PROSECUTORS, PUBLIC DEFENDERS, AND THE AMERICAN ADVERSARIAL SYSTEM
Timothy Patrick Hennessy
B.A., University of California, Davis, 2006
THESIS
Submitted in partial satisfaction of
the requirements for the degree of
MASTER OF SCIENCE
in
CRIMINAL JUSTICE
at
CALIFORNIA STATE UNIVERSITY, SACRAMENTO
FALL
2010
PROSECUTORS, PUBLIC DEFENDERS, AND THE AMERICAN ADVERSARIAL SYSTEM
A Thesis
by
Timothy Patrick Hennessy
Approved by:
__________________________________, Committee Chair
Yvette Farmer, Ph.D.
__________________________________, Second Reader
Sue C. Escobar, J.D., Ph.D.
____________________________
Date
ii
Student: Timothy Patrick Hennessy
I certify that this student has met the requirements for format contained in the University
format manual, and that this thesis is suitable for shelving in the Library and credit is to
be awarded for the thesis.
__________________________, Department Chair ______________________
Hugh Wilson, D.P.A.
Date
Division of Criminal Justice
iii
Abstract
of
PROSECUTORS, PUBLIC DEFENDERS, AND THE AMERICAN ADVERSARIAL SYSTEM
by
Timothy Patrick Hennessy
Public defenders being equally effective at gaining acquittals for defendants when
compared to private counsel has allowed for an assumption that the public defender, and
the promise made in Gideon v. Wainwright (1963), is working. But what does this
acquittal rate tell us about the public defender office? Sadly, the comparison does not tell
us much. The effectiveness of a public defender can only be truly determined by using a
comparison to its counterpart in the adversarial system, the prosecution. In order for our
public defender office to be deemed adequate or effective, it must be found to parity the
prosecution, not to be an equivalent, or better than privately obtained counsel.
This research set out to determine the parity that exists between the public
defender’s office and district attorney’s office. It attempts to do so in a way that
accounted for the cooperative nature of the work these two sides do, by comparing them
as two distinct agencies, rather than simply using case outcome analysis, which has been
the standard for the small amount of research that exists on this topic. The population
used for this study consists of all of the public defenders and district attorneys employed
in the County of Sacramento, California. This was a total of 240 attorneys, with 160
working for the district attorney, and 80 working for the public defender. The research
concludes that as far as education and experience are concerned the public defender and
prosecution are very similar, with some slight advantages going to the public defender.
While this does not mean the public defender is equally situated with the prosecutor as
far as resources, funding, and public perception, they are equal when looking at the
variables of education and experience.
_______________________, Committee Chair
Yvette Farmer, Ph.D.
_______________________
Date
iv
DEDICATION
This is for Mom, Dad, Kevin, Gilly, Linsee, Dr. Farmer, Dr. Escobar, Donna
Vasiliou and everyone at California State University Sacramento, The Honorable Earl
Warren, and to all those who were a part of “C Street”.
v
TABLE OF CONTENTS
Page
Dedication………………………………………………………………….…………………… v
List of Figures.............................................................................................................................vii
Chapter
1. INTRODUCTION………………………………………………….....…………………….1
Purpose of the Study …………………………………………….……………………..1
2. LITERATURE REVIEW…………………………………………………………………...7
The Public Defender……………………………………………………………………7
The Prosecution………………………………………………….……………………20
Administration of Justice and the Court Room Work Group.......................................26
3. METHODS...........................................................................................................................32
Study Population............................................................................................................32
Variables........................................................................................................................32
Study Design…………………………………………………….…………………….33
4. FINDINGS............................................................................................................................41
5. DISCUSSION AND CONCLUSIONS.........................................................................…...47
References………………………………………………………. ……………………………52
vi
LIST OF FIGURES
Page
1.
Figure 1 Ranking of school where J.D. was obtained ..……………..…..........42
2.
Figure 2 Ranking of both undergraduate and law ..…………………….…....43
3.
Figure 3 Where J.D. was obtained .…………………………………….….…44
4.
Figure 4 Years of experience …………………..…………………….……..45
5.
Figure 5 Experience and degree ……………………………………………..46
vii
1
Chapter 1
INTRODUCTION
Purpose of the Study
On March 18, 1963, the Supreme Court handed down a decision which would
forever change the criminal justice system. The court, led by Earl Warren, made the
landmark decision that granted an indigent defendant’s right to counsel in both federal
and state courts. The court ruled that states that did not provide counsel for those who
could not afford it would in fact be violating the Sixth and Fourteenth Amendments.
The court’s decision stated that the right to counsel was a fundamental right and
essential for a fair trial. In all instances where an individual faces the loss of liberty, they
must not be made to face their accusers alone in court. In the court’s key reasoning,
Justice Hugo Black stated that the fact that the “government hires lawyers to prosecute
and defendants who have the money hire lawyers to defend are the strongest indications
of the widespread belief that lawyers in criminal courts are necessities, not luxuries."
(Gideon v. Wainwright, 1963, para.4).
It is commonly held that of all rights, the right to counsel is the most essential as it
is “the one right which protects, and makes comprehensible to the individual, his other
rights” (Schaefer, 1956, p.8). Yet even with the importance of counsel understood, the
American Bar Association (ABA) has routinely announced that the promise put forth in
Gideon has been broken, as public defender offices continue to be underfunded,
understaffed, and overworked. According to the ABA (2004), this is something that is
largely due to politics, as politicians are scared of looking soft on crime. If a politician
2
were to come forward on a platform to increase the budget of a public defender office, he
or she would not be seen as trying to improve the justice system, but rather as being “procrime.”
Lacking any support from the political sector, it is surprising how effective the
nation’s public defender system is, especially when considering the task they are handed
and the resources they are given to complete it (Levine, 1975). Literature has routinely
shown that the public defender is equally as effective as privately obtained counsel in
terms of getting a client’s case dismissed (Wice, 2005). In fact, the public defender
system is probably even far superior to private counsel at this, considering the fact that
most individuals do not obtain private counsel in cases they feel they have no chance of
winning, as they don’t want to “waste” their resources (Hoffman, 2007). Public
Defenders then are not only getting cases dismissed at the same rate as privately obtained
counsel, but doing so with tougher cases.
While the public defender has been deemed competent by the literature (using
cases dismissed as the benchmark), they are still perceived is being very inept by the
public and other legal professionals (Levine, 1975). They are seen as being the bad guy
who defends the scum of society, inexperienced and ill-fitted for any other job in the law
field (Getty & Presley, 1974; Weiss, 2003). They are viewed as shysters, whose only
interest is assisting the prosecution and judge in clearing the docket, not in protecting the
rights of their clients (McIntyre, 1987). This criticism keeps many from coming to the aid
of the public defender office politically, and blankets the entire profession (Mantel,
2008).
3
After nearly half a century since the Gideon decision, literature has reached a
verdict on the public defender system in the United States that it is a disadvantaged group
of negatively perceived individuals, who are actually quite effective at getting cases
dismissed (Wice, 2005). The condition of the public defender system seems to be
accepted because they are “effective.” Aside from the ABA routinely pleading for the
problems the public defender system faces to be seriously addressed, the consensus
seems to be a sigh of relief that the public defender system is “working,” considering its
disadvantages. With little to no research done on the public defender in the last decade, it
seems that this is how it will remain (Wice, 2005).
However, this is unacceptable. To begin, no issue in any field of academia or in
the legal profession should ever be shelved, or considered to have reached a concrete
conclusion, especially when the only reason to do so seems to avoid political fall-out, or
the inconvenience of addressing what may be found. With that type of approach, this flat
world would still have the sun revolving around it. Secondly, even if the role that politics
plays in the lack of support for public defender offices is held as a constant, and the
negative perception of public counsel is explained by the nature of their work defending
criminals, the findings that public defenders are equally effective as private counsel at
getting cases dismissed, tells us little about the condition of our public defender office.
The fact that public defenders are as equally effective at gaining acquittals
compared to private counsel has allowed for an assumption that the public defender
office is working. But what does this acquittal rate tell us about the public defender
office? Sadly, the comparison does not tell us much. The effectiveness of a public
4
defender can only be truly determined by using a comparison to its counterpart in the
adversarial system, the prosecution. In order for our public defender office to be deemed
adequate or effective, it must be found to parity the prosecution, not to be an equivalent,
or better than privately obtained counsel.
