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Recent Blog Posts
After a Year of DIVERT
For your perusal: Harris County misdemeanor courts, DWI statistics compared between the year ending July 31, 2010 and the previous year (roughly DIVERT and pre-DIVERT).August 2009-July 2010 August 2008-July 2009DWI Cases Pendingat Start of Period6,6876,039New DWI Cases Filed12,31511,341DWI Motions toRevoke Probation Filed775656Other DWI CasesReaching Docket107Total DWI Cases on Docket19,78718,043DWI Convictions (Guilty Pleas)8,1878,917DWI Convictions (Bench Trial)21DWI Convictions(Guilty Plea to Jury)81DWI Convictions(Not Guilty Plea to Jury)9686Total DWI Convictions8,2939,005DWI Deferred Adjucation*11DWI Acquittals (Bench Trial)12DWI Acquittals (Jury Verdict)7377DWI Acquittals (Directed Verdict)29Total DWI Acquittals7688DWI Dismissals("Insufficient Evidence")319386DWI Dismissals(Other Reasons)1,9081,107Total DWI Dismissals2,2271,493Motions to Revoke DWIProbation Granted434365Motions to Revoke DWIProbation Denied347403All Other DWI Dispositions21Total Other DWI Dispositions783769Total DWI Dispositions11,38011,356Cases Pendingat End of Period8,4076,687
Trial Bonding
Defending people should be personal. A human being has put his future in your hands, and someone is trying to take that future away. "Don't take it personally" is lousy advice; it may not be necessary to care about the human being you're defending, but it helps-when a lawyer cares about his client, the jury feels it.
A funny thing often happens in a criminal jury trial, though: lawyers who are striving righteously to beat each other's metaphorical brains out in front of the jury often come out, after a few days or weeks in trial, not only respecting but also liking each other.
I'm not sure I can say why that is-the activation of some warrior's code, perhaps, that drives lawyers to appreciate the character and talent of her adversaries even put to the unholy service of an attempt to ruin our clients. Any of us could, with one unlucky break, have wound up prosecuting instead of defending.
It's not dependent on the outcome; these kindly feelings don't come from winning or losing, but from fighting. There may be an ethic of sportsmanship involved-while trial is not a game, it attracts competitors, and that generally means people who have learned to be gracious in defeat, in victory humble, and to respect the competition's skills.
The TCDLA Politburo at Work
We recently had a contested election for the office of President Elect in our association. Both candidates were gracious and treated each other with respect; however, some of us were not so gracious. Statements were placed in emails and blogs that did not reflect well on us or our association. One member published a blog in which he called one candidate a liar based in part on a misstatement of events at a meeting the blogger did not attend. I know they were misstatements because I was at the meeting. The comments constituted a reckless disregard for the truth. More to the point, they were unnecessary to the more issue-focused statements the blogger was attempting to make. They may have created a "rah rah" reaction among those who agreed with the writer, but they also probably created enemies the writer does not know of who will treat the writer with distrust in the future.
That's the Texas Criminal Defense Lawyers Association's new President, Bill Harris, in his inaugural President's Message in the organization's Voice for the Defense magazine.
Frendship and Friendship
Before I euthanized my account there, I had hundreds of "friends" on Facebook. Most of them I knew only slightly; some of them I didn't even really like. Precious few of them were genuine friends.
Someone (I wish I could find a link to give proper credit) coined the term "frends" to represent those online acquaintances-similar to friends, but not quite-a variance that makes all the difference in the world.
A true friend is one who, when he finds out you are in trouble, will drop what he is doing and do what he can to help. Want to know how many genuine friends you have? Get charged with a serious crime.
Who tracks you down when you've disappeared into the maw of the criminal justice system? Who visits you in jail, just to talk? Who puts money in your inmate trust account? Who bails you out? Who picks you up in the middle of the night when you get out? Who returns your lawyer's calls? Who drags you to rehab? Who gives you rides to and from court? Who keeps you company when you're there?
PDs and Private Lawyers: Last Thoughts
I've been on a tear about Hartley, R.D., et. al.'s Do you get what you pay for?
Aside from their sloppy writing and questionable conclusions, the collaborators wrote a couple of things that really ticked me off.
First, they consistently wrote about what happens to human beings in a criminal courthouse as "case processing," as in:
Public defenders, like prosecutors and judges, want to ensure the smooth and efficient processing of cases.
That's downright libelous to all of the ethical and conscientious public defenders who, rather than wanting to ensure the smooth and efficient processing of cases, want to make it as difficult as possible for the state to put their clients into boxes. We're not making Soylent Green, we're fighting for souls. Some prosecutors and judges may think of what they do as case processing, but nobody who shares that view is welcome at the counsel table with me.
Second, the authors also wrote several times about "the courtroom workgroup," as in:
PDs and Private Lawyers: The Missing Data
The data for this study are from Cook County (Chicago), Illinois, and are a random sample of 2850 offenders convicted of felonies in Cook County Circuit Court.
Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010).
I asked here, if you don't know whether hired lawyers beat more cases outright than PDs, how can you possibly reach the conclusion that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders?
The answer: you can't.Here are some numbers, from the Bureau of Justice Statistics' Special Report, Defense Counsel in Criminal Cases:
Case disposition (public counsel / private counsel):75 largest counties Guilty by plea: 71.0% / 72.8%Guilty by trial: 4.4 / 4.3Case dismissal: 23.0 / 21.2Acquittal: 1.3 / 1.6U.S. district courtsGuilty by plea: 87.1% / 84.6%Guilty by trial 5.2 / 6.4Case dismissal 6.7 / 7.4 Acquittal: 1.0 / 1.6
PDs and Private Lawyers: What the Numbers Mean
Here are some conclusions that can be drawn from Hartley's data:
In Cook County, Illinois, in 1993, convicted defendants were:
1.81 times as likely to have been released on their own recognizance if they were charged with a class 1 felony as if they were charged with a class X felony.
2.10 times as likely to wind up incarcerated if they were hispanic as if they were white.
1.46 times as likely to wind up incarcerated if they used a weapon as if they didn't.
2.36 times as likely to wind up incarcerated if they were male as if they were female.
Convicted white defendants were 2.74 times as likely to have been released on their own recognizance with a hired lawyer as with an appointed lawyer.
Assuming that they were convicted:
Employed defendants were 2.12 times as likely to get their primary charges reduced if they had hired counsel as if they had public defenders.
Unemployed defendants were 1.96 times as likely to get their primary charges reduced if they had hired counsel as if they had public defenders.
PDs and Private Lawyers: More Likely Than or As Likely As
Various readers generously sent me copies of the Hartley article I mentioned here (Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010)), and I'm puzzling my way through it, giving myself a crash course in statistics on the way.
That crash course is not simplified by the fact that, throughout the article, Hartley and his colleagues are (I finally figured out) using "more... than" when he should be using "as... as," as in:
Property and drug offenders are over 3 and 6 times more likely to be released ROR than violent offenders.
What the statistics show is that Exp(ß) for property offenders (as opposed to violent offenders) being released on their own recognizance is 3.20. That is, property offenders are 3.20 times as likely to be released ROR as violent offenders are, or more than two times more likely to be released ROR than violent offenders.
Of PDs and Private Counsel
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?
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