This is an excellent summation! Yesterday I was in court and saw a guy plead to 20 months in jail. He was ecstatic - he had been looking at up to 45 years if he lost at trial and got the max. Meanwhile, I saw a disgruntled guy reject a plea to probation, with no actual conviction on his record, because “I’m innocent.”
Sometimes, the lawyers’ job is to mitigate damage. Sometimes, it’s to win at trial. Sometimes, a case is won because of some phone calls to the right people to get it resolved. Sometimes, it’s won after litigating in court. You can’t look at the case’s outcome, or the results of the formal hearings, to decide if the defense did a good job.
I think it only logical that experienced/expensive lawyers who put more into a case than public defenders can because of work load would have to have a markedly better record than public defenders. According to this study, which also cites other studies done on the same subject, this doesn’t seem to be so.
Results suggest that case and defendant related causes, such as the seriousness of the charge, prior record, and pretrial detention status, have a more significant impact on the severity of the sentence than the attorney (Willison, 1984). This study suggests that case factors matter more than attorney type, thus enabling future studies to continue to look at whether other factors have more of an impact on conviction rates, or sentencing outcomes, rather than attorney type. Another study supports the
claim that defendants who hire private attorneys are just as likely to receive a conviction, incarceration, or sentence to prison as those with public defenders (Cohen, 2014). This study advanced prior knowledge that in state courts, public defenders and private attorneys received similar sentencing outcomes
I think OP may want to investigate conviction rates in state courts after a case is brought to trial, pre-Gideon versus post-Gideon. Gideon is the 1963 ruling where defendants in state courts were guaranteed counsel in all felony cases. It would be even more difficult to find federal numbers pre and post Johnson v Zerbst, which guaranteed the same right in federal felony cases in 1938.
I can’t help but wonder if there isn’t all that much incentive for a defense attorney to put in real effort to win a case once he’s raked in the big bucks. Even if he loses, it’s not like his win-loss record is posted online for all to see, like some NBA team’s playoff standings. He only needs to harvest testimonials from all of his wins and post them on his websites/advertisements while sweeping the losses under the rug.
As long as his client can’t claim inadequate representation, what can be done? The convicted defendant may seethe but the money is already in the lawyer’s bank account.
I’m not the OP, but I think this is the wrong comparison. Even if a defense attorney doesn’t “make a difference” in the outcome of a case, the defendant is still worlds (and I mean worlds) better than going at it alone.
I interpreted the “make a difference” between a good lawyer and a bad lawyer.
First, there is professional and personal dedication, not only to the job, but to the profession. This guy has his life in my hands. I take that very serious as do most defense attorneys. I’ve lost sleep for days after a conviction because I worry that I could have done something more.
Second, the “jail telegraph” is more powerful than any medium of communication in the world. If you are a lousy attorney or a good attorney, everyone in the prison and the jail holding cells know about it.
Yep. Without a doubt, reputation is huge for criminal defense attorneys. When even the cops tell an arrestee that you are the name they’d call if they got in trouble, you’ll be flooded with referrals. If you are a guy who has a reputation for rolling over, nobody will be recommending you.
Moreover, from a larger professional standpoint (and in addition to your own self imposed pressure to do right, as mentioned above), there’s also the fact that you plan on having a career that transcends any one case. So, you want to be mindful of cultivating a reputation with your colleagues (I.e. the prosecutors you see everyday) as a tough, but honest, litigator.
It will pay dividends as you work on cases over the years (I.e. you can develop credibility if you acknowledge when your case sucks but are willing to fight when you have issues worth litigating). This will often help with asking for plea deals and hammering out terms, since the other side will take you more seriously when you let them know you are going to push, or be more friendly when you show up hat in hand.
That’s not to say that lawyers trade cases (this seems to be a persistent belief in the jail - a lawyer will “get you off” by agreeing to give up on another matter), but if you have long term rapport you might have better luck getting the other side to say “ok, I’ll ask my supervisor if we can get this done”, or have more authority if you say “look, we can fight this if you want, but I have good facts to get the evidence suppressed.”
Of course, even the most congenial attorneys sometimes have to part ways with regard to their opinions, and not everything can be bargained, but the ability to sort out those truly contested cases from those that can, and should, be worked out is often the mark of a successful defense attorney. .
Real stats would be impossible to get for this, of course, but would it be something like a 2% win rate for defendants who blew their mouths and talked against their attorney’s advice, versus maybe a 40% win rate for those who did keep their mouths shut and followed all the right procedures?