Our system has one side that promises to prosecute those who harm society, and
one side that promises to defend the rights of those who are prosecuted. This is the bare
minimum, the promise guaranteed by our justice system. While private counsel can be
obtained, it is an option, outside of the scope of what our system guarantees. Private
counsel’s effectiveness is not important when determining how well government
provided defense operates, as it only tells how the prosecution performs against privately
obtained defense, when the issue is how well does the prosecution perform against state
provided defense. Comparing the public defender to the counterpart that exists as the
district attorney is the only comparison that would give any insight to the effectiveness of
our state sponsored adversarial system, as it would compare the prosecution and public
defense, what in theory is supposed to be its equal and in parity of one another.
In order to determine this, it would be incorrect to use acquittal percentages as the
measuring stick for public defender effectiveness. A public defender office with a high
rate of acquittals does not indicate it is an adequate defender. The idea that the public
defender’s role is to merely gain acquittals for their clients is an incorrect understanding
of their role in the adversarial process and plays a large part in why they are perceived so
negatively. The public defender’s role is to defend the rights of an individual, ensure they
have a fair trial, and call into question any tactics used by the government that may have
5
extended beyond what is granted to them. Using the number of acquittals, lengths of
sentences, or any other statistical data based on case outcomes, while it may tell us
something about sentencing patterns, tells us little about the quality of our state sponsored
adversarial system.
A true “adversarial” system, a model of combative justice upon which all of our
rights are predicated upon, does not truly exist within the American criminal justice
system. Our “adversarial” system today, mainly due to the increase of plea bargaining
and the crime control model approach, relies more on two sides capable of seeing eye to
eye on a case rather than two combatants ready to do battle in a court of law (Blumberg,
1970). It is a workgroup, working cooperatively to achieve the administration of justice
through the processing of cases (Eisenstein & Jacob, 1977). Yet while America does not
always conduct the purest form of adversarial justice, the American legal system does
still operate a type of adversarial justice, and it makes a mockery of the system to allow
inequality to exist between the two sides (Smith, DeJong, & Burrow, 2003).
Therefore, using only numerical data based on case outcomes is an ineffective
way to measure the parity that exists within our system. While literature has been quick
to deem public defender offices as being effective if they have high acquittal rates for
their clients, could this data also be demonstrating a poor district attorney office, who are
not properly screening cases, or are not building strong cases? Could not a high acquittal
rate demonstrate nothing about the public defender or prosecution, but rather that there is
poor police work being done in that given county or district?
6
Using case outcome data to judge either side of our justice system would only be
effective if a true adversarial system was present. In order to determine if the two sides
are equal in the level of performance they are capable of providing, a comparison must be
done of the two sides that participate in our criminal justice process. Determining the
level of equality in our justice system is essential, as it is the only arena of our society
where inequality is universally unexpected and unaccepted (Smith, DeJong, & Burrow,
2003). Yet using data on case outcomes to do so, as if the system is a true adversarial
system in which every case is decided by the ability of the best “combatant,” is an
incorrect model.
We must determine the equality of the two sides by the attributes of the
individuals that operate in the position of public defender or prosecutor. This research
will attempt to discover if levels of education and experience are equal between the
Public Defender and District Attorney. Determining the experience and education of
those who stand for the state and who stand to defend another from it, will grant a more
complete evaluation of the justice system. It will allow for the level of parity that exists
within our adversarial system to be determined, as well as how close we have come to
fulfilling the promise put forth in the Gideon decision.
.
7
Chapter 2
LITERATURE REVIEW
The Public Defender
The American legal system has always recognized (albeit not always enforced)
that adequate defense is essential for a fair trial. While the questions of “when” and
“where” counsel in the justice system should be provided have been argued, the
importance of providing counsel has always been acknowledged. As Justice Black stated
in the Gideon decision “the right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it is in ours”
(Gideon v. Wainwright, 1963, para.4).
While the decision put forward from Gideon v. Wainwright (1963) granted
defense for the indigent in nearly all arenas of criminal law, it was merely the last of
many steps that has led to ensuring defense for the accused. Since the birth of the nation
America has been compelled to ensure the right to counsel. With a historical disdain for
abuse of state power, the colonies were quick to cast aside the rule found in common law
in which it was believed the crown would not charge an individual unless ample evidence
was present, and therefore the judge would be adequate to protect the rights of the
accused. The colonies understood the importance of counsel when facing criminal
charges, and of the original thirteen colonies, twelve established the right for the accused
to employ counsel (Beaney, 1955). Since the formation of the union, every state that has
joined the union granted the right to counsel into their fundamental laws. They
understood that life, liberty, and the pursuit of happiness depended on the ability to
8
defend oneself against accusations in the court of law. In a sense, this right is a
cornerstone of the republic (Smith, 1919).
Yet while the necessity of the right to counsel was being acknowledged early in
American legal systems, guaranteeing the right meant very little if only certain
individuals could afford this right. There is quite a difference between being granted the
right to counsel, and having the means to obtain counsel. It was in fact an empty promise,
a paper right only, if the accused was indigent and unable to afford counsel (Smith,
1969).
In 1853, over a hundred years before Gideon, the Indiana Supreme Court stated
that providing defense for those who cannot afford it was the responsibility of any
civilized society. The court stated in the Webb v. Baird (1853) decision that it should
“not to be thought of in a civilized community for a moment that any citizen put in
jeopardy of life or liberty should be debarred of counsel because he is too poor to employ
such aid” (para. 18). While this decision was the first to address those who would come
before the law with no means to access their right to counsel and begin to set a precedent
for indigent defense, it had not implied that there was any constitutional right to a
publically funded defense, but rather to do so was the proper actions of a “civilized”
nation.
It was not until the U.S. Supreme Court’s decision in Johnson v. Zerbst (1938)
that the constitutionality of indigent defense began to be addressed. In the Johnson v.
Zerbst (1938) decision, the Supreme Court ruled that by not providing defense counsel,
federal courts were indeed violating an individual’s right to counsel guaranteed by the
9
Sixth Amendment. In the opinion Justice Black (1938) stated that “Since the Sixth
Amendment constitutionally entitles one charged with crime to the assistance of counsel,
compliance with this constitutional mandate is an essential jurisdictional prerequisite to a
federal court’s authority to deprive an accused of his life or liberty” (para. 10).
While the decision only applied to those in federal cases, it established the
precedent that failing to provide counsel when necessary is in violation of the
constitution. It would be this decision that would lead to the court granting counsel to
indigent defendants in all state felony cases (Gideon v. Wainwright, 1963) and later all
instances where loss of liberty was a possible outcome (Argensinger v. Hamlin, 1972).
But although Federal and State governments were not yet willing to extend the right to
counsel to those who could not afford access, there were individuals that were dedicated
to providing counsel for the indigent.
While it may have taken almost 200 years for the constitutionality of the indigent
defendant’s right to counsel to be fully realized in the American legal system, it did not
mean that its importance was not fully comprehended by others outside the legal system.
Many agencies were founded in order to provide counsel for those unable to provide for
themselves, well before the court had granted full rights to the indigent defendant. The
first of these was the Legal Aid Society, established in New York City in 1876 by
Edward Salomon (Funding Universe, 2009).
The Legal Aid Society was formed initially to assist German immigrants whose
lack of English left them vulnerable to exploitation. Edward Salomon, who was a
practicing attorney and counsel to the Prussian government, formed the Legal Aid
10
Society to assist German immigrants who seemed to be having trouble assimilating into
American society. Salomon saw that the Germans had particular trouble in America
because of their lack of English, a hurdle that the other large immigrant population at the
time, the Irish, did not face (Funding Universe, 2009).
In 1889 Salomon was succeeded by Arthur von Briesen whose first order of
business was to eliminate the restriction of only providing assistance to those of German
heritage (National Legal Aid and Defender Association, 2009). A decision that was
influenced by the success of the Ethical Culture Society in Chicago, an organization that
had been established in the prior year and focused on legal assistance for the poor,
regardless of nationality, race, or sex (National Legal Aid and Defender Association,
2009).
The Legal Aid Society saw their mission as not merely a pursuit to provide justice
to the disadvantaged, but to keep the disadvantaged from becoming the enemy to that
which has disadvantaged them (Smith, 1919). When an individual is denied justice, they
feel helpless to the power of the system. This turns to contempt for law, disloyalty to the
government, and plants the seeds of anarchy (Roosevelt, 1917). The Legal Aid Society
saw access to counsel as not only a necessity in order to conduct a fair trial, but to deny
the right threatened the very core of what America values.
