data analyss and demonstrates the effect of prosecutng attorney skll on tral outcomes and the lack of effect of defense attorney skll on tral outcomes. Part VI argues that publc attenton should shft away from defense attorneys and onto prosecutors. If we expect defendants to receve a far tral, we need to devote more resources to ensurng that prosecutors are well qualfed and adequately traned to elmnate the dspartes between them. Part VII concludes by relatng these results to the attorney skll effect so often dscussed n the popular press. II. PREVIOUS WORK ON THE IMPACT OF ATTORNEY SKILL Scholars from many dscplnes have questoned the mpact of attorney skll for years. Ths Part wll chronologcally explore the evoluton of ther efforts n the felds of law, psychology, and economcs. For scholars n every feld, two fundamental problems have stood n the way of explorng the attorney skll effect. Frst, and most obvously, measures of attorney skll are very dffcult to quantfy and even more dffcult to obtan. Unlke quarterbacks, practcng attorneys do not have ratngs by whch to evaluate ther seasons of tral work. Second, even though we can easly observe that trends n tral outcomes dffer between attorneys, t s almost mpossble to attrbute these dfferences solely to the attorney s skll. Varables such as locaton and practce area, as well as personal characterstcs lke

5 2010] SLIPPING AWAY FROM JUSTICE 271 race and gender, could feasbly create systematc dfferences n attorney tral outcomes. 13 Of all these other varables, perhaps the most sgnfcant s a process commonly referred to as attorney matchng, where attorneys par wth clents based on the strength of ther case. 14 Due to attorney matchng, an attorney may have a hgh tral success rate that has nothng to do wth hs skll. For example, a famous defense attorney may succeed n gettng hs clents acqutted more frequently. But ths attorney s hgh success rate may be smply due to the fact that the attorney only takes cases that he s lkely to wn. Smlarly, clents may spend more money on hgh-prced attorneys when they are nnocent n order to ensure ther acquttal and publc vndcaton. On the other sde of the crmnal justce system, more experenced prosecutors may be assgned to weaker cases n order to ncrease the probablty that the accused crmnal wll be convcted and brought to justce. 15 Crmnal tral outcomes and the attorneys workng on each sde are easly observable, but wthout more nformaton about each case such as the type of case, strength of the case, defendant characterstcs, and vctm characterstcs researchers cannot separate out the effects of each attorney s skll from the effects of attorney matchng. 16 Despte these data problems, scholars have attempted to untangle the attorney skll effect 17 because the queston of attorney skll goes to the very heart of our crmnal justce system. 18 The Sxth 13. For example, a defense attorney may practce n a locaton wth hghly empathetc jures, leadng to systemcally better results for ths attorney than a smlar attorney practcng n a less defense-frendly jursdcton. Smlarly whether far or not the race or gender of a defense attorney could plausbly affect tral outcomes. Jures n areas of the country hghly senstzed to race may take greater note of the race of all attorneys nvolved. 14. See Davd S. Abrams & Albert H. Yoon, The Luck of the Draw: Usng Random Case Assgnment to Investgate Attorney Ablty, 74 U. CHI. L. REV. 1145, (dscussng the problem of attorney matchng n evaluatng the effect of attorney skll). 15. See d. at 1146 (explanng that the nonrandom parng of attorney and clent n most cases makes t dffcult, f not mpossble, to dstngush between attorney ablty and case selecton ). 16. See d. at 1147 (notng that case outcomes may reflect the matchng process between clents and attorneys as much as the ablty of the attorneys who represent ther clents ). 17. Here, and throughout the paper, the attorney skll effect smply refers to the effect of attorney skll on tral outcomes. Attorney skll s defned n Part I as the qualtes that an attorney brngs to the courtroom ndependent of hs case s strength, such as rhetorcal abltes, tactcal strateges, and knowledge of the law. 18. E.g., Abrams & Yoon, supra note 14, at (nvestgatng whether systematc dfferences n defense attorney ablty exst and ther effects on tral outcome); Floyd Feeney & Patrck G. Jackson, Publc Defenders, Assgned Counsel, Retaned Counsel: Does the Type of

