This answer may get so IMHO-ish that the mods will move it, let them:
IANAL, but the impression I get is that usually, when someone is charged with a crime, the evidence is so overwhelming that the defense attorney is merely a formality or may at least reduce their sentence a tad. How often is it that the defense attorney ends up being the deciding factor - getting their client to walk free entirely, rather than being convicted?
In particular, how useful is a federal defense lawyer? AIUI, the feds are particularly meticulous, winning around 99% of their cases due to doing so much homework, that you’re all but hopeless if fed-indicted.
Federal Defenders are some of the best criminal defense attorneys that are out there. The Feds, however, do win almost every case that goes to trial. The government has unlimited resources and can decline to prosecute any case they don’t think they can win.
However, a good attorney can make a difference. Win a suppression motion and the case goes away or charges reduced. Put together a compelling sentencing package and the judge might shave years off the presumptive sentence.
Many cases are tried simply aiming for conviction of a “lessor included offense.” I’m not sure how that shows up on the conviction rate statistics.
In my opinion, good lawyering does make a difference, although there is no control group that would allow us to quantify it.
Side note: Sometimes what is accomplished is simply letting the defendant see they got treated fairly and understand the strength of the evidence against them I’ll never forget one client telling me from his holding cell while we were waiting for a verdict, “please tell the judge and prosecutor ‘thank you’ for me. I never expected to be treated fairly and with such respect.” If he had pleaded guilty and got five years, he would have felt like a victim. He still got the five years (for growing marijuana) but I think he accepted his fate as the risk he decided to take.
Odd. My impression was that the prosecutors offer a deal to plead guilty, with the implicit threat that if you make them go through a trial, they will ask for a lot more… How did it happen that he got the same as if he’d pled guilty?
That’s often, but not always the case. In this particular case there was a five year mandatory minimum (100 plants or more). The government got the same sentence either way. (which is one of the reasons the defendant was willing to roll the dice with a trial)
[they could have tried to screw him even more after the trial, but everyone thought five years for a non-violent pot grower with a wife and young child was more than enough]
Pew tells us that there were about 80,000 criminal defendants in federal court for fiscal year 2018. Of those, 90% pleaded guilty. Of the 10% who did not plea guilty, 8% had their cases dismissed. Only 2% of the 80,000, which is about 1,600 persons, went to trial.
Of the 1,600 people whose cases went to trial, 83% were convicted and 17% were acquitted. We are talking about 272 people out of 80,000. That would be 0.34% of the cases. In some fraction of those, a federal defense attorney may have been the deciding factor. I imagine the majority of acquittals were obtained by the assistance of retained counsel, but without a cite I won’t reduce the number any further.
So I submit to the Factual Questions board, as an upper figure representing how often a federal defense attorney is the deciding factor between conviction and acquittal,
Max,
First of all, you’re not giving any credit to the attorney for the 8% of the cases dismissed. (true, not the deciding factor “between conviction and acquittal,” but still)
Second, if you’re wondering how effective an attorney is at trial, it’s only fair to use statistics from trials only. Your cite says 17% of defendants were acquitted. (that seems high) That’s much more significant at .34%
Third, you speculate that most of the acquittals were achieved from retained counsel. I don’t have any facts either, but I would speculate the opposite. For two reasons. Federal Defenders tend to be very good, and most federal acquittals that I’m aware of were multi-defendant trials where the jury let one or two minor players off for lack of evidence. The small fish tend to have appointed counsel.
Finally, your summary of the Pew study (I haven’t opened the link) talks about acquittals and convictions. In many trials, conviction of a lessor offense is huge.
There are cases that can’t be won no matter how good the lawyer is. There are other cases with some flaw that a jury or judge is going to acquit, even with a mediocre defense attorney. In the middle are cases where good lawyers can make a difference.
All fair criticisms. I do not mean to imply that federal defense attorneys are lacking - I imagine most of their successes are to be found in those dismissed cases, or favorable terms for bail, plea bargain or sentencing stages. It would be a mistake to judge them by their acquittal rate; yet, that seemed to be what was asked for.
Two complicating factors: when did the defendant retain the attorney, and did the defendant follow the advice of his attorney? I interned for the public defender in law school and have several friends there now. The number of cases already lost before the attorney is even appointed because the defendant had to open his fool mouth after being Mirandized, plus the number of cases where the defendant insisted on testifying against the advice of his attorney, or refused a plea bargain that would’ve counted as a win in my book, is simply staggering.
I wonder what that stats are if the client didn’t already torpedo their case. So leaving out the confessions, those that want to help the cops out by talking, etc. and instead focusing on the “I’m invoking my 5th Amendment rights”, “I do not consent to any searches”, and “I want an attorney” clients, what is the defense attorney success rate.
There are so many variables that’s it’s really impossible to say. Who’s on the jury, who is the judge, who is the prosecutor? How strong are the state’s witnesses (they often look formidable on paper, but sometimes they flake out at trial.) Looking back at the criminal trials I won, it’s hard to say I did a better job than I did on the cases I lost.
Sometimes things just break your way. Witnesses might disclose a bias during a clever cross, or a cop might make a concession that gives you room to argue something you didn’t expect. I won a vehicular homicide trial once because the medical examiner agreed our theory was plausible. (intoxicated victim darted in front of intoxicated defendant’s car leaving no time to stop.) It usually takes some skill and experience to develop things like this and to capitalize in them.
Looking at it another way and using those Pew numbers, of all the people the Feds tried to actually bring to trial, their lawyers were involved at some level in getting 80% of those cases dismissed, and won 17% of those that went ahead. As mentioned dismissal and acquittal are different things, but from the defendant’s perspective how different? The lawyers get them off 83.4% of the time the Feds try to take them to trial.
And of the 90% who plead guilty before the fact, surely their lawyers must be of great assistance in getting reduced sentences or lesser charges. I’d say a federal defender gives a person a much better outcome than going it alone.
By the time a defendant realizes the authorities (state or federal) are onto them, isn’t it usually when the authorities have already done a lot of investigative homework? Even if the defendant retains an attorney instantly at that moment, the lawyer would be a mile behind the prosecution?
The defense attorney can catch up. The problem is more the defendant choosing to talk to the police instead of shutting up and invoking his right to counsel.
I’m sure I’m misunderstanding, but how does a defender catch up if the authorities have already gotten the DNA, the blood, the video footage, the text messages, etc.? The defender could and would challenge things, but it sounds like throwing ten consecutive Hail Marys and needing each one to be a touchdown - the authorities only need to have, say, 30% of their collected evidence to win their case, but the defender must overturn 90% or 100% of the evidence - especially, again, against people like the feds, who do really detailed homework when they decide to pursue a case.
It’s usually not a slam dunk case for prosecutors even with all the investigative evidence beforehand. And the defense has the beyond a reasonable doubt standard in criminal cases, which helps them quite a lot.
What do you imagine the defense attorney would do about those things if given a head start (that wasn’t obstruction of justice, witness intimidation, etc.?)
I would think you would have to break this question down into multiple cases:
The defendant is innocent, but the circumstantial evidence is damning.
It’s debatable whether what happened was a crime.
The defendant is guilty but there is not much evidence (or some evidence is questionable).
The defendant is guilty and there is plenty of good evidence.
The defendant is guilty and has dug himself in too deep before the attorney arrives on the scene.
For each circumstance, you can see that the defense attorney has a different job, and the best possible outcome is different - charges dropped, innocent at trial, or plea deal, or lesser sentence. The problem with the stats cited, is that (I’m assuming) the last two are the majority of cases that proceed beyond the investigation stage to actual charges filed and trial set. Rarely can defense attorneys do miracles.