Then director Lyman Abbot, in a speech given at the twenty-fifth anniversary of
the society in 1901, best explained this mission of the Legal Aid Society as follows:
If ever a time shall come when in this city only the rich man can enjoy law as a
doubtful luxury, when the poor who need it most cannot have it, when only a
golden key will unlock the door to the court room, the seeds of revolution will be
11
sown, the firebrand of revolution will be lighted and put into the hands of men,
and they will be almost justified in the revolution which will follow ( p. 32).
Today the Legal Aid Society of New York continues to not only protect the rights
of the indigent but see what they are doing as preserving of the union. They now have a
roster of nearly 900 lawyers, backed by a support staff of 800 and an annual budget of
approximately $125 million. The Society is the largest legal employer in the New York
metropolitan area handling some 300,000 cases each year. The Society’s criminal
practice is New York City’s primary provider of indigent defense services, representing
about 90 percent of all children who appear before the city’s family court (Funding
Universe, 2009).
While the Legal Aid Society was the first organization founded to provide legal
assistance to indigents, the first government agency to ensure the right to counsel by
providing that counsel to those who could not afford it was the Public Defender office of
Los Angeles County. In 1914, nearly fifty years before the Gideon decision, Los Angeles
County was the first to establish a criminal defense office supported by public funds. This
support by the county treasury is what coined the term “Public Defender” (Smith, 1919).
Los Angeles County did not come to create the Public Defender office just by chance, but
rather the persistence of Clara Shortridge Foltz (National Legal Aid and Defender
Association, 2009).
Clara Shortridge Foltz, who was the first woman admitted to the California State
Bar, was also the first to propose the idea of a publicly funded defense counsel for
indigents. She saw a system where individuals were pleading guilty because it was
12
cheaper than purchasing defense counsel, and those who would refuse to suffer the
punishment of a crime they did not commit would become ruined by legal costs. She
proclaimed that the current process of forcing inexperienced attorneys to represent
indigent defendants pro bono was unjust, irresponsible, and cause for inequitable results
in California’s criminal justice system (Foltz, 1897; Goldman, 1974; Shortridge, 1893).
Her lobbying effort not only resulted in the creation of the first Public Defender office in
the nation, but also the adoption of a Public Defender office to the California Sate Courts
in 1921.
What is interesting is that Clara Shortridge Foltz voiced similar concerns as her
contemporaries in the Legal Aid Society did regarding the result of the failings of our
criminal justice system. She too spoke of the enemy to society that is created by the
disenfranchisement that occurs when individuals go without justice because they were
unable to secure counsel. It kills their ability to be a patriot and to the love their country,
replacing it with nothing but bitterness (Foltz, 1897).
The fight to ensure the right to counsel is built much more on just ensuring the
rights granted in the constitution, but an urgency to protect the heart of those who come
before the law; to maintain their belief in the system, and connection to the larger society.
They saw ensuring that the right to counsel not only fulfilled what is promised in the
Constitution, but protected the patriotism of the society that was built on it. They
understood that while in order for a democracy to exist, it must ensure equality and
justice for all of its members, even the purest of democracies is prone to ignore the
interests of its minorities and poor (Stuntz, 1998). To forego this, or to promise these
13
rights without ensuring they are granted, is to engage in systemically destroying the
essence of a democracy (Getty & Presley, 1974; Goldman, 1974; Smith, 1919).
The right to counsel does not guarantee the accused the access to obtain counsel,
but rather the assurance that counsel will be present whether the accused can afford it or
not. Counsel is essential in order for a fair trial to take place. In fact counsel is the most
essential right as it affects one’s ability to comprehend and utilize all other rights at their
disposal (Schaefer, 1956). How can an individual, a layman to the law, be expected to
navigate the channels of our legal system? They cannot. Individuals spend three years in
rigorous study in order to obtain a Jurisprudence Degree, then must pass a BAR exam,
and obtain hours of experience in order to come to be considered even adequate. Why
then would it ever be considered that the accused could go without adequate counsel?
The layman, even who is well prepared and intelligent, would fail to make crucial
pre-trial motions, gather and exam essential evidence, select a jury properly, review
police reports and criminal histories, call expert witnesses, properly cross-examine
witnesses called by the prosecution, and make timely objections, without extensive prior
training and experience (Wice, 2005). Even Earl Gideon, in his landmark case, was said
to have been well prepared and well read on the procedure of the court room, yet was still
no where even close to adequate in his own defense (Gideon v. Wainwright, 1963).
While it is clear that the Public Defender plays a vital and necessary role, they are
not seen as the defenders of Constitutional guarantees, but rather as the defenders of
murderers and rapists (Getty & Presley, 1974). They are not an equal part of the
adversarial system, but an opposition to the “good guys,” and acting in the interest of
14
those who have harmed society (Getty & Presley, 1974; Weiss, 2003; Wishman, 1991).
They are perceived as low-grade practitioners, ineffectual and incompetent, who only do
what they do because they are unable to find any other legal field which would employ
them (Weiss, 2003).
While it is interesting that a position so essential seems to be seen in such a
negative light, it is more important to look at how the public defender compares to the
prosecution, than how the public defender is perceived by the public. The parity that
exists is what determines the quality of provided counsel, not how their moral character is
perceived by others. Whether the perception is based on truth, or just a reaction to a
position that is handed the task of protecting the rights of societies’ lowliest, must be
determined. It must be remembered that the Constitution guarantees counsel that is
effective for the indigent, not counsel that is seen as “popular.”
Much as it was to promise the right to counsel without ensuring it was provided, it
would be even more of a tragedy to provide counsel and not monitor their effectiveness
and quality. However, establishing that criteria is not an easy task considering the courts
left no specifics, and the diversity of the decentralized American criminal justice system
leaves a wide array of defense systems to evaluate. Since the Gideon decision, the most
widely recognized set of standards for defense services is the American Bar Association’s
Ten Principles of a Public Defense Delivery System, which stemmed from several public
hearings. The findings from the first hearing in 1982 found that public defenders were
inadequately trained, underfunded, and lacking proper investigatory capabilities
(American Bar Association, 1982). The findings from a second hearing in 1992, and a
15
third in 2002 (in which the Ten Principles were finalized) found that nothing had changed
since the initial 1982 investigation and that in short, the promise of the Gideon decision
has gone unfulfilled (Mantel, 2008).
While the ABA used criteria such as caseload, investigation resources, and
funding to evaluate Public Defender offices, the majority of academic studies aiming to
evaluate indigent counsel do not use these as their criteria. Most academic studies
conducted evaluate public defenders by comparing them to those that practice as private
criminal defense attorneys. The understanding being that by measuring both the
government’s provided defense and privately obtained defense against a constant, the
government prosecution, the effectiveness of public defense can be determined.
The largest of these studies comparing public and private counsel was conducted
by the Justice Department in which the success rate of private and public defense
attorneys was looked at in the nation’s seventy-five largest cities. What was found was
that private and public counsel were nearly identical in their percentages of clients who
were acquitted, found guilty, or had their cases dismissed. The only difference was that
private counsel would see their clients earlier in the proceeding and more often (U.S.
Justice Department, 2000).
A similar study was conducted by Robert Herman, Eric Single, and John Boston
(1977), in which public and private defense counsel were compared in Los Angeles, New
York, and Washington D.C., with nearly identical findings as the Justice Department
study. They found in all three of these large cities that public and private defense
counsels were nearly identical in how their cases were disposed by the court. However,
16
they attributed this mostly to the way in which the criminal justice system works with the
court in applying similar sentences to similar cases, and the lack of power an attorney
actually has in determining outcomes, rather than anything to do with the quality of
counsel (Herman, Single & Boston, 1977).
An article attempting to create a institutional theory model of public defenders by
Roy B. Fleming (1989), a professor of political science at Texas A&M University, noted
that of the 37 studies conducted from 1965-1986, the unanimous finding was that there
was no qualitative difference between privately obtained defense attorneys and public
defenders, with any differences seemingly serendipitous. The 37 studies consisted of a
wide array of approaches involving the quantitative, qualitative, bivariate, and
multivariate analyses of single and multiple jurisdictions. Fleming did note that of the 37
studies, none accounted for the political atmosphere of the jurisdictions that affect how
public defenders can operate, nor do they investigate more complicated factors than case
outcomes and sentencing rates.