6 272 VANDERBILT LAW REVIEW [Vol. 63:1:267 Amendment s guarantee of the rght to counsel 19 not only requres courts to allow defendants adequate access to counsel 20 but also commands them to provde ndgent defendants wth counsel. 21 More mportantly, the Sxth Amendment requres that counsel do more than just appear to represent a clent. In Unted States v. Cronc, the U.S. Supreme Court held that f counsel entrely fals to subject the prosecuton s case to meanngful adversaral testng, then there has been a denal of Sxth Amendment rghts that makes the adversary process tself presumptvely unrelable. 22 Yet long before the Cronc decson, the Supreme Court ndcated that representaton by a competent attorney s necessary to the proper functonng of our crmnal justce system where the accused are nnocent untl proven gulty, the nnocent are acqutted, and the gulty are brought to justce. 23 As Justce George Sutherland reasoned n hs famous opnon n Powell v. Alabama: The rght to be heard would be, n many cases, of lttle aval f t dd not comprehend the rght to be heard by counsel. Even the ntellgent and educated layman has small and sometmes no skll n the scence of law.... He requres the gudng hand of counsel at every step n the proceedngs aganst hm. Wthout t, though he be not gulty, he faces the danger of convcton because he does not know how to establsh hs nnocence. If that be true of men of ntellgence, how much more true s t of the gnorant and llterate, or those of feeble ntellect. 24 Implct n Sutherland s dscusson of the rght to counsel was hs belef n the rght to effectve and skllful counsel. After all, an ncompetent attorney would not be much of a gudng hand. 25 Accordng to Sutherland, an effectve and skllful attorney could actually change the tral outcome by removng the danger of convcton of an nnocent person. 26 Crmnal Defense Counsel Matter?, 22 RUTGERS L.J. 361, (1991) (explorng the dfferences between dfferent types of defense attorneys); Danel Lnz et al., Attorney Communcaton and Impresson Makng n the Courtroom: Vews From Off the Bench, 10 L. & HUM. BEHAV. 281, (1986) (desgnng an experment to test the effect of prosecuton and defense attorney skll on tral outcomes). 19. U.S. CONST. amend. VI. 20. Powell v. Alabama, 287 U.S. 45, (1932). 21. Gdeon v. Wanwrght, 372 U.S. 335, (1963) U.S. 648, 659 (1984). 23. See, e.g., McMann v. Rchardson, 397 U.S. 759, 771 (1970) (argung that the Sxth Amendment rght to counsel ncludes a rght to competent counsel); Powell, 287 U.S. at (dscussng the consequences of nadequate access to counsel). 24. Powell, 287 U.S. at Id. at Id.

7 2010] SLIPPING AWAY FROM JUSTICE 273 Concerns about the attorney skll effect predated even Justce Sutherland, however, and studes of attorney skll began as early as Many of the earlest studes dd not use controls: the authors smply compared tral outcomes between retaned and apponted defense attorneys and drew nferences about ther relatve skll levels. 28 Because these studes were rudmentary at best unable to control for any attorney-matchng problems, strength of the underlyng case, and even sometmes the type of case ther results often contradcted each other. In 1991, Floyd Feeney and Patrck G. Jackson revewed the twelve prevous studes that had compared the tral outcomes acheved by publc defenders, court-apponted counsel, and prvately retaned counsel. Many of the studes they revewed reached opposte results, and the authors concluded that [t]he best research to date ndcates that type of defense counsel... s not an mportant determnant of case outcomes. 29 As a result, the authors endorsed the explanaton of Dalln Oaks and Warren Lehman s 1968 study, whch concluded that crmnal attorneys were too heterogeneous to analyze as a group: The ranks of prvate lawyers dong crmnal work nclude the few top men n the cty, baffled famly lawyers whose clents have fallen nto the hands of the polce, hacks who fnd ther clents n the halls of the Crmnal Courts buldng, corporaton lawyers whose clents ask them to perform the work as a servce and young men on the way up who mx crmnal and cvl practce In other words, the small sample sze and the large varaton n personal characterstcs drove the repeatedly nconclusve results about the attorney skll effect. 31 Around the tme of Feeney and Jackson s artcle, scholars from outsde the legal feld began to explore the attorney skll effect. In 27. See REGINALD HERBER SMITH, JUSTICE AND THE POOR 123 (1919) (fndng that retaned counsel had hgher acquttal rates than publc defenders, but publc defenders had better probaton outcomes). 28. See, e.g., PETER W. GREENWOOD ET AL., PROSECUTION OF ADULT FELONY DEFENDANTS IN LOS ANGELES COUNTY: A POLICY PERSPECTIVE (1973), avalable at (fndng that assgned counsel had better acquttal rates, but publc defenders had better sentencng outcomes); DALLIN H. OAKS & WARREN LEHMAN, A CRIMINAL JUSTICE SYSTEM AND THE INDIGENT: A STUDY OF CHICAGO AND COOK COUNTY (1968) (fndng that prvate counsel and publcly apponted counsel had smlar tral outcomes); LEE SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL CASES IN AMERICAN STATE COURTS (1965) (fndng retaned counsel had better tral outcomes than apponted counsel). 29. Feeney & Jackson, supra note 18, at Id. at 409 (quotng Dalln H. Oaks & Warren Lehman, Lawyers for the Poor, n THE SCALES OF JUSTICE (Abraham S. Blumberg ed., 1970)). 31. Id.

