Do you get what you pay for? Type of counsel and its effect on criminal court outcomes

Although the Sixth Amendment of the constitution guarantees assistance of counsel to indigent criminal defendants, questions exist about the quality of this representation. Critics assert that ‘you get what you pay for’ and that public defenders are less effective than privately retained counsel regarding criminal justice outcomes. Some research, however, reveals that public defenders are as effective as privately retained counsel because of their working relationships with prosecutors and judges, the so-called courtroom workgroup. The current study tested the assertion that ‘you get what you pay for’ by examining the effect of type of counsel (public defenders versus private attorneys) on four different case processing outcomes for a large mid-western jurisdiction. Results generally show that type of counsel has no significant direct effect. Tests for interaction, however, suggest that for some defendants, type of counsel interacts with other key variables to influence certain outcomes.     

Nature versus Nurture: A Comparison of Russian Law Graduates Destined for State Service and for Private Practice

This article explores the mind‐set of Russian law students on the cusp of graduation. Drawing on a 2016 survey, the analysis finds that, despite having taken different paths to their degrees, the respondents share a confidence in the Russian courts that distinguishes them from Russians without legal education. Within the sample, a natural division is evident between those who plan to go into state service and those who plan to go into private practice. Aspiring state lawyers are more likely to support the policies of the Putin regime, even when they preference politics over the letter of the law. This strongly suggests that the tendency of judges and state lawyers within the criminal justice system to work as a team to ensure convictions is not solely the result of workplace incentives, as had previously been assumed, but is an element of a worldview that these lawyers share that predates their legal education. Aspiring private lawyers, by contrast, are consistently more skeptical of the state. To the extent that they are later coopted by the state, as studies of criminal defense lawyers suggest, such behavior would likely be the result of a desire to endear themselves to investigators and prosecutors in order to ensure further appointments to represent indigent clients.     

指定辩护律师作用之实证研究——以委托辩护为参照

对指定辩护律师的作用,现行法的质量标准是"客观职守型援助",而更高的要求是"合理有效性援助"。以D县为个案,通过与委托辩护律师的对比研究发现,指定辩护实践存在"作用阶梯"现象。从定量角度分析,指定辩护律师在庭审中表现明显不如委托辩护律师,后者相对积极;指定辩护律师在案件定性方面作用不大,较之委托辩护略有不如。而从司法人员的评价出发,指定辩护律师发挥的整体作用也不及委托辩护律师。究其原因,指定辩护律师介入诉讼时间过晚、刑事法律援助经费保障不充分、指定辩护质量监控机制偏于形式化是主要影响因素。进一步加强指定辩护律师的作用、提高其辩护效果,很大程度上也取决于这些内、外因素的调整与变化。此外,确立适当的改革目标也是不可或缺。     

The Right to Counsel in Juvenile Court: The Conundrum of Attorneys as an Aggravating Factor at Disposition

In re Gault provided procedural safeguards in juvenile courts, including the right to counsel. Decades later, judges continue to resist appointing lawyers. And, when they do appoint counsel, lawyers appear to be an aggravating factor when judges sentence youths. In 1995, Minnesota enacted law reforms, including mandatory appointment of counsel. As a cost‐saving strategy, the law also converted most misdemeanors into status offenses and restricted judges’ sentencing authority in order to deny juveniles a right to counsel. This study compares how juvenile courts processed 30,270 youths in 1994—the year before the changes—with how they processed 39,369 youths in 1999 after the amendments. We assess changes in appointment of counsel and their impact on sentencing practices. We report inconsistent judicial compliance with the mandate to appoint counsel and a positive decrease in the number of youths removed from home.     

The Effects of Changes to Legal Aid on Lawyers' Professional Identity and Behaviour in Summary Criminal Cases: A Case Study

This article explores the effects of changes to legally aided representation on criminal cases in magistrates' courts according to data collected in an area of south‐east England. I consider the political factors that motivated changes to legal aid and suggest how these issues affecting lawyers' understanding of their role, and how that understanding affects the relationships between defendants, lawyers, and the magistrates' courts. I argue that the research indicates a potential relation between solicitors' risk‐taking behaviour in obtaining funding and the reintroduction of means testing: remuneration rates affect the service that defendants receive and the reintroduction of means testing decreased efficiency in summary criminal courts. Ultimately, I argue that changes to legal aid funding have increased lawyers' uncertainty about their role, leaving them torn between acting efficiently and providing a good level of service.     

High‐End Demand: The Legal Profession as a Source of Judicial Selection Reform in Urban China

Most studies of comparative judicial politics suggest that judicial autonomy emerges from democratic competition, but despite its authoritarian political system, China has introduced reforms that increase merit‐based competition, transparency, and modest professional autonomy in local courts. Variations in judicial selection procedures across urban China reflect differences in local markets for professional legal services: when mid‐ranking judges can easily find lucrative local employment as lawyers, court leaders strategically reform appointment and promotion mechanisms to retain these young, but experienced, judges. These findings are based on nearly fifteen months of in‐country fieldwork, conducted between 2012 and 2014, including forty‐nine interviews with judges across three different cities: Shanghai, Shenzhen, and Chengdu. Employing the subnational comparative method, this article not only builds theory regarding the legal profession's role in authoritarian states, but also offers new empirical detail regarding the selection, performance evaluation, and behavior of judges in urban China.     

Against the Grain: Therapeutic Judging in a Traditional Family Court

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem‐solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem‐solving techniques can be utilized in traditional courtrooms.     