Paul Wice (2005), a professor of political science at Drew University in New
Jersey, found that differences between private and public defense counsel disappears
when controlling for the type of offense. However, the study did find that a sentencing
variation exists in which a larger proportion of those obtaining private counsel received
suspended sentences. This variation is considered to be caused by the backgrounds and
socioeconomic statuses of wealthier clients, who in having their first offense, afford and
obtain private counsel so as not to “risk anything” (Wice, 2005).
17
The differences found in the sentence received by those with private or public
counsel have also been accounted for by clients taking a free market approach to their
defense. If a client feels they have a chance of beating the charge, they will invest all they
have to avoid punishment. If the client feels the case is a lost cause, and they have little or
no chance of not being found guilty, they will not “waste” their money, and instead opt
for public counsel. This results then in public defense having to take on cases that are
much less winnable than the cases brought to their counterpart in the private sector,
which could account for conviction and sentencing differentials (Hoffman, 2007).
It is apparent then that the perception that public defenders are inept and
ineffective is incorrect using these criteria. They are in fact conscientious and effective
advocates, which is surprising considering their caseloads and lack of resources. While
they may be as effective at gaining acquittals as private counsel, it is important to note
that the perception that their clients have of them, is what differentiates them from private
attorneys. Their clients lack confidence in public counsel, and therefore choose to plea
bargain, rather than go to trial (Levine, 1975).
This lack of confidence that a client has in a public defender is best demonstrated
in an interview carried out by Jonathan Casper (1972) where upon asking the subject if he
had a lawyer in court the subject responded “No, I had a public defender” (p.44). In
reality, the private defender is not anymore adequate than public counsel when looking at
trial outcomes, it is just that public defenders are perceived as being inadequate by
clients.
18
While it seems to be established that the perception of the public defender as
being inadequate when compared to private counsel is false, what is not false is that the
public defender offices across the country are underfunded, understaffed, overworked,
and lacking necessary resources (Mantel, 2008). Only 28 states completely fund their
public defender offices, 3 provide over half the funding, 17 provide less than half, and
two states leave the funding of public defender offices as a sole county responsibility
(Spangenberg Group, 2006). Those offices that are funded by counties and not fully state
funded have smaller budgets, less uniform outcomes, and have far less oversight, which
hurts the quality of counsel provided (Spangenberg Group, 2006). Not only do smaller
budgets result in a lack of funding to hire the necessary amount of attorneys in county
funded offices, which results in higher caseloads, but those localities which take some or
all of the funding responsibility, give little or no authority to state commissions in charge
of their oversight (Spangenberg Group, 2006).
With the current economic climate, those offices that are state funded have begun
to find their budgets targeted by lawmakers looking to balance state budgets during this
recession. This has caused at least two high profile lawsuits in which public defender
offices in Illinois and Kentucky have sued. The lawsuits claim the cuts to their budgets
were so dramatic that it made it impossible to provide adequate defense (Higgins, 2007).
Kentucky and Illinois are not alone, as California, Arizona, Nevada, Florida, Michigan,
Ohio, and Minnesota find themselves in similar budget crises (Mantel, 2008).
The current economic climate cannot alone be blamed for the current condition of
the nation’s public defender offices. Even when state and county budgets are not being
19
faced with a recession, it is hard to find the political will to provide more funding to
public defender offices. This lack of political will largely stems from politicians afraid to
look soft on crime by increasing resources directed to public defender’s office (American
Bar Association, 2004).
This lack of political support is reconciled in the literature, and the field of
criminal justice, by demonstrating the fact that public defenders are as effective as private
counsel at gaining acquittals. This is evident in the fact that little to any research has been
done on public defender effectiveness in the last decade (Wice, 2005). It seems as if the
criminal justice field is content with the fact that although the public defender may not be
as equally equipped as the prosecution, which is a gross violation of the principles of
adversarial justice, they still are as effective as private counsel, and therefore the
adversarial system is alive and well. The problem is using acquittal rates as the criteria to
determine the effectiveness of our state supported adversarial system. It not only
demonstrates a misunderstanding of what a public defender is supposed to be doing, but
adds to the negative connotation that plagues the profession of the public defender.
The objective of the public defender is to defend the rights of the accused, and to
ensure they receive a fair trial. While a public defender should always be trying to
demonstrate the innocence of their client, they must also ensure that the government does
not go beyond the restraints placed upon it by the people in order to demonstrate the
accused is guilty. Their objective is not to simply get their clients acquitted, and that is
why it is ineffective to use acquittal rates as a measuring stick for effectiveness of public
20
defenders. They must be adequately trained and capable of protecting the rights of their
clients.
In order to determine the true effectiveness of our state supported adversarial
system, and if public defense is comparable to the prosecution, then it must be compared
against what it should parity, the prosecution. This comparison should be done using tacit
variables (experience, education, etc.) in order to correctly gauge the quality of the two
sides. How public defenders compare to the prosecution is the only relevant way to
determine how effective our state supported adversarial system is, as they are both the
“guarantees” of the criminal courts.
Comparing public defense to private defense, and using incorrect measures, tells
us nothing about the level of equality that exists between the two sides. Using post trial
win-loss data is also incorrect, as this is a function of mostly plea bargains, which is more
cooperative than adversarial. Win-loss data would only be adequate if the two sides were
operating in a true combative adversarial system, which they are not. It is therefore
essential that the parity of the two sides of our justice system be evaluated using proper
criteria, rather than using outcomes that do not rely on the two sides engaged in a true
adversarial contest.
The Prosecution
While the Prosecution has a much different objective than the Public Defender,
the prosecutor was formed with a similar purpose, to defend the rights of the accused
21
from both the abuses of the king and private party retribution. The prosecution, as a
separate branch of criminal justice, was initially formed in order to prosecute criminal
acts as crimes against the crown, rather than the practice at the time of allowing
individuals to prosecute someone as a private matter, which in reality acted more as a
device for individual vengeance than justice (Grosman, 1969).
King Henry VII acknowledged the perils of allowing private criminal prosecution
stating that “Those laws have been printed ‘in our maternal English tongue’ and are so
available to all; yet they are not put into force unless it be by malice, rancor and evil will.
Better it were they had never been made, unless they should be put in due and perfect
execution…”(Plucknett, 1936, p.126). Although King Henry advocated a public servant
prosecutor, it was never fully realized, as the professional public attorneys that did
practice did so to only prosecute those crimes which pleased the crown and royal family
(Edwards, 1964).
After a long period of abuses of power, the unjust prosecution of heretics, and
finally suppression of the Monmouth rebellion under the reign of James II, a move to
revise the role of the public prosecutor again was underway. The goal was to create
prosecutors which were not solely a tool to the king, but also an agent for the public. The
prosecution was to act on behalf of the king, but not in concert with, a move which was
meant to create a more civilized and enlightened justice system (Mayers, 1964). Although
the push for reform was there, it was not until the creation of the Director of Public
Prosecutions in 1879, and later the passing the Prosecution of Offenses Act of 1985, that
England established a true public prosecutor (Grosman, 1969; OPSI, 2009).
22
While pleas from King Henry VII for a public prosecutor may have fallen on deaf
ears in England, across the Atlantic in the colonies, the importance of establishing a
public prosecutor, and how a just and properly executed prosecution benefits the accused,
were understood. The early Puritans, while they were known more for the persecution of
those who deviated from their strict social codes, were strong advocates of civil rights
and the need to form a separate public prosecutor in order to ensure the preservation of
personal liberties, while still maintaining social order (Erikson, 1966; Larson & Garrett,
1996).
This strange relationship between adhering to strict civil rights codes, while
enforcing laws that today would be seen as completely unjust, can best be embodied in a
1641 piece of literature entitled the “Body of Liberties,” by Reverend Daniel Ward. This
piece of work went on to profess the necessity of nearly every right guaranteed in
America today, and was almost entirely enacted into Puritan law. The work advocated the
right to due process, equal protection under the law, prohibition of torture to extract
confessions, and a need for public prosecutors (Larson & Garrett, 1996).
As early as 1704, nearly all of the colonies had moved away from private
prosecutions and towards a public model. Even though the public prosecution enacted
early on had a strong religious theme with the goal of suppressing vice and immorality,
prosecution adhered to the laws on the books, working mechanically and inexorably on
behalf of the commonwealth (Grosman, 1969; Larson & Garrett, 1996).