8 274 VANDERBILT LAW REVIEW [Vol. 63:1: , psychologsts Danel Lnz, Steven Penrod, and Elane McDonald recognzed the scarcty of good data to test the effect of attorney skll on tral outcomes, 32 so they desgned an experment to create ther own data. 33 The authors solcted undergraduates to observe ffty trals. 34 After the trals ended, the undergraduates completed a survey ratng each attorney s courtroom behavors, such as artculateness, enthusasm, and legal nformatveness. 35 The authors also contacted both the jurors and the attorneys and asked them to fll out a smlar questonnare ratng each attorney s performance. 36 The undergraduates systematcally gave hgher marks to the prosecutors. 37 Moreover, prosecutors self-assessments closely matched the jurors ratngs, whle defense attorneys vastly overrated ther courtroom sklls. 38 None of these skll ratngs, however, had a statstcally sgnfcant effect on tral outcome. 39 Lnz, Penrod, and McDonald concluded that small sample sze mght be to blame for ther nconclusve results. 40 Due to lack of data, twenteth-century scholars had lttle luck determnng the effect of attorney skll on tral outcome. Indeed, ths data problem lmted scholars ablty to answer the larger queston: what outsde factors, other than gult or nnocence, affect the outcome of a crmnal tral? Wthn the last few years, however, some economsts have obtaned new data that have at last allowed them to examne the outsde determnants of crmnal tral outcome. For example, Rchard Boylan studed the salares of U.S. Attorneys from 1969 to 1999, fndng that hgher-pad U.S. Attorneys had hgher convcton rates and generated longer prson sentences. 41 In a later study, Boylan demonstrated that federal prosecutors who successfully sought longer prson sentences were more lkely to become a federal judge or a partner n large law frm after leavng the U.S. Attorney s 32. Lnz et al., supra note 18, at Id. at Id. at Id. at Id. 37. Id. at Id. at Id. at Id. at (suggestng that future studes should gather ratngs on attorney performance from judges and jures). 41. Rchard T. Boylan, Salares, Turnover, and Performance n the Federal Crmnal Justce System, 47 J.L. & ECON. 75, (2004).

9 2010] SLIPPING AWAY FROM JUSTICE 275 offce. 42 Boylan s results ndcated that, n the courtroom, prosecutors had ncentves to maxmze prson terms nstead of convctons or ndctments. 43 On the other hand, Radha Iyengar studed the two types of court-apponted attorneys for ndgent defendants: publc defenders, who were pad a predetermned salary for all ther cases, and prvate attorneys apponted under the Crmnal Justce Act, 44 who were pad on an hourly bass. 45 Iyengar found that defendants represented by publc defenders were less lkely to be found gulty and receved shorter prson sentences than defendants represented by Crmnal Justce Act attorneys. Although she was not able to control for attorney skll drectly, she was able to control for factors such as the attorneys experence, average caseload, law school qualty, and wages. Iyengar concluded that these outsde factors at least partally explaned the dfferences n courtroom performance. 46 Whle Boylan and Iyengar successfully dentfed some of the outsde nfluences on attorney skll, no one successfully used emprcal methods to determne the drect effects of attorney skll untl In that year, Dan Abrams and Albert Yoon publshed the frst emprcal study evaluatng the effects of attorney skll that systematcally controlled for type of case, the race of the defense attorney, and most mportantly, attorney-matchng effects. 47 Abrams and Yoon collected a large data set of over 11,000 cases from the Clark County Publc Defenders Offce n Nevada. For each case, the data contaned nformaton on the type of charge, whether the case went to tral, the publc defender assgned to the case, how many years of experence the publc defender had, the race of the publc defender, and where the publc defender went to law school. 48 The advantage of ths data set was that n the Clark County Publc Defenders Offce, publc defenders were randomly assgned to cases. 49 Thus, even though Abrams and Yoon could not drectly control for the strength of the case 42. Rchard T. Boylan, What do Prosecutors Maxmze? Evdence from the Careers of U.S. Attorneys, 7 AM. LAW & ECON. REV. 379, (2005). 43. Id. at U.S.C. 3006A(a)(3) (2006). 45. Radha Iyengar, An Analyss of Attorney Performance n the Federal Indgent Defense System 2 5 (Nat l Bureau of Econ. Research, Workng Paper No , 2007), avalable at 46. Id. at Abrams & Yoon, supra note 14, at Id. at Id. at 1149.

