Notable Recent Publications - October, 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 albdavies@smu.edu

Journal Articles

Alyssa M. Clark, Andrew L. B. Davies & Karise M. Curtis. Access to Counsel for Defendants in Lower Criminal Courts. Justice System Journal.

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited. 

 

Matthew Clair. Resistance is Futile. Inquest.
In ways large and small, defendants who try to assert their voice in the criminal legal system see their agency denied — including, sometimes, by their own lawyers.

 

Itiel Dror, Judy Melinek, Jonathan L. Arden, Jeff Kukucka, Sarah Hawkins, Joye Carter, and Daniel Atherton, Cognitive Bias in Forensic Pathology Decisions. 66/5 Journal of Forensic Sciences, pp. 1751-1757. 

...Does cognitive bias affect forensic pathologists’ decision-making? ...[W]e examined all death certificates issued during a 10-year period in the State of Nevada in the United States for children under the age of six. We also conducted an experiment with 133 forensic pathologists in which we tested whether knowledge of irrelevant non-medical information that should have no bearing on forensic pathologists’ decisions influenced their manner of death determinations.... [F]orensic pathologists were more likely to rule "homicide" rather than "accident" for deaths of Black children relative to White children....[T]he experimental data with the 133 forensic pathologists exhibited biased decisions when given identical medical information but different irrelevant non-medical information about the race of the child and who was the caregiver who brought them to the hospital. These findings together demonstrate how extraneous information can result in cognitive bias in forensic pathology decision-making.

 

Paul Heaton, Enhanced Public Defense Provides Improves Pretrial Outcomes and Reduces Racial Disparities. Indiana Law Journal.

Beginning in 2017, the Defender Association of Philadelphia implemented a pilot program wherein “bail advocates” interviewed defendants shortly after arrest to collect individualized information that could be used to more effectively argue for pretrial release. Using administrative data covering nearly 100,000 criminal cases and a quasi-experimental research design that exploits the random shuffling of arraignment shifts covered by advocates during the pilot, we measure the causal impacts of the advocates on pretrial release, failure to appear, case outcomes, and future crime. Bail advocates did not reduce detention rates (at least on average) but did substantially reduce clients’ likelihood of bail violation (-64%) and future arrest (-26%). Bail advocates also reduce racial disparities in pretrial detention. Interviews with prosecutors, defenders, and bail advocates suggest that these impacts likely represent both better understanding of defendant risk and needs by magistrates and a better sense of procedural justice by defendants.

 

Ralph E. McKinney Jr. & Casey W. Baker, Indigent Defense in West Virginia: A Historical Look at Public Defender Services, 122 West Virginia Law Review, 841 (2020).

[From the article:] "This Article provides a historical overview of Public Defender Services as the State agency primarily charged with advocating West Virginia indigent defense programs.... [It] also provides an insider's account of the Agency's operations, obstacles, pitfalls, and successes that arose while delivering constitutionally required legal representation to the accused in West Virginia.... Additionally, as advocacy requires resources, this Article discusses the financial and economic components of public defense programs and how they have resulted in West Virginia's mixed method of delivering legal services. Finally, this Article concludes with suggestions for improving the delivery of legal services."

Book Chapter

Crehan E.T., Ury F.S. (2021) Legal Defense in Criminal Cases. In: Volkmar F.R., Loftin R., Westphal A., Woodbury-Smith M. (eds) Handbook of Autism Spectrum Disorder and the Law. Springer, Cham.

Navigating the criminal process as an autistic person can be particularly challenging due to procedural and structural aspects of the process that impact anxiety, sensory experiences, and social communication. This chapter will focus on five distinct phases of the criminal process: criminal investigation, arrest, pretrial, trial and post-conviction processes. For each phase, special considerations relating to autism spectrum disorder will be summarized and recommendations are offered.

New Projects

Andreea Matei. Plea Bargaining in Philadelphia, Urban Institute.
[From the Urban Institute:] "The Urban Institute is conducting a research project to study plea bargaining in Philadelphia. As part of this project, they want to interview people who have gone through the Philadelphia criminal justice system and accepted pleas and criminal defense lawyers in Philadelphia. This is an opportunity to hear from two actors of the plea bargaining process rarely focused on: people with lived experience and criminal defense. For both interviews with people who accepted pleas and criminal defense lawyers in Philadelphia, it will be a confidential interview, which means only the Urban Institute project team will know if you decide to participate or what you say. Your name won’t be used in any report and the interview won’t be recorded. It will take about a half hour of your time. I’ve attached a flyer with some quick information for people who have accepted pleas in Philadelphia. If you’re interested, you can call or email Andreea Matei, the lead researcher, at 202-261-5477 and amatei@urban.org."

Arnold Ventures Public Defense Portfolio.
[From the announcement:] "Arnold Ventures is thrilled to announce the launch of our public defense portfolio. While AV has engaged in public defense-related grant-making for some time, we have not had a dedicated portfolio around it until now. This strategy and the first round of grants we have made represent AV’s recognition of the essential role strong public defense can play in redressing the harms of the criminal justice system. Moreover, our grantees will employ the full range of tools — policy development, research, litigation, and narrative change — to advance the public defense field in knowledge development, policy change, and vision."

Rebecca Shaeffer, Jeanette Hussemann, and Genevieve Citrin Ray. Advancing the Case for Early Access to Counsel in Police Precincts. (Fair Trials, in collaboration with NORC, Urban Institute)
"[I]n January 2021, California passed Senate Bill 203 (SB 203), which expanded the requirement that youth be advised by an attorney before they decide whether to waive their right to silence, and to a lawyer from under the age of 15 to under the age of 18. Fair Trials, NORC at the University of Chicago, and the Urban Institute are partnering on a three-year project to study the implementation of SB 203 and provide technical assistance on best practices to support the provision of early access to legal counsel. The project team will also convene a national learning community to facilitate the application and study of arrest and stationhouse counsel in sites beyond California.

Theses

Duke, Lindsey, Gluttons for punishment: Why some professionals choose the hard path, Ph.D. Dissertation, Business Administration, Texas Tech.
This study examines the subjective motivations and justifications of a group of public service professional practitioners. For this phenomenologically inspired grounded theory study, I analyze the professional autobiographical narratives of 55 indigent criminal defense attorneys in the United States. Based on the characteristics of the narratives in this study, experiencing contextual discontinuity in conjunction with previously held normative expectations of a social structure can have causal effects on an agent. The potential effect of this discontinuity is a dramatic shift in the personal perceptions, motivations, and agentic mode of an individual. Additionally, the data in this study suggests that some professionals engage in professional work with the intention to dispel and correct institutional myths in their daily practice.

Guo, Haihao, How do attorney assignment mechanisms affect juvenile indigent defense? (University of Chicago, Masters thesis).
"The government ensures access to legal representation for all defendants by assigning attorneys to those who cannot afford private counsel. Government attorneys are assigned either by the judge or in a pseudo-random manner through a rotation system. However, there are concerns over the mechanism by which attorneys are assigned as some mechanisms may impact case outcomes. Using the juvenile criminal records of 37 counties in America in 1998, this study examines how the assignment mechanism affects indigent defendants’ chances of being convicted. In terms of a reduced risk of conviction, I find that quasi-random assignment results in better outcomes for defendants. This paper elucidates that in counties where the judge assigns attorneys, the assigned counsels are more likely to persuade their defendants to plead guilty, which contributes to the disparities in case outcomes"