With the birth of the nation, so too came the birth of the American prosecutor.
Born out of the same abhorrence for the abuses found in the English system as the right
23
to counsel, and eventually the public defender, the public prosecutor was the foundation
for the American legal system (Grosman, 1969). The office of the United States District
Attorney was legislated in 1789, with the responsibility to prosecute crimes on behalf of
the people under the authority of the United States. At the end of the Civil War, the
federal prosecutors’ office became the Department of Justice, and a public prosecutor to
handle all federal cases was in place (Dession, 1948).
While both the public prosecutor and public defender were created out of the need
to protect the accused, and remedy the ills found in the English common law, the two
have since shared little more than the court room. While the public defender is at a
politically weak and disadvantaged position, with a history of slowly gaining legitimacy
from the Supreme Court, the prosecutor is a politically powerful position that has more
control over life and liberty than any other office (Johns, 2007).
The power of prosecutorial discretion, and the lack of legal restraint on it,
according Daniel Richman of Columbia University, is unparalleled in any other system
(Jost, 2007). The prosecutor’s conduct and decisions are rarely ever challenged unless
blatant abuse is evident, and data on the extent of prosecutor misconduct, and discipline
for it, is non-existent (Gershman, 2007; Jost, 2007). Even when misconduct is identified
by an appellate court, it is rarely ever dealt with as courts are very reluctant to challenge a
prosecutor’s decision, or behavior, let alone punish them for misconduct (Center for
Public Integrity, 2003; Johns, 2005).
A recent study done of appellate court decisions in California demonstrated this
lack of willingness to critique the prosecutor. The study of appellate court decisions
24
found that over a ten year period, of the 1,500 cases brought before appellate courts on
allegations of prosecutor misconduct, 443 ruled that misconduct occurred, and only 53 of
these were overturned (Ridolfi, 2007).
Even the ABA, which has been instrumental in setting standards for the
profession has been timid to critique prosecuting attorneys. Their Model Rules of
Professional Conduct in 1983 as a basis of ethics for attorneys only established one rule,
Model Rule 3.8, for prosecutors. In 2000, they considered looking at the prosecutor more
thoroughly, and expanding on the rules of conduct for prosecutors, but backed down after
receiving heavy pressure from the group in question (Jost, 2007). It was not until 8 years
later that the ABA finally went forward and made their recommendations for a more
ethical prosecutor (ABA, 2009).
Most of the rules the ABA added dealt with the prosecution and the responsibility
they have to divulge evidence to the defense during discovery (ABA, 2009).The
withholding of evidence from the defense has been a major complaint from defense
attorneys and the main finding of prosecutor misconduct (Moushey, 1998). One study of
homicide cases in Chicago found that over a 30 year period, 381 convictions were
overturned due to misconduct which was most frequently the withholding of evidence
from the defense (Armstrong & Possley, 1999).
The prosecutor does face a unique pressure in their position however. Unlike the
public defender’s office, the District Attorney is an elected official. While this does hold
the prosecution responsible to the people for whom they serve, it also makes the position
very susceptible to misconduct, as the focus becomes winning cases to win an election,
25
not to better serve justice (Jost, 2007). Such an example is most evident in the recent
Duke Lacrosse “Rape” Case, where the District Attorney Michael Nifong was disbarred
for improper misconduct after he engaged in a malicious and false prosecution in order to
gain re-election (Jost, 2007).
The position of District Attorney is not only a political position in itself, with the
prosecutor always having a re-election looming, but it is also a stepping stone for those
who have larger political ambitions such as a federal judgeship, Attorney General, or
even Governor (Jost, 2007). It seems that the role of prosecutor has become more about
politics than the service for which they are supposed to provide. A look at the recent
activity from the Justice Department would confirm that more focus is on the political
maneuvers of the attorney general, and the bi-partisanship of the department, than their
ability to serve the nation (Becker, 2007).
This research is in no way suggesting that all, or even most, of those who occupy
the position of prosecutor do so with political ambitions. It is merely highlighting the
stark contrast between the district attorney’s political power and influence and the public
defenders’ lack thereof. The Public Defender is largely without any political influence
and more or less a career suicide for any politician who would come to their aid. The
prosecution, on the other hand, is not only at a political advantage, but is commonly used
as a foundation from which to spring a political career.
Another criticism that may arise is that more effort was spent on portraying the
public defender. While this is true, it is not meant to give any bias to the public defender,
but merely that there is more to discuss about the public defender than the prosecutor.
26
The prosecutor, in a sense, is the constant. The prosecution exists the moment the
government engages in accusing an individual of wrongdoing. There can be no criminal
justice system without the prosecution, as it is the key to the system, without the
prosecution the system does not exist (Gershman, 2007). This is not true for the public
defender office, a relatively new phenomenon to the American justice system. It is for
this reason that more effort was placed on laying out the role of the public defender.
Administration of Justice and the Court Room Work Group
The idea of an adversarial justice system, with both the prosecution and defense
on even ground in the court room battling for the truth, has been the idea for a legal
foundation in U.S. courts since before the last shots of the American Revolution had been
fired. The court room combat between the prosecution and defense before a neutral third
party, be it a judge or jury, is the hallmark of the American system (Roberts & Stalans,
2000) and what the public has come to equate with truth and justice, the embodiment of
what it is that America stands for (Strick, 1977). The adversarial system and its
importance to the public is not only an example of America’s core beliefs, but it acts to
confirm the American identity (Goodpaster, 1987).
While the belief has always been that we have a strictly adversarial process in the
United States, the American criminal justice system has seen courts throughout the U.S.
abandon aspects of the adversarial process (Landsman, 1984). Yet the incorrect
assumption that our criminal justice system is truly adversarial is made (Smith, Dejong &
Burrow, 2003). Although the courtroom during a criminal trial may have a prosecutor
27
and a defender, they are not truly engaged in the type of battle that the adversarial system
depends on, but rather coming to an agreement on the fate of an individual (Blumberg,
1970).
It would be incorrect to state that a true adversarial process never occurs, as it
does, but only in a small percentage of cases which are high profile. The day-to-day grind
of the criminal justice system, with plea bargaining and high case loads, finds the system
operating in unison, cooperating in a process, rather than as combatants (Gottfredson &
Gottfredson, 1988). Conflict between the two sides is the exception rather than the rule
with both sides engaged in the administration of justice rather than the adversarial
discovery of justice (Walker, 2006).
The different agents that operate within the courtroom have shared common
interests, shared incentives, and an overall drive to dispose of cases (Eisenstein & Jacob,
1977). The court room workgroup, as labeled by James Eisenstein and Herbert Jacob
(1977), utilizes cooperation and mutual dependence on one another to handle the heavy
case loads they are confronted with. The public defender does not see the prosecutor as
an adversarial opponent, nor does the prosecutor see the public defender in that manner,
but they see each other as part of a cohesive unit whose objective is to dispose of cases.
The reason that the courtrooms across America have found themselves with cohesive
workgroups, instead of the adversarial opponents, is because of the immense amount of
cases the court must dispose of on a daily basis.
Max Weber stated that a bureaucratic organization, like that of the courtroom, acts
in a rational manner in order to efficiently and effectively attain its goals (Andreski,
28
1983). Yet, according to Robert Michel’s (1915) theory of Organizational Maintenance,
when an organization finds itself unable to pursue its formal goals it will rationally strive
to maintain its relevancy as an organization and begin to develop, and pursue, informal
operating goals. This Organizational Maintenance theory could be used to explain the
cause for this shift from adversarial justice, to administrative justice (Michel, 1915).
The formal goal for the courtroom is to determine the guilt or innocence of an
individual through the rigors of the adversarial process. Yet the staggering number of
cases filling the court’s dockets have caused the courtroom to forego the formal objective
of maintaining the values of the adversarial system, and pursue the informal operational
goals of disposing of cases. This has created a change in the dynamics of the courtroom
where the public defender and prosecutor find it unproductive to be opponents of one
another, as forming a cohesive group would be the rational choice in order to achieve the
newly developed operating goals of case disposition.
It has been argued that the prosecutors and public defenders, although acting as a
cooperative workgroup, still engage in the adversarial process during the plea bargain.