10 276 VANDERBILT LAW REVIEW [Vol. 63:1:267 aganst the defendant, case strength dd not create bas n ther analyss because attorneys were randomly assgned to defendants. As a result, Abrams and Yoon were able to control for any attorneymatchng effects that mght bas ther analyss. 50 Although Abrams and Yoon dd not have a drect measure of attorney skll, they dd have data on each attorney s law school, race, and years of experence n the publc defenders offce, whch they used as proxes for each attorney s skll. 51 Usng regresson analyss, the authors found that experence was crucal: clents represented by attorneys who had been n the publc defenders offce for a long tme had better results. 52 On the other hand, the attorney s law school dd not seem to affect the defendant s outcome. 53 Surprsngly, Abrams and Yoon also found an effect of the attorney s race on the defendant s outcome: Hspanc publc defenders systematcally acheved better results for ther clents. The authors suggested that ther exceptonal performance mght be due to the potental language advantage wth ther clents. 54 Abrams and Yoon s paper was groundbreakng n assessng the effect of attorney skll. It was the frst paper that had a large sample, sound emprcal methods, and strong enough data to avod the ptfalls that befell prevous emprcal analyses n ths area. Nonetheless, ther study stll left several pressng questons unresolved. Frst, Abrams and Yoon only assessed the effect of the defense attorney s skll. But what effect dd the prosecutng attorney s skll have on outcomes? Abrams and Yoon could say nothng about the effect of the prosecutng attorney s skll and whether t was more mportant or less mportant than the defense attorney s skll. Moreover, because Abrams and Yoon s analyss only controlled for attorney-matchng effects on the defendant s sde, ther estmates of the effect of the defense attorney s skll could stll have been based. Even though the publc defenders were randomly assgned to the case, prosecutors were not. Prosecutors were lkely assgned based on the strength of the case or even the perceved skll of the defendant s attorney. Second, Abrams and Yoon used only proxes for attorney skll n ther study. Whether an attorney s educaton or years of experence 50. Id. 51. See d. at (dscussng the effect that these attorney characterstcs had on the duraton and probablty of ncarceraton). 52. Id. at Id. 54. Id. at 1175.

11 2010] SLIPPING AWAY FROM JUSTICE 277 have an nfluence on tral outcome s an nterestng queston, but t s a dfferent queston than the effect of actual skll. When we speak of attorney skll, we speak of an attorney s ablty to research, to apply the research to hs clent s case, to nvestgate the facts, to convey these facts n court, to assess the strengths of hs clent s case, and most mportantly, to be persuasve enough that the trer of fact should beleve hs verson of the story. 55 Although these sklls often come wth tme, experence s not perfectly correlated wth skll. It s easy to magne a young attorney who s so persuasve and effectve n court that he gets better-than-average outcomes for hs clents, despte hs modest experence. Conversely, t s easy to magne a hghly experenced attorney who, despte the vast number of cases that he has tred, s nartculate and utterly unpersuasve n court. Thus, although an attorney s years of experence and educatonal background are nterestng and could plausbly be correlated wth actual skll they are not perfect proxes for skll. Thrd, Abrams and Yoon only looked at crmnal trals where the defendant was represented by a publc defender, whch suggests that ther estmate mght also be subject to sample-selecton bas. 56 Because all of the defendants used publc defenders, these defendants were presumably poorer than the average defendant. If poor defendants are accused of dfferent crmes than more affluent defendants, then Abrams and Yoon s data mght oversample certan types of crmes where attorney skll s partcularly effectve. Moreover, Abrams and Yoon s data may oversample low-stakes cases. When a poor defendant s accused of a crme, he can choose ether to use a free publc defender or to attempt to rase money for a prvate attorney. Ths poor defendant s much more lkely to ask hs famly, frends, church, and communty for money to a hre a prvate attorney n a hgh-stakes case. So for example, a defendant may just take a publc defender when, f convcted, he wll only get probaton, but he may pool all hs avalable resources to pay a prvate attorney when the 55. For a concse defnton of attorney skll as the term s used n ths paper, see supra Part I. 56. Sample-selecton bas arses when the avalablty of the data s nfluenced by a selecton process that s related to the value of the dependent varable. Ths selecton process can ntroduce correlaton between the error term and the regressor, whch leads to bas.... JAMES H. STOCK & MARK W. WATSON, INTRODUCTION TO ECONOMETRICS 250 (2003). The classc example of sample selecton bas occurs n a regresson of wages on determnants lke educaton, years of experence, and geographc locaton. Only people who have a job have wages, and the same factors that determne how much money a person makes also determne whether that person gets a job. Id. at 251.

