Of PDs and Private Counsel

 Posted on August 25, 2010 in Uncategorized

Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender.

That's a quote, according to Miller-McCune, from a research paper by Richard D. Hartley. (Hartley wrote his doctoral dissertation at University of Nebraska on the same subject.)

The paper costs $20, and I'm probably not going to spring for it (anyone want to contribute?edit: got a copy!), so we may never know how the finding quoted above supports Hartley's conclusion that "there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders." Does "little difference" mean the same to Dr. Hartley as "almost two times more likely"? Or do black defendants just not count?

I won't call it sloppy without reading it, but the methodology of the study is suspect-if you don't know whether hired lawyers beat more cases outright than PDs, how can you possibly reach such a conclusion? From the Miller-McCune article:

Why are public defenders so effective at representing their clients? One theory, according to Hartley, involves the "courtroom workgroup" model of justice, where the public defender, prosecutor and judge work together to dispose of cases. He notes that when the system functions in this way, "public defenders are in better positions than private attorneys to negotiate favorable plea bargains and to mitigate punishment."

So public defenders, "working together to dispose of cases" with prosecutors and judges, do as well as their hired colleagues in getting bail set, getting charges reduced (except for those inconvenient black defendants), and minimizing jail time for those clients who are convicted.

How's this for a hypothesis worth testing?: that lawyers "working together to dispose of cases" get charges reduced, or minimize jail time, in cases in which more adversarial lawyers would get dismissals or acquittals.

(I don't know if the hypothesis is correct or not-it's often true that PDs are among the best criminal-defense lawyers in town, and Hartley may, black defendants notwithstanding, be accidentally correct-but it is a plausible hypothesis that Hartley has not excluded and that, if true, would account for Hartley's data while refuting his conclusion.)