Criminal defense and judicial sentencing in China's death penalty cases

Drawing upon 503 cases of violent and drug crimes involving the death penalty from three intermediate courts in China, this study explores various defense arguments, their acceptance rates, and factors that influence judicial sentencing. Our findings reveal that offenders’ post-crime good behaviors are most likely to be accepted by the court, thus helping offenders obtain suspended death penalty. In contrast, being charged with multiple violent crimes and the weight of narcotics in drug crimes are two significant factors related to an increased likelihood of receiving immediate death penalty. This article provides more empirical evidence about mitigating and aggravating circumstances considered in capital sentencing, and supports that private lawyers are not different from court appointed lawyers in China's capital defense. China's current system seemingly leaves little room for defense lawyers to make creative contributions.     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.     

Judicial discretion and sentencing disparity in adult felony courts in Israel

This study focuses on a series of legal, extralegal, and systemic variables presumed to affect the workings of criminal-justice systems. These variables are employed first to analyze the decision of the court to refer defendants for presentence investigation when such a referral is not mandatory, then to examine how these referrals, once made, influence disposition. The relationship of legal representation to disposition is also explored.The findings contradict conventional wisdom regarding the advantages to defendants of legal representation and of presentence reports. Lawyers do not appear to influence either referral or sentencing. The presentence reports are requested by judges seeking to individualize their sentencing decisions, but this process of individualization is as likely to result in harsher sentences as in greater leniency.     

REPRESENTING RESPONDENTS UNDER NEW CIVIL COMMITMENT STATUTES: An Analysis of Counsel's Role In and Out of the Courtroom

Using quantifiable attorney behavior measures, instead of outcome measures, both before and during court hearings, this study attempts to evaluate legal representation under reform civil commitment procedures. Counsel representing involuntary commitment respondents full time were well prepared. Court appointed counsel, though better prepared than reported in studies done prior to reform, did not fully investigate their cases. Lack of adequate preparation was associated with a passive role and a non adversary position in court.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

民初律师惩戒制度论析——以惩戒案例为中心

律师惩戒制度对维持律师队伍的道德水准和专业素质起着规范和监督作用.在本质上这一制度反映出律师行业的自治性和国家对这一行业监督、管理和控制的互动关系.民初北洋政府时期在律师惩戒领域实行的是两级两审制:由高等审判厅推事组成的律师惩戒会是初审机构,由大理院推事组成的复审查律师惩戒会是复审机构.这一时期的律师惩戒事宜几乎完全被司法机构所垄断,律师公会被排除在外.就制度渊源而论,北洋时期的律师惩戒制度是对大陆法系中日本制度的借鉴,而有别于德国的相关制度.     

Ways of Improving State Guidance of Advocates

Collegia of advocates [advokaty] in the USSR are self-governing public organizations of professional lawyers, voluntarily associated, whose purpose is to provide defense services during the preliminary investigation and before the court, representation in civil cases in court and before the arbitration system, and other kinds of legal help to citizens, enterprises, institutions, and organizations. The collegia of advocates are social organizations of the independent type, occupying an important place in the system of political organization of Soviet society.     

The right to counsel in juvenile court

Research Summary The U.S. Supreme Court in In re Gault granted delinquents the right to counsel in juvenile courts. Decades after Gault, efforts to provide adequate defense representation in juvenile courts have failed in most states. Moreover, juvenile justice administration varies with structural context and produces justice-by-geography. In 1995, Minnesota enacted juvenile law reforms, which include mandatory appointment of counsel. This pre- and post-reform legal impact study compares how juvenile courts processed youths before and after the statutory changes. We assess how legal changes affected the delivery of defense services and how implementation varied with urban, suburban, and rural context. Policy Implications We report inconsistent judicial compliance with the mandate to appoint counsel. Despite unambiguous legislative intent, rates of representation improved for only one category of offenders. However, we find a positive reduction in justice by geography, especially in rural courts. Given judicial resistance to procedural reforms, states must find additional strategies to provide counsel in juvenile courts.     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

Defending the Accused: The Impact of Legal Representation on Criminal Trial Outcomes in Victoria,Australia 1861–1961

Access to legal representation by accused felons was entrenched as part of the adversarial system from the early nineteenth century, but a substantial minority of defendants remained undefended at superior court level well into the twentieth century. Using a sample of criminal trials collected across a crucial hundred-year period that saw the development of incipient legal assistance schemes, this article seeks to examine what effect the presence of defence counsel had on individual trial results. It is shown that there was a significant association between defence status and a variety of outcomes, including pleas, verdicts, trial length, bail status and sentencing. This relationship was to some extent affected by the specific offence with which the accused was charged, but remains evident across various other factors, including defendant ethnicity, sex, occupation and age, and lawyer assigned to the case. The results suggest that representation was highly desirable for defendants throughout this period.     

Socializing Distrust of the Justice System through the Family in Juvenile Delinquency Court

Juvenile delinquency courts in the United States generally require parents to attend all court hearings, but little is known about how parents' experiences in the court process affect their discussions of the justice system with their court‐involved children. Using multiperspectival and longitudinal data combining observations with interviews of parents and youth in two courts, this research finds that many parents discuss the legal process in negative terms with their children when parents are outside the presence of legal authorities. This research adds to the literature on legal socialization by examining how parents' perceptions of law and their experiences with the court become part of the socializing content provided by parents to their court‐involved children. Creating a more meaningful role for parents in the juvenile justice process may potentially lead to more positive discussions of the court process between parents and juvenile defendants.     

COMMENTARY ON "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:"

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.