We found that judges perceive significant disparities in the quality of legal representation in criminal cases, and that these disparities occur in 20% to 40% of the cases they hear. Federal judges generally rate prosecutors as comparable in quality to public defenders and significantly better than court-appointed counsel or retained counsel.
As reported in Table 4, federal judges differed from state judges in their overall impression of different criminal lawyers (Question 4). Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. n30 Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. n31[p. 341]
n30. For each federal judge group, the difference in ranking between prosecutors and public defenders was small and not significant.
n31. For each federal judge group, the difference in ranking between court-appointed and private counsel was small and not significant.
The judges' views of criminal lawyers (Tables 4 and 5) inform controversy over the relative effectiveness of these different types of defense counsel. n52 Federal appellate and district judges in our sample express high regard for prosecutors and public defenders but low regard for court-appointed counsel and retained counsel, which is consistent with the previous legal n53 and economic n54 literature.
[pp. 341-342]n52. See, e.g., Morton Gitelman, The Relative Performance of Appointed and Retained Counsel in Arkansas Felony Cases - An Empirical Study, 24 Ark. L. Rev. 442 (1971); Joyce S. Sterling, Retained Counsel Versus the Public Defender: The Impact of Type of Counsel on Charge Bargaining, in The Defense Counsel 151, 167 (William F. McDonald ed., 1983); Robert V. Stover & Dennis R. Eckart, A Systematic Comparison of Public Defenders and Private Attorneys, 3 Am. J. Crim. L. 265 (1975).
n53. See, e.g., Margareth Etienne, The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Diminished Role of Defense Attorney Advocacy Under the Sentencing Guidelines, 92 Calif. L. Rev. 425, 478 (2004) (citing studies attesting to the quality of federal public defenders); Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 Cardozo L. Rev. 1, 49-50 (2008) (discussing the gap in quality between federal public defenders and court-appointed (Criminal Justice Act panel) attorneys).
n54. See Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel 3 (Nat'l Bureau of Econ. Research, Working Paper No. 13187, 2007), available at http://www.nber.org/papers/w13187 (discussing how federal public defenders earn sentences approximately eight months shorter, on average, than federal court-appointed lawyers).
Retained counsel represent 25% and court-appointed counsel 33% of federal criminal defendants. If the quality of legal representation matters to criminal case outcomes, as recent studies suggest, n56 a majority of indigent federal criminal defendants may be serving longer sentences by virtue of not having been represented by a federal public defender. The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, n57 but one federal district judge described the work of defense attorneys other than public defenders as "exceedingly poor."
[p. 342]n56. See Abrams & Yoon, supra note 3, at 1173 (showing that a "defendant who is randomly assigned the tenth percentile public defender has a 14 percentage point greater chance of receiving incarceration than one assigned to the ninetieth percentile public defender").
n57. Strickland v. Washington, 466 U.S. 668 (1984) (interpreting the Sixth Amendment's Counsel Clause as guaranteeing the effective assistance of counsel, whether appointed or privately retained).
The judges' responses to Question 4 (Table 4) suggest which combinations of prosecutor and defense counsel are most likely to result in disparities in the quality of legal representation in criminal cases. For federal (appellate and district) judges, it is when a prosecutor opposes either court-appointed or retained counsel. For state appellate judges, it is more likely when the prosecutor opposes court-appointed counsel. For state trial judges, however, a pattern is less apparent. Although judges may disagree on the relative ordering by skill level of the different types of criminal lawyer, the responses to Question 5 indicate that each judge group perceives significant disparities in quality of counsel in 20% to 40% of all criminal cases. Given the judges' consistently positive impressions of prosecutors, the results suggest that criminal defense lawyers are indeed inferior.[pp. 342 - 343]
The view among judges - except state trial judges - that the different types of criminal lawyer, including prosecutors, do not influence case outcomes significantly (Table 5, Question 6) challenges the belief of some scholars that prosecutors have a great impact on outcome. n60 One explanation is that judges see themselves - or, in jury cases, jurors - as playing a more important role in the case than lawyers. One federal district judge commented that our survey "understates the extent to which the facts - not the lawyers - are perceived by the jurors and result in a substantially correct verdict. My observation over my many years is that the jurors get it right if the judge presides fairly and judiciously." On this view judges and jurors, at least in criminal cases, may largely neutralize the effect of disparities in quality of counsel by leaning in favor of the weaker counsel.
[pp.345-346]n60. See, e.g., Jennifer Bennett Shinall, Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes, 63 Vand. L. Rev. 267, 274 (2010) (arguing that prosecutors matter more than defense attorneys in criminal jury trials); Frank O. Bowman, III & Michael Heise, Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data from the District Level, 87 Iowa L. Rev. 477, 526-30 (2002) (discussing the discretionary authority of prosecutors that can have significant effects on sentence outcomes).
The survey also provides insight into judge and jury decisionmaking. While existing scholarship suggests that judges and juries agree on case outcomes in a majority of cases, n71 the judges' responses to Questions 14 and 15 (Table 10) may help to explain the residual disagreements. When litigants have lawyers of unequal quality, judges can frequently correct the imbalance through their own research, n73whereas juries cannot and therefore respond to the inequality in representation by gravitating toward the litigant with the stronger lawyer. This finding is consistent with evidence n 74 that the quality of legal representation has a strong effect on case outcomes. If the stronger lawyer coincides with the litigant with the stronger case on the merits, then one would expect judges and juries to agree on the outcome. If, however, the weaker lawyer coincides with the litigant with the stronger case on the merits, then judges and juries are likely to disagree. One federal district judge suggested that judges were performing the job of the lawyers: "It is frustrating having to conduct research, raise fundamental issues sua sponte, and having the litigants reap all the benefits."
[p. 346]n71. See Kalven & Zeisel, supra note 11, at 55-56 (finding in a study of over 3500 criminal cases that the judges and juries agreed on the verdict 75.4% of the time); see also Theodore Eisenberg et al., Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven and Zeisel's The American Jury, 2 J. Empirical Legal Stud. 171, 173 (2005) (reaching results similar to Kalven and Zeisel's in a replicated study). For a discussion of scholarship motivated by the Kalven and Zeisel study, see Valerie P. Hans & Neil Vidmar, The American Jury at Twenty-Five Years, 16 Law & Soc. Inquiry 323 (1991).
[n72 Omitted by JAT]
n73. Cf. Fiss, supra note 35, at 1077 (discussing "the guiding presence of the judge, who can employ a number of measures to lessen the impact of distributional inequalities").
n74. See Abrams & Yoon, supra note 3, at 1173 (finding that defendants who are assigned public defenders in the ninetieth percentile of ability have an incarceration rate fourteen percentage points lower than those with public defenders in the tenth percentile of ability); Carroll Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of a Randomized Experiment, 35 Law & Soc'y Rev. 419 (2001) (showing in a randomized study that plaintiffs with legal representation fared much better than those without).
Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are "smart, well-prepared and know the law and write great briefs - but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were." The same judge expressed concern about the "vanishing trial" trend's impact on the development of legal doctrine, writing that "it may be as the disappearing trial continues to go away, there will be some areas of the law that will not continue to develop as they otherwise would." n75
n75. For an empirical examination of trends in trial rates in state and federal court, see Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004).