According to Malcolm Feeley (1982), the adversarial process not only occurs in the plea
bargaining process, but is actually an expansion of the adversarial process as it allows far
more freedom for the two sides to bargain and negotiate without the formalities of the
courtroom. Feeley’s (1982) proposition however does not appear to be entirely correct
when compared to the data from the small amount of studies done in this area. What the
data show are that plea bargains only appear adversarial when caseloads are low, or the
defense has the prosecution on some type of technicality or loophole (Alschuler, 1975;
29
Meeker & Pontel, 1985). When caseloads are high, negotiations are prosecutor dominated
with the prosecutors setting the criteria for bargaining (Alschuler, 1975; Meeker &
Pontel, 1985). With high caseloads being the cause for the creation of the courtroom
workgroup, it is reasonable to assume that most, if not all, of the plea bargains today
involve very little of the adversarial process, and are cooperative and prosecutor driven.
While the courtroom may have strayed from a true adversarial process, and has
become a workgroup which cooperatively works to efficiently dispose of cases, it would
be incorrect to state that the agents in the courtroom are merely part of an assembly line
(Eisenstein & Jacob, 1977). While the courtroom may operate in a cohesive work group,
the quality of those in the group is still essential. While plea bargaining may not be truly
adversarial, it still has adversarial elements to it. Both public defenders and prosecutors
still have a specific role in the courtroom workgroup, and are responsible for executing
the responsibilities that come with that role.
The public defender is placed with the responsibility of ensuring that those
charged with a crime do not have their rights violated by the state, and the prosecutor
must bring those who have offended society to justice. While the courtroom does not
engage in the adversarial process, this does not mean that determining the level of parity
that exists in the courtroom is unimportant, as the courtroom is where the future of one’s
liberty is determined. It is the way in which parity is determined that must be redefined to
account for the workgroup, and the courtroom’s shift towards pursuing operational goals.
The courtroom workgroup, and its cooperative nature, may be accounting for the
literature that demonstrates high levels of effectiveness from public defenders. The
30
workgroup is causing these studies to err by way of an ecological fallacy. As they are
reporting case outcomes to show the effectiveness of the public defender alone, but in
actuality case outcomes are products of the courtroom workgroup as a whole.
The ABA’s extensive research on the condition of public defenders in America
continues to dispel claims that the office of the public defender is effective, and continues
to proclaim the promise of Gideon as unfulfilled (ABA,1984, 2004; Mantel, 2008). Using
findings from the ABA and applying them to the concept of the courtroom workgroup, it
would seem that the ineffectiveness of the public defender is masked by the cohesive
nature of the workgroup.
The level of parity that exists within the courtroom between the public defender
and prosecutor, in terms of education, experience, and connection to the local legal
culture, is essential to determining the condition of indigent defense in this country. What
must be done is to compare the public defender and prosecution, using meaningful
criteria such as education and experience, both areas that the ABA (2004) had identified
the public defender were deficient in.
Why, if the ABA has identified the public defender as lacking in these areas,
would studies which focus on trial outcomes show the public defender as effective? It
would seem that it is the quality of the prosecution, and the cooperative nature of the
courtroom workgroup, that is allowing for the public defender, who are lacking in
education and experience, to appear to be effective when viewing trial outcome data.
It should also be determined if the poor perception of the public defender (which
exists regardless if it holds any truth) affects the relationship between the public
31
defender’s office and the local law culture. If the public defender is perceived so poorly,
by both the public and practicing attorneys (Weiss, 2003), its ability to recruit from the
local pool of graduating law students may be negatively affected, as this negative
perception could create weaker connections to the local law schools, affecting the public
defender recruitment.
Based on what has been discussed above, this research should find the following:
H
: Prosecutors have obtained degrees from higher ranked
1
universities than public defenders.
H
: Prosecutors are more likely to have obtained their J.D.
2
degree from a university closer in proximity to where
they practice than those operating as public defenders.
H
: Prosecutors have more experience at practicing law
3
than public defenders.
H
: Prosecutors are less likely to have had any sanctions taken
4
against them by the BAR than public defenders.
32
Chapter 3
METHODS
Study Population
This research set out to determine the parity that exists between the public
defender’s office and district attorney’s office. It attempts to do so in a way that
accounted for the cooperative nature of the work these two sides do, by comparing them
as two distinct agencies, rather than simply using case outcome analysis. This will give
better depth and insight into the capabilities of those operating in our adversarial system,
which has been absent from the small amount of research that exists on this topic.
The population used for this study consists of all of the public defenders and
district attorneys employed in the County of Sacramento, California. This was a total of
240 attorneys, with 160 working for the district attorney, and 80 working for the public
defender. This information was obtained in two different ways. For the public defender, a
list of all those employed was provided by the public defender’s office. The district
attorney list was obtained from the Sacramento County district attorney website, where a
current roster is available for the public.
Variables
Once the two lists were obtained, each attorney’s name was put into the California
BAR database. The California BAR database then provided information on how long the
attorney has been practicing (as measured by length of BAR membership), where they
obtained their undergraduate degree, where they obtained their law degree, and the type
of disciplinary action received, if any, from the BAR.
33
Using the information provided by the BAR, this research then began to
determine the education and experience of each individual operating within the capacity
of either the public defender or district attorney. The five variables identified for each
attorney in this study was the institution where they obtained both their undergraduate
and J.D. degrees, location of where their J.D. was obtained in proximity to Sacramento,
the years of experience active in the BAR, and if any disciplinary action had been taken.
The only variable that was constructed using information not obtained directly from the
BAR was law school proximity to Sacramento. This was determined by locating the law
school the BAR provided for each attorney and recording where it was located.
Study Design
Quality of education was determined by taking the attorney’s undergraduate alma
mater, and J.D. alma mater, and giving each university a score that is in accordance with
the school’s current 2010 U.S. News rankings. The U.S. News rankings were used for
this study because they are a consistent ranking method for universities that has been in
use since 1983 and is widely recognized worldwide (U.S. News, 2009). The U.S. News
system has been able to effectively rank universities, and it was determined that this
research could benefit by using their system, rather than trying to establish an
independent ranking system for this research.
The U.S. News (2009) method for ranking undergraduate universities first begins
with dividing universities into two groups using the Carnegie method for ranking
universities. This then creates two categories, National Universities (universities that
focus on programs other than undergraduate) and Liberal Arts Colleges (universities
34
which focus primarily on undergraduate education). These categories are weighted to
then allow for similarity between the two groups (i.e., a #10 ranked university in the
liberal arts category, would be considered better than a #20 in the national university
category).
Once these two groups were compiled they were each scored on 15 different
indicators of academic excellence (U. S. News, 2009). These include indicators such as
Peer Assessment, Graduation Rate, and Freshman Retention. These indicators were
determined, and have remained as indicators during the 25 years the rankings have gone
on, through extensive surveying of university faculty (U.S. News, 2009).
Once a university has received a score for an indicator, its score is compared to all
the other universities and their scores for that same indicator. The university that scored
the highest for that indicator receives a score of 100, with the second highest receiving a
score of 99, and so on, for all 15 indicators. A university then receives a total score,
which is the sum of all 15 indicators, and the university with the highest overall score is
ranked number one overall (U. S. News, 2009).
This creates a total of 130 top ranked universities. Schools ranked 1-130 (meaning
schools who scored 100-30) making up tier one. While there is a total of 130 ranked
schools, not every rank number is occupied due to ties. In a case where two universities
tie, they both receive the same ranking. The school which follows the two tied
universities receives the ranking that it would have received based on its score. For
instance there are two universities that scored a 54 and are ranked #51 (Tulane University
and University of Miami). The next university scored a 53 and is ranked #53, not #52, as
35
this numerical ranking is not used because of the two schools tied at #51 (U.S. News,
2009).
Universities that scored within the top 50%, with an overall all indicator score of
1-29, are what make up tier three (there is no tier two). Schools that did not place in the
top 50% make up the fourth tier. A school would go unranked, and therefore not in a tier,
if they did not use the SAT or ACT in admission decisions, did not receive enough
responses on the peer assessment survey to create a score, had a total enrollment of fewer
than 200 students, or had no first-year students. Some were unranked if they were a
private, for-profit university, or a specialized school in arts, business, or engineering (U.