12 278 VANDERBILT LAW REVIEW [Vol. 63:1:267 penalty s jal tme. An oversamplng of low-stakes cases only matters f t somehow bases the estmate of the attorney skll effect. Yet perhaps attorney skll only makes a dfference n these low-stakes cases; f so, then Abrams and Yoon s estmates would be based upward. Thus, whle Abrams and Yoon s estmates are more robust than the estmates of ther predecessors, they reman problematc. III. GOING BEYOND ABRAMS AND YOON S ANALYSIS: A NEW DATA SET Abrams and Yoon s landmark paper was revolutonary n the study of the attorney skll effect, but ts shortcomngs ts falure to study prosecutng attorneys, ts nablty to assess attorney skll drectly, and ts falure to study cases wth prvate defendng attorneys call nto queston both the accuracy and the external valdty 57 of ther estmates. Fortunately, a new data set avods the problems of the Abrams and Yoon paper, allowng us to test the robustness of ther results and to extend ther research: Evaluaton of Hung Jures n Bronx County, New York, Los Angeles County, Calforna, Marcopa County, Arzona, and Washngton, DC, The Natonal Center for State Courts ( NCSC ) orgnally compled these data n order to evaluate the causes of hung jures. 58 The data set contans 320 observatons from non-captal felony jury cases resultng n convcton, acquttal, or hung jury n four stes: the Bronx, Los Angeles, Phoenx, and the Dstrct of Columba. For each case, the court clerk reported case characterstcs and outcomes ncludng the race and gender of vctms and defendants; the length of tral and delberaton process; the sentence; and the number of prosecuton and defense wtnesses, expert wtnesses, and exhbts. These varables serve as mportant controls n ths study; they ndcate the amount of evdence presented by each sde and serve as ndcators of the strength each sde s case. Abrams and Yoon argued that strength-of-case varables were not mportant n ther study 57. External valdty s a term commonly used n econometrcs that ndcates whether the study s robust enough to extrapolate ts results to other stuatons. See d. at (dscussng when an emprcal study s subject to threats of external valdty). 58. PAULA L. HANNAFORD-AGOR ET AL., INTER-UNIVERSITY CONSORTIUM FOR POLITICAL AND SOCIAL RESEARCH, EVALUATION OF HUNG JURIES IN BRONX COUNTY, NEW YORK, LOS ANGELES COUNTY, CALIFORNIA, MARICOPA COUNTY, ARIZONA, AND WASHINGTON, DC, , [herenafter EVALUATION OF HUNG JURIES].

13 2010] SLIPPING AWAY FROM JUSTICE 279 because of the random assgnment of publc defenders. 59 However, snce ths data set actually contans strength of case varables, t allows us to test ther assertons. For each case n ths data set, the court clerk dstrbuted a twopart survey to each juror, attorney, and judge. The frst part was admnstered at the concluson of the tral but before jury delberaton; the second part was admnstered after the verdct. Thus, the cases n ths data set contan each attorney s, juror s, and judge s reacton to the verdct, and ther evaluaton of attorney skll, case complexty, and evdence. Agan, ths data set can go beyond the Abrams and Yoon study, for whle they used proxes for attorney skll lke educaton and years of experence, ther data dd not have a drect measure of attorney skll. Tables I and II gve summary statstcs for the data set. The cases are almost equally dstrbuted among the four stes, wth the fewest observatons comng from Bronx County, New York. The defendant sample s overwhelmngly male and black, whle the vctm sample s more heterogeneous. Approxmately half of the cases resulted n convctons, and the majorty were theft and drug-related crmes. Almost 80 percent of defendants n ths sample were represented by court-apponted attorneys, suggestng that most defendants were ndgent. Nevertheless, prosecutors averaged substantally fewer years of practce and prevous crmnal trals than the defense attorneys. When these cases at last went to tral, the prosecuton tended to put on more evdence than the defense. 59. Abrams & Yoon, supra note 14, at 1149.

