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Notable Recent Publications, March 2023

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  

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Milena Ang Idleness as work? How public defenders do their job by waiting. Crime, Law & Social Change.

...Drawing from fieldwork conducted in Oaxaca city, Mexicali, and Tijuana, I find that the public defenders spend a considerable amount of time waiting: waiting in the office for their next case to be assigned, waiting to receive a file, or waiting for the judge to show up in court.... I identify three ways in which defenders do their jobs during their down-time. First, they interchange key information about specific cases with other operators of the system and families and acquaintances of the accused, thus building legal strategies. Second, down time allows them to socialize with agents of the fiscalía [prosecution], cops, and other courthouse workers, a crucial activity for the establishment of cordial interagency relations. Finally, they also use this down time to do what I call “forced encroachment,” meaning the undertaking of activities— such as professionalization of legal translators—that are not necessarily their responsibility but that are nevertheless crucial for the jobs. Waiting, in a way, allows public defenders to provide a legal defense in the absence of time and money to investigate, thus keeping the criminal justice system running. 

Isabel Arriagada, “This is where I belong:” a narrative study of professional commitment to a new criminal justice agency. Crime, Law & Social Change.

...The present study builds on existing analyses of cause lawyering and indigent criminal defense to examine the personal narratives of penitentiary defenders, lawyers working for the Unit of Penitentiary Defense, a novel Chilean public agency that offers legal assistance and enables convicted prisoners to file grievances and report rights violations before criminal courts. By drawing on 45 in-depth semi-structured interviews, I analyze the ways in which these attorneys incorporate biographical experiences and life events into coherent stories that both support and construct their professional identity as legal aid lawyers despite adverse working conditions. Four narratives are prevalent in their accounts: identification, privilege, calling, and admiration. These narratives demonstrate that criminal justice professionals engage in meaning-making processes through the creation of biographical accounts that tie personal and professional self-understandings together. The contribution of the article is thus twofold: it situates the role of individual agency in the development of penal projects and provides a novel explanation as to how legal aid lawyers become personally and professionally invested in indigent defense.

Pablo Carvacho, Access to justice in prisons or the limitations of prison defense. Crime, Law & Social Change.

This article sought to understand the adequacy of criminal defense services within prisons. By analyzing secondary data and interviews, it describes the justiciable problems and legal needs, the lines of action, and the obstacles that the adult prison population encounters. The results show that the experience and needs that arise in prison surpass the institutional capabilities of the Chilean Public Defender’s Office. Therefore, a new institutional framework must be created to meet the justice claims of prisoners. 

Roxanna Dehaghani and Daniel Newman, Criminal legal aid and access to justice: an empirical account of a reduction in resilience. International Journal of the Legal Profession.

This paper examines the work of criminal legal aid solicitors and the state of practice under challenging conditions for the sector. Drawing on an empirical study in south Wales containing 20 semi-structured interviews, it provides original data on the frontline of criminal practice. It is argued – using vulnerability theory – that the challenges facing criminal legal aid solicitors deplete their and their client’s resilience but at the same time bolsters the resilience of the police and prosecution. It further urges that vulnerability theory be used to examine criminal justice in practice, particularly the dynamics between various actors.

Agnieszka E Łyś, Kamilla Bargiel-Matusiewicz and Anna Studzińska, Perception of the Presumption of Innocence in the Context of Media Depictions of Violence: The Role of Participant's Gender, Type of Crime, and Defendant's Socioeconomic Status. Journal of Interpersonal Violence.

[W]e investigated the determinants of the perception of the presumption of innocence in the context of media depictions of violence.... The current study investigated whether the perception of the presumption of innocence is related to the type of crime (sexual vs. nonsexual assault) or to the socioeconomic status of the defendant (a famous writer vs. a maintenance worker). We conducted a vignette-based study with a sample of Polish people (N = 158). The type of crime did not influence the perception of the presumption of innocence; however, women who participated in the study endorsed the presumption of innocence to a greater extent when the defendant had a high socioeconomic status....  

Lore Mergaerts, Defence lawyers’ views on and identification of suspect vulnerability in criminal proceedings. International Journal of the Legal Profession. 

[V]ulnerable persons require special care to understand their legal rights and to improve the quality of their statements. Consequently, defence lawyers must be aware early on in proceedings whether their clients can be qualified as vulnerable in order to adequately deal with this presumed vulnerability.... [T]his article outlines how Belgian defence lawyers perceive and identify suspect vulnerability in the early stages of a criminal investigation.

Andres F. Rengifo, Lorena Avila and David Ibañez, Criminal defense work in a sample of arrest hearingsin three states of Mexico: the micro‑dynamics of case‑level engagement, influence, and strategy. Crime, Law & Social Change.

We examine variation in criminal defense work in a sample of arrest hearings in three states of Mexico (N = 186). Specifically, drawing on systematic observations, we map the explicit challenges voiced by counsel to oppose motions by prosecutors supporting the legality of detentions. We find that “instrumental” challenges are more likely when defendants are accompanied by friends/relatives, and in the presence of more proactive judges; moreover, these challenges increase the likelihood of a ruling of illegality, controlling for other factors. However, defense practices also rely on more “expressive” challenges and other strategies that weaken the adversarial model. Critically, we also find that judicial decisions are independently shaped by the level of engagement of prosecutors during hearings and the skin color of defendants—darker defendants have lower odds of having their arrests be declared illegal. We discuss these findings in the context of the literature on courtroom workgroups and pretrial justice.

Ludmila Ribeiro and Gustavo Fondevila, Legal defense in Latin America: challenges within change. Crime Law & Social Change.

[From the text:] The change towards an accusatorial system has resulted in the adoption of new Legal Defense agencies, charged with providing proper assistance to citizens who cannot afford a private lawyer. While most Latin American countries have implemented this system, they have not all followed the same model. This has opened up a field of comparative analysis in the region.... This special issue includes ten papers from four different countries: Argentina, Brazil, Chile, and Mexico. As organizers, we invited scholars from all the countries mentioned in Table 1, as these are both the most prominent countries in Latin America and the ones that have implemented Legal Defense Agencies to improve the quality of democracy in their criminal justice systems.

Jenia Iontcheva Turner, Ronald F. Wright, and Michael Braun, Neglected Discovery. Duke Law Journal.

...Analyzing a novel data set we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number felony cases between 2018-2020. We also found that the access rate varied by county, year, offense type, attorney category, attorney experience, and file type... [I]nterviewees identified several explanations for the failure to access evidence. These include a lack of technological skills and support, the overwhelming volume of digital discovery, the client’s desire for fast resolution of the case, the lesser gravity of some cases, high caseloads, low compensation, and in some cases, simple lack of diligence. We consider the implications of these attorney practices for ineffective assistance of counsel litigation, effective supervision of defense attorneys, and criminal law reform.