S. News, 2009).
U.S. News methodology for ranking law schools is a similar methodology except
it does not utilize the Carnegie method. It takes all 184 law schools in the country and
scores them on 12 different measures of quality. These measures of quality range from
peer assessment and acceptance rate, to job placement and graduation rates. Each school
is given an overall score based on the sum of these 12 scores. The school with the highest
overall score is given a 100 (making them the #1 school) and each school is then given a
score on how well they did in comparison to the top school. Schools that do not place into
the top 100 are placed into tier 2, and tier 3 respectively. The tier placement, as well as
resolving a tie, is handled in the same manner as it is for the undergraduate schools.
One problem that this research found with using the 2010 rankings was that it
could provide a ranking for a university that is not reflective of the ranking at the time the
36
individual attended the university. This is something that should be considered when
interpreting the findings.
Another problem that arises with using these data is that the ABA has stated
publicly that it does not support the U.S. News ranking system for law schools. However
the ABA does not support the rankings because it does not like the weight students give
the rankings while making their decision of which law school to attend. The ABA hopes
that students pick a school that suits them best, not one that is ranked the highest
(American Bar Association, 2009). The ABA has made no comment against the method
that U.S. News uses to rank law schools.
For the undergraduate score, an attorney was given the number that corresponded
to their alma mater’s U.S. News ranking. For universities that were ranked outside of the
top 130 schools, the attorney did not receive a score for their school, but rather the tier
their school was from was noted. This could have been tier three, tier four, or unranked.
This was deemed an appropriate way to identify all schools, and stay in accordance with
the U.S. news methodology.
For the J.D. score, the same approach was taken as with the undergraduate score,
except that the numerical score determination was slightly different, as the U.S. News
ranking for law schools goes to 100, rather than 130, as the undergraduate universities do.
For schools that were within the tier 1, meaning they ranked within the top 100, their
number rank was recorded as the attorney’s J.D. score. For those attorneys who obtained
their J.D. from non-tier one universities, the tier corresponding to the university from
37
which they obtained their degree was noted. This could be tier two, tier three, and
unranked.
It should be emphasized that the rationale for noting the tier from which a
university was from, outside of the first tier, rather than assigning a numerical value, is
that the U.S. News considers schools within the same tier, outside of the first tier, to be
equal to all other schools within the same tier. They are considered to be a higher quality
than the schools of a tier, or tiers, above them, and of a lesser quality than those schools
in the tier, or tiers, that precede them (U.S. News, 2009). This is the best way for this
study to represent what the U.S. News had done. The U.S. News had compiled
universities into tiers and unranked, and their methodology calculated a difference
between the schools they placed into these tiers, yet did not give a numerical ranking to
differentiate the schools from other schools within the same tier. Therefore, it was an
acceptable choice to identify these universities as to the tier that they were in, but did not
separate them from others within that tier. This stays with the methodology of the U.S.
News, as they consider schools within the same tier, aside from tier 1, as equal to one
another.
The location of where the attorney received their J.D. in relation to Sacramento
was determined to see how well either the prosecution or public defender is involved in
the local legal culture. Law schools place a lot of emphasis in expressing to prospective
students how well their school is connected to the local legal culture, and how that will
assist with future employment post-graduation. Law schools also express to J.D. students
that they should attend law school in the general area where they hope to practice law
38
because of these local legal networks. By determining how many local J.D. graduates are
employed with either the public defender office or the district attorney office, it would
demonstrate how well either office is recruiting, and connected to the local legal culture.
While of course there does exist those schools whose degree is valuable in any
legal market, regardless of locale, this is not true for most law schools. For example a
school such as Case Western in San Diego has a lot of alumni and name recognition in
San Diego, but very little outside of it. Therefore, for most law schools, and prospective
students, the local legal culture is important. For those schools outside of Yale, NYU,
Harvard, and other major law schools with “portable” degrees, the locale of employment
is highly dependent on the locale of the law school and its connections to the local legal
culture.
The most glaring example of this involves the District Attorney of the sample that
this study looks at. The District Attorney in this study obtained a JD from Lincoln Law
School in Sacramento, Ca. This is a law school that is unranked by the U.S. News, and is
not accredited by the ABA. It is fair to speculate that while not impossible, it could be
much harder for an individual to accomplish that outside of the connections within the
legal culture of the Sacramento area.
If an attorney had attended a law school within the Sacramento area (McGeorge,
University of California, Davis, or Lincoln) they would receive a four for their locale
score. If they had attended a school within northern California outside of the Sacramento
area, they would receive a score of three. For those who attended a law school south of
San Jose, California, they would receive a score of two. For those who attended school
39
anywhere outside of California they would receive a locale score of one. San Jose was
chosen as the point at which to divide northern and southern California. This is because it
is the point at which any school in the study north of San Jose was clearly geographically
in northern California, while any school south of San Jose was clearly geographically
located in southern California, with the northern most southern California school in the
study located in Fresno.
Experience was determined from the year in which the attorney became eligible
by the BAR to practice law in California, to the 2009. The experience variable measures
the years that an attorney was practicing law, and it should be noted that not all of these
years could have been spent at a given agency, but the data limited the research from
separating total years of experience practicing law, from total years working for either the
prosecution or public defender.
Due to the fact that the BAR data posted some attorneys with complete dates,
using month and year, and some with only a year, the years of experience was determined
by only using the year in which an individual passed the BAR, and how much time had
elapsed until 2009. The BAR would also note if periods occurred in which the individual
did not practice law, and these periods were deducted from the individual’s years of
experience when appropriate.
The final factor used to determine the quality of those operating in the position of
public defender or prosecutor was disciplinary action taken against the individual by the
BAR. During the time that an attorney is practicing as a member of the BAR, if any
sanctions were taken by the BAR against the attorney due to a violation of the terms of
40
membership, then it was noted by the BAR on the attorney’s profile. Both the date and
type of violation were noted on the BAR profile. For each attorney, any violation they
received was counted and recorded.
This research will look at the above data using descriptive statistics in order to
compare both the prosecution and public defender using the variables listed above. A
median score will be given for both departments as to the average years of experience
each department has practicing law. As for the other variables, proportions will be
constructed for each group and compared against each other. For instance, it will be
determined what proportion of public defenders attended tier one law schools, and it will
be compared against the proportion of prosecutors that attended tier one law schools.
41
Chapter 4
FINDINGS
This research set out to determine the parity that exists between the public
defender’s office and district attorney’s office in order to gain a better assessment of our
adversarial criminal justice system. The population examined consisted of all active
public defenders and prosecutors working for Sacramento county public defender’s office
and the Sacramento county prosecutor’s office. The study looked at a total of 240
criminal justice attorneys (160 with the prosecutor and 80 with the public defender). The
names of the active public defenders were provided by the public defender’s office. The
names of active prosecutors were obtained from the prosecutor’s office website.
H1: Prosecutors have obtained degrees from higher ranked universities than public
defenders.
The data show the prosecutor’s office having no significant education advantage
as to where degrees were obtained, and in fact in the some instances it was the public
defender with the advantage. When looking at where only law school degrees were
obtained (Figure 1), the data show that 8.8% of public defenders received their degree
from a law school ranking in the top 10, with only 2.5% of district attorneys receiving a
law degree from a school in the top 10. Both offices had more than half of their attorneys
with law degrees from non-tier 1 law schools.
42
Figure 1: Ranking of school where J.D. was obtained
District Attorney
Public Defender
59.5%
38.0%
56.20%
35.00%
8.80%
2.5%
Top 10
Tier1 (11-100)
Non Tier1
As for total the education score (Figure 2), which consists of a combination of an
attorney’s undergraduate and law school’s rankings, 69% of the public defenders
obtained a degree from at least one ranked university, with 70% of prosecutors obtaining
a degree from at least one ranked university. Thirty percent of the public defenders
obtained both degrees from ranked universities, with 26% of prosecutors accomplishing
the same. There was small difference between prosecutors and public defenders as far as
where the ranked degrees were obtained.
43
Figure 2: Ranking of both undergraduate and
law
District Attorney
Public Defender
44.00%
39.00%
31.00% 30.00%
no ranked school
30%
1 ranked school
26.00%
2 ranked schools
When looking at the attorneys who attended the top ranked schools in the study
individually, which consisted of the ten attorneys who had received both undergraduate
and law degrees from schools ranked within the top 10, 6 were public defenders and 4
were prosecutors. The most highly educated attorney in the study, as well as the second
highest, were both public defenders. Of the top 10 attorneys who had acquired the law
degrees from the highest ranked universities in the study, 7 were public defenders. Both
the prosecutor and public defender had an attorney that had obtained a J.D. from the
highest ranked law school, Yale.