14 280 VANDERBILT LAW REVIEW [Vol. 63:1:267 TABLE I. DATA SUMMARY STATISTICS Category Varable Observatons Percent of Total Case Type (n=320) Homcde Rape Robbery/Burglary/Larceny Assault (Non-Sexual) Drug-Related Crme Attempted Murder Weapons Other Tral Outcome (n=320) Convcton Acquttal Hung Jury Sentence (n=142) Less than 1 Year to 5 Years to 10 Years to 20 Years Defendant Characterstcs (n=320) Vctm Characterstcs (n=320) Tral Characterstcs (n=320) Over 20 Years Lfe Male Female Unknown Gender Whte (Non-Hspanc) Hspanc Black Other Non-Whte Unknown Race Male Female Unknown Gender Whte (Non-Hspanc) Hspanc Black Other Non-Whte Unknown Race Jury Sequestered Court-Apponted Defense Attorney Retral Ste of Tral (n=320) Los Angeles, CA Marcopa County, AZ Bronx County, NY Washngton, DC Notes: Evaluaton of Hung Jures n Bronx County, New York, Los Angeles County, Calforna, Marcopa County, Arzona, and Washngton, DC, data come from the Inter-Unversty Consortum for Poltcal and Socal Research.

15 2010] SLIPPING AWAY FROM JUSTICE 281 TABLE II. CASE CHARACTERISTICS Varable Mean Standard Devaton Evdence Prosecuton Wtnesses Prosecuton Expert Wtnesses Prosecuton Exhbts Defense Wtnesses Defense Expert Wtnesses Defense Exhbts Experence Prosecuton Practce Years Prosecuton Prevous Crmnal Trals Defense Practce Years Defense Prevous Crmnal Trals Length of Tral Tral Length n Days Mnutes of Jury Delberaton Attorney Ratngs (1=Not at all skllful to 7=Very skllful) Judge Ratng of Prosecuton Judge Ratng of Defense Defense Ratng of Prosecuton Prosecuton Ratng of Defense Jury Ratng of Prosecuton Jury Ratng of Defense Complexty Ratngs (1=Not at all complex to 7=Very complex) Jury Ratng of Case Complexty Notes: Evaluaton of Hung Jures n Bronx County, New York, Los Angeles County, Calforna, Marcopa County, Arzona, and Washngton, DC, s data come from the Inter- Unversty Consortum for Poltcal and Socal Research. Notably, ths data set contans forty-three cases that resulted n a hung jury. At frst glance, t may appear that the researchers somehow oversampled hung jury cases especally snce the ttle of the data set s Evaluaton of Hung Jures. Yet hung jures are much more common n crmnal trals than most people beleve consderng all twelve jurors must reach the same verdct. In fact, the Natonal Crmnal Justce Reference Servce, a branch of the U.S. Department of Justce that collects data on the crmnal justce system, estmates

16 282 VANDERBILT LAW REVIEW [Vol. 63:1:267 that approxmately 12 percent of trals result n a hung jury matchng almost perfectly wth ths data set s percent. 60 These detaled and unque observatons have been prevously unobtanable, preventng any broad studes of the effect of attorney skll n the courtroom. Accordngly, ths new data set can provde valuable nsght nto the nfluence of attorney skll on the tral outcome of the everyday defendant. IV. MODELING THE ATTORNEY SKILL EFFECT Usng the NCSC data, I begn my analyss wth a basc probt model to estmate the effects of attorney skll on the tral outcome: Pr( convcted 1) [ 0 1 pattyskll 2dattyskll 3 pwtness 4 pewtness 5 pexhbt 6dwtness 7dewtness 8dexhbt 9vfemale 10vblack 11vhsp 12votherrace dfemale dblack dhsp dotherrace crmefe ] In ths model, the dependent varable s the probablty of beng convcted. I model tral outcome n ths manner because, lke acquttal, most defendants consder a hung jury as a vctory. A new tral requres consderable resources, so after a hung jury, the Dstrct Attorney s offce must decde whether to pursue lesser charges or to pursue the case at all. 61 The varables pwtness, pewtness, and pexhbt (the number of prosecuton wtnesses, expert wtnesses, and exhbts, respectvely) control for the strength of the prosecuton s case, whle the varables dwtness, dewtness, and dexhbt (the number of defense wtnesses, expert wtnesses, and exhbts, respectvely) control for the strength of the defense s case. 62 In NAT L CRIMINAL JUSTICE REFERENCE SERV., EMPIRICAL STUDY OF FREQUENCY OF OCCURRENCE, CAUSES, EFFECTS, AND AMOUNT OF TIME CONSUMED BY HUNG JURIES: FINAL REPORT (1975), avalable at Ths study was orgnally publshed n 1975, and so s somewhat old. However, accordng to the researchers who compled EVALUATION OF HUNG JURIES, supra note 58, most current statstcs on hung jures come from studes n the 1960s and 1970s, further motvatng ther project. 61. Recently, a prosecutor s decson whether to pursue a retral has receved a lot of publcty after the second hung jury n a Mam terrorsm case. Sx men are accused of plannng to bomb the Sears Tower n Chcago and the FBI offces n Mam, yet two dfferent jures have been unable to reach a verdct. Curt Anderson, Jury Hts Stalemate n Terrorsm Retral, USA TODAY, Apr. 11, 2008, avalable at 62. Indvdually, measures lke the number of prosecuton wtnesses could be challenged as mperfect controls for the strength of the prosecuton s case; for example, the prosecuton could plausbly base ther entre case on the testmony of one eyewtness. But together, these varables demonstrate the relatve matchup of resources and evdence on both sdes.