I read somewhere that the rule in Britain was that the prosecutor could only offer a deal of 2/3 of the sentence they would ask for at trial. This had the effect of reducing ludicrous pile-on sentence requests and people taking a plea because losing would be unacceptably bad. An innocent person would likely be willing to gamble 50% more time as a fair chance, and a guilty person would know they are going to lose anyway and take the deal. If more people might chose to go to trial, it would also force the prosecutor to do a good job with the case.
Of course, there’s also cases like Aaron Schwarz, who was offered 6 months or risk a trial and 35 years, so he took his own life instead.
This is such a serious matter. Apparently, plea bargaining accounts for the large percent that pleads guilty, but that doesn’t mean they are guilty. We have no transparency over law enforcement, and if we did, we would all be wearing a hair shirt for being naive. Here’s where we can start: [link removed]
Did you know that public defenders are not free? At the end of a trial, the state bills the client for his cost, so nearly everyone touched by this goes bankrupt.
Several people (including Rosie O’Donnell) took up the case of a 15-yo who was incarcerated in Rykers for 3 years despite a severe lack of evidence - just the word of his accuser who disappeared not long after the arrest. (He eventually committed suicide a year after being released). During his stay, he said so many of the inmates asked him “Why don’t you take the plea deal? it don’t matter. You ain’t gonna win in court.” That’s the general state of the US justice system, especially if the defendant cannot get bail.
The important bit here is they do not prosecute cases that are difficult. They go for the low hanging fruit.
This can be illustrated by the government simply not going after rich people’s taxes. It is so much easier to lean on the average schmo. Why work hard to get a wealthy person who has an army of attorneys?
Since 2011, Audit Rates for the Wealthy Have Dropped More Steeply Than for EITC Recipients
Budget cuts have crippled the IRS over the past eight years. Enforcement staff has dropped by a third. But while the number of audits has fallen across the board, the impact has been different for the rich and poor. For wealthy taxpayers, the story has been rosy: Not only has the audit rate been cut in half, but audits now tend to be less thorough.
It’s a different story for people who receive the EITC: The audit rate has fallen less steeply and the experience of being audited has become more punishing. Because of a 2015 law, EITC recipients are now more likely to have their refund held, something that can be calamitous for someone living month-to-month.
IRS computers choose people to audit, but if those taxpayers respond, a person must review the documents. With fewer employees to do that, delays have mounted in a process that was already arduous, according to several attorneys who represent taxpayers through the Low Income Taxpayer Clinic program. It regularly takes more than a year to get a taxpayer’s refund released, they said, even for those who are represented.
And, lower income people have less resources to deal with the IRS. I had them flag my business for something that was entirely their mistake. It took almost 3 years to get it resolved, and that was through my CPA. If I hadn’t been able to dump it into their lap and ask them to take care of it, I probably would have ended up paying it out of frustration.
Biggest problem was just getting someone on the phone, or even get an email through to a live person. Everything just kept getting bounced back since they didn’t have enough agents to respond to my inquiries.
That cite is comparing a subset of low-income filers - people who claim EITC - to the broader spectrum of higher income filers. And the cite itself says the reason for the higher audits on that subgroup is that the EITC is thought to be rife with errors and fraud.
But the overall level for audits for people with higher incomes is substantially higher than for “the average schmo” with lower incomes, despite the former’s greater access to legal resources, and contrary to your claim.
Lots of good responses, and not sure if this was mentioned. A good defense attorney can make a big difference, but, in part, for reasons on money. People that hire expensive/good defense attorneys, also can afford their expenses (in addition to the attorney fees). Expenses include hiring your own experts, hiring investigators, travel expenses - basically, being able to have your own army like the prosecutors have access to. It makes the fight more fair, above the bare minimum the law requires.
Finally, you’re paying for their time. If you pay someone enough, they can afford to work on just a few cases and are able to spend more time on your case. Spending more time on a case can lead to better results. You’re able to fight every battle (it’s expensive to do that). So, while the evidence might be overwhelming, it has to be admissible. You pay a good attorney and he can fight whether that evidence is admissible at each and every step, and bring in experts to cast doubt on why the evidence should not be admissible, etc. etc. Maybe to the point all that evidence doesn’t look so convincing anymore (or at least forces prosecutors to spend a lot of time in resources on it).
A skilled defense attorney is required, but money allows that skill to flourish.