When looking at the median score of each group and their education, the
discrepancy between the two groups appears to be much wider. The median
undergraduate ranking for the prosecutor’s office was better than the public defender with
the prosecution median ranking of 51, with the public defender median undergraduate
ranking of 57. The median law school rankings were even more in favor of the
44
prosecution with the public defender office having median law school ranking score of a
44, while the prosecution had a median law school ranking of 37.
H2: Prosecutors are more likely to have obtained their J.D. degree from a
university closer in proximity to where they practice than those operating as
public defenders.
The data show that prosecutors who had received their law degree in Sacramento
made up 60% of the prosecutor’s office, while public defenders who had received their
J.D. in Sacramento made up 56.3% of the public defender office (Figure 3). The
percentage of prosecution attorneys who acquired degrees in Southern California was
10%, with only 3.8% of public defenders obtaining their degree in southern California.
The public defender has a larger number of out of state J.D.s with 15% of public
defenders coming from out of state, compared to 11% of the prosecution obtaining
degrees from out of state.
Figure 3: Where J.D. was obtained
District Attorney
60%
Public Defender
56.30%
25.00%
19%
11%
10%
15%
3.80%
Sacramento Area
N. California
S. California
Out of CA
45
H3: Prosecutors have more experience at practicing law than public defenders.
The data show that 58.8% of public defenders have less than 10 years practicing law,
while 42.5% of prosecutors have 10 or fewer years of experience (Figure 4). The public
defender has 33.8% of it attorneys with 11-30 years, while 53% of the prosecutor’s office
have between 11 and 30 years of experience. The public defender with over 30 years
experience is 7.5%, with 4.4% of the prosecutor’s office having over 30 years experience.
The median score of experience for each group shows the prosecutors with a median of
18 years, with the public defenders having a median of 15 years.
Figure 4: Years of experience
District Attorney
Public Defender
58.80%
42.50%
35.60%
22.50%
17.50%
11.30%
4.40%
10 years or less
11-20 years
21-30 years
7.50%
31-40 years
When experience is combined with legal education, 80% of public defenders with
11-30 years of experience, received a degree from a tier-one law school (Figure 5). Sixtysix percent of prosecutors with 11-30 years of experience have a degree from a tier-one
46
law school. When looking at those with less than 10 years experience, 44% of
prosecutors have a tier-one degree, while 36% of public defender have a tier-one degree.
Fig 5:Experience and degree
District Attorney
Public Defender
50%
44%
43%
36%
37%
29%
10 years or less
w/T1
11-20 years w/T1
30%
21-30 years w/T1
30%
31-40 years w/T1
H4: Prosecutors are less likely to have had any sanctions taken against them by
the BAR than public defenders.
Of all 240 attorneys represented in the data, only one attorney had a record of
being of sanctioned by the BAR. This attorney belonged to the public defender’s office.
Analysis of the findings as they relate to the four hypotheses will be discussed in Chapter
5, “Discussion and Conclusion.”
47
Chapter 5
DISCUSSION AND CONCLUSIONS
The public defender occupies a strange place in society, employed by society to
defend the same individuals that society wants prosecuted. In this strange position of
which the public defender exists, an explanation regarding how the public defender is
perceived can be found. Society sees the public defender as the individual defending the
rights of the lowliest member of society, the criminal. It is quite easy to make the
inference that a person would only take on such an occupation if they were unable to find
work elsewhere. That a position of a public defender, because of what the job entails,
must be a last resort for only the weakest of legal minds.
For the client, the man or woman charged with offending society, how could they
fully trust the public defender? The public defender is an employee of the same system
that is trying to put them behind bars. The response of “Doesn’t the county sign your and
the prosecutor’s paycheck?” is a common one the public defender gets during intake
interviews. The dynamic of the courtroom work group only increases this stigma as the
familiarity between the actors in the courtroom creates a sense that the public defender is
on the same team with the prosecutor and judge, rather than working independently as
their advocate.
As for the public’s perception that the public defender is the bad guy who defends
the scum of society; inexperienced and ill-fitted for any other job in the law field (Getty
& Presley, 1974; Weiss, 2003), this data seems to show otherwise. They are no more, at
48
least from an education and experience standpoint, “ill fitted” for other jobs in the legal
market than their district attorney counterparts. In fact, the data can shed some light on
the quality of attorneys who work in the government sector as being quite high overall
when both groups are examined.
While the data clearly states the equivalency of the two sides of the adversarial
system, contrary to public opinion, it does not address how the public defender is viewed
from their clients. While whether or not the public has a positive perception means little
to the function of justice, if a client perceives his counsel as ineffective, even if in fact
they were effective, is justice still served? Is a system operating correctly from a
procedural standpoint, yet is disenfranchising many who come within its grasp, still
serving the indigent defendants it is supposed to?
This dilemma, using what information was discovered in the data, is something
that could quite efficiently be remedied. Public defenders, as well as reports by the ABA,
acknowledge that the biggest resource deficit they face is time with the client. Defendants
also echo this as part of their evaluation of their counsel in stating that they barely spoke
to their attorney about their case. It seems then that clients evaluate little face time with
poor representation, and public defenders acknowledge this lack of face time.
The data show that over half of the attorneys in the public defender office come
from law schools within Sacramento. The relationship then between the law schools and
the public defender should be fostered in order to create and develop legal clinics. This
would not only give law students valuable experience and public defenders much needed
assistance, but allow for the client to get more face time with someone to discuss their
49
case and address questions they may have. Currently neither one of the law schools in
Sacramento have a legal defense clinic with the public defender.
The one area in which the prosecution does have a slight advantage is the number
of attorneys with years of experience. This could be explained by the fact that many
public defenders can, after getting a few years of daily litigation experience which is
something that few other entry level legal jobs provide, cash in that experience and take
jobs with large high paying firms (Ellis, 2008). However, if this is the only explanation,
why would it not hold true across the board for both public defenders and prosecutors as
both groups are obtaining the same amount of trial experience? Why wouldn’t both
groups have a similar rate of loss to private firm jobs?
The answer may be found in the role that politics plays in the criminal justice
system. The District Attorney is a politically driven office being that the District Attorney
is elected, and that many individuals see a position as a district attorney as a leaping post
into politics. Not to mention that judges are elected positions, and with the District
Attorney’s office already in the game of politics, and the view of public defenders low to
begin with, it is much easier for a district attorney to become elected. Therefore
prosecutors have more at stake to stay in the game than public defenders as there is the
opportunity for a potential future in politics.
However, as time continues to move along, the existence of the public defender
should separate itself from some of the hostility towards the Warren court, and a
generation who might think the public defender was forced into the system, softening the
view of public defender. They will be recognized more for serving a legitimate and
50
necessary function, rather than defending “scum.” This should not only make public
defenders more politically viable in local and state governments, as well as in the judicial
arena as judges, but also alter how the public, and those who use the public defender
services, perceive their place in the criminal justice system.
Justice Black stated in the infamous Gideon (1963) decision that “the right of one
charged with crime to counsel may not be deemed fundamental and essential to fair trials
in some countries, but it is in ours,”(p.344) and that statement truly demonstrates the role
of a public defender in our nation. We are a nation founded on the Constitution, and
much of the American identity is based on defending, and trying to decipher, this pact
between those in power and those the power governs. However, a pact, or a promise, is
nothing until it has to be upheld, and upheld equally to everyone. We may all speak of
our right to “due process,” but that means very little unless we as a nation ensure
everyone’s right. It is very easy to ensure that the mother who kills her daughter’s rapist
receives all of her rights during her trial, but much more difficult when we are talking
about the rights of the man charged with raping someone’s daughter.
However by doing so, by defending those charged with a crime, no matter how
saintly or scary the defendant may be, and by allowing all to seek refuge in the promises
the Constitution provides, we as a society uphold the Constitution. While the prosecution
speaks, and rightly so, on behalf of “the people” as they present their case against a
defendant, the public defender, by providing a vigorous defense for their defendant,
speaks on behalf of the Constitution. It is this view, of the public defender being vitally
51
important to the integrity of the American Constitution that must be presented by the
public defender in order to dispel much of the negative stereotypes about the position.
52
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