17 2010] SLIPPING AWAY FROM JUSTICE 283 addton, the lst of defendant and vctm personal characterstc varables control for any potental effects of race or gender on tral outcome. The crme fxed-effect varables, 63 crmefe, control for any systematc effects related to the type of crme and nclude dummy varables for homcde, rape, theft crmes, and drug crmes. Fnally, the data set contans three dfferent measures of prosecutor attorney skll, pattyskll, and defense attorney skll, dattyskll. As a result, I wll estmate ths basc model three tmes: the frst usng judgeevaluated attorney skll, the second usng attorney-evaluated attorney skll, and the thrd usng jury-evaluated attorney skll. In the second part of my analyss, I wll consder the nfluence of these same factors on sentence length usng an ordered probt model: Pr( sentence j) [ pattyskll dattyskll pwtness pewtness pexhbt dfemale dblack dhsp dotherrace crmefe ] 16 2 dwtness dewtness dexhbt vfemale vblack vhsp votherrace 9 In ths model, j ranges from one to seven and s based on the NCSC s ratng of sentence length, wth one representng less than a year n prson and seven representng lfe n prson. Ths analyss reles on the same controls as the prevous regresson analyss and wll only focus on ndvduals whose prson sentence length s postve. 64 In ther 2007 study, Abrams and Yoon found that defense attorney skll had a statstcally sgnfcant mpact on tral outcome. 65 If the Abrams and Yoon results not to menton the anecdotal evdence of attorney skll n the popular press are correct, then the effect of defense attorney skll should be negatve on tral outcome and sentence, whle the effect of prosecuton attorney skll should be postve. Thus, β1 should be greater than zero, and β2 should be less than zero n all three versons of both regressons. Ths model wll therefore test the robustness of Abrams and Yoon s results as well as the meda s clams The fxed-effect varables allow each type of crme to have ts own ntercept; ths s useful f, for example, defendants n murder cases are systematcally more lkely to be convcted than defendants n theft cases. See WILLIAM H. GREENE, ECONOMETRIC ANALYSIS (6th ed. 2008) (gvng a techncally rgorous dscusson of fxed effects regresson); STOCK & WATSON, supra note 56, at (gvng a basc overvew of fxed effects regresson). 64. Because only eleven defendants n the sample were convcted but not sentenced to prson, these defendants are not ncluded n the sentencng analyss. 65. Abrams & Yoon, supra note 14, at

18 284 VANDERBILT LAW REVIEW [Vol. 63:1:267 V. RESULTS The results demonstrate that Abrams and Yoon s analyss was, at best, ncomplete. The skll of the prosecutng attorney has a statstcally sgnfcant effect on tral outcomes, yet the skll of the defense attorney does not. Table III reports the results of a lnear probablty analyss of convcton, whch s valuable for ts ease of nterpretaton. 66 Table IV gves the results of the probt regresson, and Table V reports the margnal effects from the probt regresson. In each table, specfcatons one, two, and three use the judge, opposng attorney, and jury ratngs, respectvely, as a measure of attorney skll. Specfcaton four adds the jury s case-complexty ratng to the jury attorney skll ratng specfcaton. The jury case complexty varable can help control for jury confuson, whch mght have effects on jurors percepton of the attorneys and the tral outcome. To ease readablty, Tables III, IV, and V only report the coeffcents most relevant to ths analyss. For the full regresson results, see Appendx Tables I, II, and III. 66. The results of a lnear probablty analyss are easer to nterpret than the results of a probt analyss because the coeffcents can be multpled by one hundred and nterpreted as percentage effects. STOCK & WATSON, supra note 56, at (gvng a basc overvew of the lnear probablty model and how to nterpret t). But see GREENE, supra note 63, at (dscussng problems wth the lnear probablty model despte ts ease of nterpretaton).

