How The Statistics Get It Wrong On Indigent Defense
November 7, 2016 (Fault Lines) — Calling indigent defense a disgrace is like saying that the Detroit Lions have occasionally disappointed their fans, or that the 2016 presidential election has at times been a bit contentious. And despite the system’s attempt to reduce Gideon v. Wainwright to dicta, the topic of a defendant’s Sixth Amendment right to effective counsel has been getting more publicity in recent years.
However, sometimes, even when sympathetic to defendants, the coverage can get it all wrong. An article in the Detroit Free Press about Ingham, Clinton, and Eaton Counties (Michigan) shows how a little knowledge can be a dangerous thing. I have some personal knowledge of this topic, as I was a court-appointed attorney in Ingham County in 2009.
“COURT APPOINTED ATTORNEYS DO LITTLE WORK, RECORDS SHOW,” blares the headline.
It starts off with this:
When criminal defendants who face life in prison can’t afford their own attorney, they’ll get about three days of work from the lawyer the state appoints for them, a Lansing State Journal investigation has found.
This is an example of statement that is factually correct and completely wrong. Court-appointed attorneys in Ingham County are paid “by the event,” in other words, only for days they actually appear in court. Out-of-court work is supposedly baked into that fee. In a routine case, a court-appointed attorney will only appear three times: first, at the so-called “probable cause conference,” where the case is sent up to circuit court; second, at the Circuit Court arraignment, where the defendant also enters a guilty plea; and third, at sentencing. The real work of representation is not done in the courtroom, such as obtaining and reviewing discovery, meeting with the client and counseling them, negotiating with prosecutors, investigation, and legal research.
The article is based on
[D]ocumenting attorneys’ activities on more than 1,600 felony cases that made it into circuit court and reviewed more than 1,800 invoices from attorneys representing parents targeted by Michigan’s Children’s Protective Services.
Based on the invoices, the article comes up with a bunch of numbers. It’s an impressive (or at least diligent piece) of research, but the numbers are devoid of context, and are thus misleading:
1.6%: Share of cases went to trial.
Which isn’t a necessarily a sign of bad lawyering. Nationally, 94% of state criminal cases end in plea bargains. Of the remaining six percent, some of them are dismissed by the prosecution before trial. 1.6% of cases going to trial seems pretty typical, but without knowing how often retained attorneys go to trial it’s impossible to tell.
24%: The share of cases in which attorneys requested a preliminary examination, at which the court determines if prosecutors have enough evidence for the case to proceed to trial; prelims were held in 58% of life-offense cases.
Typically, though, you only hold a preliminary examination if you’re planning on going to trial. If an acceptable plea offer has been made in the early stages, the exam is generally waived. If a quarter of cases involve prelims, that actually seems high. The 58% for life offenses seems about right, as plea bargains are less likely to be offered at an early stage.
2%: Share of cases where an outside expert or independent investigator was paid on behalf of the defendant.
In what percentage of cases did attorneys request an investigator or an expert? And when requested, how often did judges grant the request? And when the request was granted, how often did attorneys find an expert or investigator willing to work for the fees the court was willing to pay? Without knowing that information, the “2%” statistic is meaningless.
8%: Share of cases in which defense attorneys filed motions challenging the prosecution.
Pretrial motions are things like motions to suppress evidence because of an illegal search, motions to exclude a confession based on Miranda violations, Daubert motions to exclude dodgy “scientific” evidence, and the like. Once again, they are typically only filed if one is planning on going to trial or otherwise fighting the case; either for an outright win or to improve one’s bargaining position in plea negotiations. They generally won’t be filed if a plea-bargain is accepted early. Likewise, if the defense theory is something highly fact-dependent (like alibi or self-defense), those aren’t the subject of pretrial motions.
22%: Share of cases where defendants met their attorney for the first time in court. Proposed standards from the Michigan Indigent Defense Commission call for attorneys to meet their clients within three business days after the attorney is assigned to the case. Attorneys fell short of that standard in more than 300 cases.
They’re actually on to something here. Ideally, you should meet your client as soon as possible after being appointed. The more important question, though, is whether or not the attorney is ever meeting with the client outside of court, and whether they’re having any meaningful conversations about the case beyond “here’s the offer, and you gotta take it.” This begins with providing a copy of the discovery (police reports, etc.) to the client and talking to him about his options and how the case will progress.
If the only time the attorney sees his client is in court, that really is a problem. This is where most of the “public pretender” stereotype comes from. The state might have the defendant nailed dead to rights, but even if that’s the case, it’s important to take the time to explain why, and not just in the courtroom hallway five minutes before the plea.
$580: Average amount court-appointed attorneys made per case.
$222: Average hourly rate for a criminal lawyer working in private practice.
False comparison, as retained CDLs are typically not paid by the hour. A more helpful comparison would be between what court-appointed attorneys made on a case against what retained attorneys were paid for a case of the same type. That said, $580 is a fee more appropriate for traffic tickets, not felonies.
19: The average number of years local court-appointed attorneys have practiced law; 27 attorneys [out of 230] on the list have five years or less experience.
That one surprises me, as I was appointed to my first Ingham County felony case less than two months after I got my bar card, and so were a number of my classmates. I would’ve guessed the proportion of inexperienced attorneys would be far higher. One of the things the article doesn’t mention is that the more experienced attorneys were (and still are, I’m sure) incredibly supportive of the rookies, giving freely of their time and expertise, and to answer really basic questions. That said, no matter how supportive, they couldn’t try the case or negotiate with prosecutors for me.
Beyond the statistics, there are other passages that show that the authors don’t know what they’re talking about.
An attorney walked into a Lansing courtroom earlier this year and introduced himself to his client, who was sitting in court wearing an Ingham County jail jumpsuit. Within an hour the two men appeared before a judge.
The key question is, “appeared before a judge and did what?” If it was “adjourn the hearing so the attorney could counsel his client,” that’s one thing. If it was “waive a preliminary hearing” or “enter a guilty plea,” that’s probably malpractice.
And the records show court-appointed attorneys sometimes go above and beyond. In September 2015, for example, a court-appointed lawyer was able to get drug charges dropped by proving a violation of the Fourth Amendment.
That’s not going “above and beyond.” That’s “doing his job.”
The contention of the article is that “COURT APPOINTED ATTORNEYS DO LITTLE WORK.” That may or may not be true. In my experience, it was not. But the statistics and anecdotes in the article can’t tell us one way or the other. Here’s what we would need to know to decide if indigent defendants are getting good representation:
- How often do the attorneys have meaningful communication with the clients about the case?
- How often do court-appointed counsel “beat the offer,” (i.e. get a better result than what the state was offering) compared to retained attorneys?
- How do court-appointed attorneys compare to retained attorneys when it comes to sentencing? (Michigan has a guidelines-based sentencing scheme in which judges usually sentence within a determined range).
- Of the cases that go to trial, how often do court-appointed counsel win, compared to retained attorneys?
So yes, indigent defense is a national disgrace, in Michigan and elsewhere. There really is no substitute for an adequately staffed, adequately funded, and adequately resourced public defender’s office (court-appointed systems are a much inferior substitute). But before placing the blame on attorneys who didn’t create a broken system and do their best to persevere within it, at least ask the right questions instead making the public stupider with misleading statistics.
 Sometimes this isn’t possible, if the attorney doesn’t have contact information for the defendant.
 Again, to be fair, sometimes this is because of the client.
 Though maybe not, if the client was insisting on pleading right now so he could get out of jail faster.