No Country For Old Criminal Defense Lawyers
Mar. 7, 2016 (Mimesis Law) — As some of you know, I am fascinated by empiricism. For example, I wrote that data derived from the field of criminology could and should be put to far more use at sentencing. See my 2015 article in the Federal Sentencing Reporter here (under “Other Items of Interest”).
As I was thinking about my next post for Fault Lines, I began to wonder about how prosecutors and criminal defense lawyers would score on the Minnesota Multiphasic Personality Inventory, the most widely used and researched standardized psychometric test of adult personality and psychopathology. I couldn’t find anything on the subject.*
So, I began to look for other information about profiles of lawyers who live their lives dealing with criminals. There is remarkably little out there. But, I did stumble across a particularly fascinating article that forms the basis for the question I present at the end of this post. See Ronald F. Wright and Ralph A. Peeples**, Criminal Defense Lawyer Moneyball: A Demonstration Project, 70 Washington & Lee Law Review, 1222 (2013).
Here is the abstract from a draft of this article that appears on the Social Science Research Network:
The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.
Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.
Ronald F. Wright & Ralph A. Peeples , Criminal Defense Lawyer Moneyball: A Demonstration Project, SSRN (December 17, 2012) (emphasis added).
For purposes of this post, I don’t want the reader to be overly concerned with the adequacy of the research design or the statistical validity of the model constructed by the professors. Suffice it to state that the professors’ work has all the hallmarks of a sound empirical inquiry. Their work included plenty of R-squares, T tests, P tests and all the rest.
For now, I am interested in the surprising finding that at a certain point the experience level of criminal defense lawyers is negatively correlated with outcomes for the client. The authors write:
Another variable that initially attracted our attention is years of experience. Intuitively, it is difficult to know whether experience would move the performance score up or down. On the one hand, attorneys with more experience might learn from past efforts and become more effective over time for their clients. On the other hand, attorneys might devote less energy to their cases after many years on the job and may invest less time in learning about any changes in criminal law and practice—particularly for complex changes in the law, such as the arrival of sentencing guidelines. Similarly, more experienced attorneys may over time come to accept local norms about acceptable outcomes and stop pressing so hard against that accepted courthouse culture. This phenomenon might be called the “Sam Rayburn effect,” recalling the former Speaker of the House of Representatives’ advice: “If you want to get along, go along.”
The data from North Carolina offers tentative support for the latter unhappy story about experience. The average case performance score remains positive for the first 5 years in practice; the average case performance for almost every experience level above that is negative. Figure 1 summarizes the trend.
Ronald F. Wright and Ralph A. Peeples, Criminal Defense Lawyer Moneyball: A Demonstration Project, 70 Washington & Lee Law Review at 1257-1259.***
Now, I am about to ask a question. But before I ask it, and request that you answer it, please view the following short clip from the opening scene of No Country For Old Men. The words that you hear spoken are by Tommy Lee Jones as Sheriff Ed Tom Bell, a laconic, soon-to-retire county sheriff.****
Now here is the question: Is the practice of criminal defense no country for old men?
Richard G. Kopf
Senior United States District Judge (NE)
*I have a hypothesis, however. I bet the L scale for more than a few prosecutors and criminal defense lawyers would be high. Know what I mean? By the way, when the L score is elevated for cops, that’s a bad thing. See Peter A. Weiss and James E. Vivian, Exploring the MMPI-2 L Scale Cutoff In Police Selection (2010).
**Ronald Wright is the Needham Y. Gulley Professor of Criminal Law at Wake Forest University; Ralph Peeples is a Professor of Law at Wake Forest University.
***In Figure 1, the average performance score for the category 0–5 years is based on 2393 cases and 45 attorneys; for 6–10 years, 2041 cases and 45 attorneys; for 11–15 years, 2225 cases and 42 attorneys; for 16–25 years, 1991 cases and 40 attorneys; and for 26 or more years, 1,847 cases and 42 attorneys. Id. at 1258 & n. 113.
****Here are the words the Sheriff speaks:
I was sheriff of this county when I was twenty-five. Hard to believe. Grandfather was a lawman. Father too. Me and him was sheriff at the same time, him in Plano and me here. I think he was pretty proud of that. I know I was. Some of the old-time sheriffs never even wore a gun. A lot of folks find that hard to believe. Jim Scarborough never carried one. That the younger Jim. Gaston Boykins wouldn’t wear one. Up in Commanche County. I always liked to hear about the old- timers. Never missed a chance to do so. You can’t help but compare yourself against the old timers. Can’t help but wonder how they would’ve operated these times. There was this boy I sent to Huntsville here a while back. My arrest and my testimony. He killed a fourteen-year-old girl. Papers said it was a crime of passion but he told me there wasn’t any passion to it. Told me that he’d been planning to kill somebody for about as long as he could remember. Said that if they turned him out he’d do it again. Said he knew he was going to hell. Be there in about fifteen minutes. I don’t know what to make of that. I surely don’t. The crime you see now, it’s hard to even take its measure. It’s not that I’m afraid of it. I always knew you had to be willing to die to even do this job. But I don’t want to push my chips forward and go out and meet something I don’t understand. You can say it’s my job to fight it but I don’t know what it is anymore. More than that, I don’t want to know. A man would have to put his soul at hazard. He would have to say, okay, I’ll be part of this world.