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Notable Recent Publications - January, 2021

Notable Recent Publications features the latest empirical research and data related to indigent defense. Should you have suggestions, ideas for work that should be included, or trouble accessing any of the articles featured, please write to


Joseph J. Avery, Jordan Starck, Yiqiao Zhong, Jonathan D. Avery, and Joel Cooper Is your own team against you? Implicit bias and interpersonal regard in criminal defense, Journal of Social Psychology.
"Racial disparities in conviction and incarceration have been lamentable features of legal systems for a long time. Research has addressed the attitudes and decisions of police, prosecutors, jurors, and judges in contributing to these disparities, but very little attention has been paid to defendants’ own team members—i.e., criminal defense attorneys. Researchers have specifically identified this as a “scholarly gap”. To address this, we conducted an empirical study of criminal defense attorneys practicing in forty-three U.S. states (N = 327). The attorneys completed both an implicit measure designed to capture racial bias (a race Implicit Association Test) and an explicit measure designed to capture interpersonal regard for clients. The results provided support for longstanding, but previously speculative, assertions of bias in criminal defense." 
"Research consistently finds that jurors bring preexisting attitudes and opinions, which can influence trial outcomes, into the courtroom. This research seeks to understand if juror decision-making is influenced by implicit and explicit perceptions of legal actor trustworthiness. Participants were recruited from Amazon’s Mechanical Turk online platform and were randomly assigned to read a summarized trial scenario and render a guilty or not guilty verdict. Two of the three trials differed according to presentation of “compromising” evidence by either the prosecution or the defense, with the third serving as a control condition. To establish if participants had trustworthy or untrustworthy implicit attitudes toward prosecutors or defense attorneys, participants completed an Implicit Association Test (IAT). Participants then reported their explicit attitudes toward prosecutors and defense attorneys, in addition to providing their demographic information and attitudes toward the criminal legal system. Results indicate that implicit and explicit biases, as well as certain socio-demographics, are associated with verdicts in the trial scenarios. However, in particularly ambiguous cases (control condition), preexisting implicit biases of legal actor trust-worthiness appear to inform verdicts more than explicit attitudes. These results suggest that attorney reliance on explicit attitudes during voir dire may be more informative, except in cases in which the evidence for both the prosecution and defense is particularly ambiguous."

"As plea bargains have proliferated in the criminal justice system, scholars have been working to better understand their mechanics. There have been a few recent examinations of plea bargaining, but the literature lacks qualitative research that gives the defense sufficient attention. Using a sample of courtroom practitioners in one large, urban county, we examine defense attorney bargaining and client counseling tactics. Results demonstrate that defense attorneys use a variety of strategies for negotiation, including sharing humanizing information about their clients with the prosecutor and utilizing delay tactics. Results also suggest that attorneys counsel their clients about plea offers in varying ways and that they are not in full agreement regarding the level of autonomy to give their clients. Overall, results support some prior literature but also prompt questions of other widely-held beliefs, such as the idea that all courtroom actors endorse “going rates” as the prevailing norm in the courtroom. Although there are likely some expectations for typical punishments, these results also point to individual defense attorneys' ability to alter the trajectory of a criminal case through their negotiation and client counseling strategies. We conclude that more research is necessary on defense counsel strategies and how they may impact case processing and outcomes."
Donald M. Linhorst, David Kondrat, Jacob Eikenberry & P. Ann Dirks-Linhorst Associations between Legal Representation and Mental Health Court Outcomes, American Journal of Criminal Justice.
"This study empirically examines the associations between legal representation and four key outcomes in mental health courts. The outcomes include whether eligible defendants chose to participate in a municipal mental health court (MMHC); if defendants chose to participate, whether the MMHC resolved their criminal charges without court supervision; whether eligible defendants attended the initial MMHC court hearings; and whether defendants successfully completed the MMHC program. The study included 1012 defendants who were accepted into a MMHC in a state where municipal court defendants do not have to be represented by a defense attorney. We conducted bivariate and logistic regression analyses to identify differences in each of the four outcomes between MMHC defendants who did or did not have a defense attorney. The results of the bivariate and logistic regression analyses found defendants represented by defense attorneys were more likely to choose not to participate in the MMHC, to resolve their criminal charges without court supervision, to participate in initial court hearings, and to successfully complete the MMHC program. All four regression models were statistically significant, although the amount of variance explained was relatively low, ranging from 6% to 13%."
Samantha Luna & Allison Redlich Unintelligent Decision-Making? The Impact of Discovery on Defendant Plea Decisions. Wrongful Conviction Law Review.
"The disclosure of evidence, primarily from the prosecutor to the defense (i.e., discovery) is key to a fair and just legal system. Restrictive discovery policies have been criticized for contributing to innocent defendants pleading guilty and to uninformed plea decisions. Open - file policies, in which prosecutors broadly share evidence with the defense, are a leading reform to address these issues. This study investigated the impact of guilt and access to discovery information (with or without exculpatory evidence) on plea decisions. We hypothesized that, in comparison to their counterparts, participants who had access to all of the evidence (i.e., those in open - file condition) and participants who were innocent would rate the evidence against them as significantly weaker, their probabilities of conviction at trial as significantly lower, and would be less likely to take the plea deal. We also hypothesized that ratings of evidence strength and probability of conviction would mediate expected relations between the plea decision and conditions. One-hundred participant-defendants were randomly assigned to open- vs. closed-file and guilt vs. innocence conditions and asked to review case materials that either contained full or partial discovery. They were then asked to rate the strength of the evidence against them, their probability of conviction, and to accept or reject a plea offer in a hypothetical case. Defendant guilt and access to discovery information impacted perceived evidence strength, which subsequently impacted plea decision-making. Our findings indicate that access to discovery information indirectly impacted defendants’ plea decisions."

Book Review

[From the review:] "In her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, Sara Mayeux provides a definitive history of this important yet conflicted institution, documenting along the way how liberal legal reforms can function to legitimate material inequalities and distract from more robust commitments to social justice. Taking readers from the Progressive Era to the height of the Cold War, Mayeux shows the stages by which influential reformers crafted our current indigent-defense system." 

News item

Data breach at US legal aid firm Brooklyn Defender Services exposed clients’ personal data
[From the piece:] "New York law firm Brooklyn Defender Services says it has been struck by a data breach involving sensitive personal information belonging to its low income, government-funded clients. The public defender organization said that on September 13, it discovered that “some” employee email accounts had been compromised by an “unauthorized person”, according to a press release published on December 10. A subsequent investigation revealed “that emails or attachments may have included employees’ and clients’ names, addresses, financial account numbers, Social Security numbers, driver's license numbers, passport numbers, health information, and/or biometric data such as fingerprints”."