19 2010] SLIPPING AWAY FROM JUSTICE 285 TABLE III. LINEAR PROBABILITY MODEL OF CONVICTION Judge Skll Ratngs Opposng Attorney Skll Ratngs Jury Skll Ratngs (1) (2) (3) (4) Prosecuton Skll Ratng ** 0.228** (0.020) (0.036) (0.039) (0.039) Defense Skll Ratng (0.020) (0.034) (0.037) (0.037) Jury-Rated Complexty (0.038) Court-Apponted Attorney (0.073) (0.076) (0.072) (0.073) # of Pros. Wtnesses (0.009) (0.009) (0.008) (0.008) # of Pros. Experts (0.022) (0.021) (0.022) (0.022) # of Pros. Exhbts 0.003* 0.003* 0.003* 0.003* (0.001) (0.001) (0.001) (0.001) # of Def. Wtnesses ** ** (0.013) (0.013) (0.011) (0.011) # of Def. Experts 0.148* 0.189** 0.201** 0.209** (0.058) (0.060) (0.050) (0.052) # of Def. Exhbts (0.002) (0.002) (0.002) (0.002) Constant 0.325* * (0.152) (0.263) (0.283) (0.297) Observatons Adjusted R-squared sgnfcant at 10%; * sgnfcant at 5%; ** sgnfcant at 1% Notes: Evaluaton of Hung Jures n Bronx County, New York, Los Angeles County, Calforna, Marcopa County, Arzona, and Washngton, DC, data come from the Inter- Unversty Consortum for Poltcal and Socal Research. Dependent varable s a dummy varable equal to 1 f defendant was convcted. Specfcaton 1 uses measures of attorney skll as rated by the judge. In specfcaton 2, the skll measures come from the opposng attorney the defense rates the prosecuton, and the prosecuton rates the defense. Specfcatons 3 and 4 both use the average of the jurors attorney skll ratngs, and specfcaton 4 adds the jurors average case complexty ratng to control for any effects of juror confuson on attorney skll ratngs. Controls for the race and gender of both the vctm and defendant as well as crme fxed effects are ncluded n each specfcaton; for full results, see Appendx Table I. Heteroskedastcty-robust standard errors n parentheses. Dummy varables for mssng values of vctm race and vctm gender ncluded n regresson but not reported.

20 286 VANDERBILT LAW REVIEW [Vol. 63:1:267 TABLE IV. PROBIT MODEL OF CONVICTION Judge Skll Ratngs Opposng Attorney Skll Ratngs Jury Skll Ratngs (1) (2) (3) (4) Prosecuton Skll Ratng ** 0.762** (0.059) (0.106) (0.141) (0.144) Defense Skll Ratng (0.060) (0.100) (0.126) (0.127) Jury-Rated Complexty (0.128) Court-Apponted Attorney (0.209) (0.222) (0.226) (0.228) # of Pros. Wtnesses (0.030) (0.031) (0.032) (0.033) # of Pros. Experts * (0.068) (0.070) (0.079) (0.081) # of Pros. Exhbts 0.036** 0.029** 0.042** 0.042** (0.009) (0.008) (0.010) (0.011) # of Def. Wtnesses * * ** ** (0.039) (0.041) (0.040) (0.042) # of Def. Experts 0.522* 0.641** 0.822** 0.844** (0.207) (0.215) (0.215) (0.216) # of Def. Exhbts (0.008) (0.009) (0.007) (0.007) Constant * ** ** (0.482) (0.810) (0.985) (1.012) Observatons Pseudo R-Squared sgnfcant at 10%; * sgnfcant at 5%; ** sgnfcant at 1% Notes: Evaluaton of Hung Jures n Bronx County, New York, Los Angeles County, Calforna, Marcopa County, Arzona, and Washngton, DC, data come from the Inter- Unversty Consortum for Poltcal and Socal Research. Dependent varable s a dummy varable equal to 1 f defendant was convcted. Specfcaton 1 uses measures of attorney skll as rated by the judge. In specfcaton 2, the skll measures come from the opposng attorney the defense rates the prosecuton, and the prosecuton rates the defense. Specfcatons 3 and 4 both use the average of the jurors attorney skll ratngs, and specfcaton 4 adds the jurors average case complexty ratng to control for any effects of juror confuson on attorney skll ratngs. Controls for the race and gender of both the vctm and defendant as well as crme fxed effects are ncluded n each specfcaton; for full results, see Appendx Table II. Heteroskedastcty-robust standard errors n parentheses. Dummy varables for mssng values of vctm race and vctm gender ncluded n regresson but not reported.

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