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Notable Recent Publications, January 2024

Notable Recent Publications features the latest empirical research and data related to indigent defense. Contact IDRA if you have suggestions we should add to our list!


[From the website:] This book examines the lived experiences of death penalty defense lawyers and how they created a legal culture of resistance to the death penalty. It argues that an important social component of death penalty abolition in the state of Colorado was due to the efforts of capital defense attorneys. Specifically, it explores how the death penalty defense lawyers created and embraced a legal culture of resistance which compelled the attorneys to fight tenaciously in order to win life sentences for clients that had committed brutal homicides. A legal culture of resistance does not exist in a vacuum. Thwarting Death traces the lived experience of 15 death penalty defense lawyers from when they were kids all the way up through retirement to explain how a legal culture of resistance forms and lawyers operate within it after being established which in turn can have a massive influence on public policy outside of a courtroom; such as creating a social and political environment conducive to abolishing the death penalty.


Melanie B. Fessinger and Margaret Bull Kovera, An Offer You Cannot Refuse: Plea Offer Size Affects Innocent but Not Guilty Defendants' Perceptions of Voluntariness. 47/6 Law & Human Behavior, 619-633.

...Adults from Qualtrics Research Panels (N = 1,518; Mage = 59.22 years; 52% male; 83% White, non-Hispanic) played the role of a defendant in a simulated plea decision-making process. They were either innocent or guilty of the accusation. The prosecutor offered them a plea deal that varied in sentence reduction size (smaller versus larger), type (traditional versus Alford plea), and frame (plea discount versus trial penalty). Participants then decided how to plead and rated the voluntariness of the decision-making process.... Innocent and guilty defendants were less likely to plead guilty when the plea offer had a smaller...reduction. [I]nnocent defendants were less likely to plead guilty overall, required more prompting from their defense attorney to plead guilty, and rated the plea decision-making process as less voluntary.... Innocent defendants also rated the plea decision-making process as less voluntary when offered a smaller compared with larger sentence reduction and when they were offered an Alford plea compared with a traditional guilty plea...

Russell M. Gold & Kay L. Levine, The Public Voice of the Public Defender. Alabama Law Review.

...This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As the few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Milton Heumann, Kyle J. Morgan, Katie Krumbholz, Alice Militarua, and Lance Cassak. Strange, Unusual, and Creative Sentences: Analyzing “Outside the Box” Criminal Sentencing. 18, Victims and Offenders, 1446-1473.

This is an exploratory study of “non-traditional” criminal punishments, particularly focusing on the attitudes toward these sentences among prosecutors, defense attorneys, and judges. Through interviews with practitioners, this study explores among other things, if they had used, or advocated for, these types of sentences and why or why not. There was a broad openness to doing something different from the status quo of fine or jail, however it was tempered by concerns of bias and fairness. With considerations of mass incarceration dominating the reform conversation, we find that openness to individualizing sentences, albeit with “guardrails,” is reentering the reform conversation.

Eunro Lee, Jane Goodman-Delahunty , Natalie Martschuk , Nina Westera and Martine B. Powell. Using item response theory modelling to understand criminal justice professionals’ perceptions of cross-examination in child sexual abuse trials. 30/6, Psychiatry, Psychology, and Law, 888-908.

The need to educate criminal justice professionals about best practices to cross-examine complainants of child sexual abuse is widely acknowledged. Yet, a dearth of empirical information about their perceptions has hindered development of targeted professional education programmes. The present study compared perceptions of the quality of crossexamination of a child and an adolescent complainant between judges, prosecutors, defence lawyers, police officers and witness support staff. Questioning type (appropriate/inappropriate) and judicial intervention (present/absent) were varied. Results of two parameter Item Response Theory modelling showed that defence lawyers perceived significantly less unfairness to the complainant than the other professional groups. Judges’ views of unfairness were driven by the potential for confusion more than the ageinappropriate questioning. Police officers and witness support staff more likely rated the cross-examination as deleterious to the credibility and reliability of the complainant. Topics to include in professional development programmes around eliciting best evidence from vulnerable witnesses are discussed.

Natalie May, Confronting Maine's Indigent Defense Crisis: Lessons to be Learned from the Green Mountain State. 48/1, Vermont Law Review, 119-152.

This Article proposes that Maine remedy the constitutional and statutory violations in its indigent defense system by adopting a public defender system like that of another rural New England state: Vermont.... Part I discusses the history of indigent defense in the United States, beginning with the Sixth Amendment, the 1963 case Gideon v. Wainwright, and caselaw developments through modern day. Maine’s current system will be explored through the lens of this history and the pending ACLU of Maine lawsuit. Part II analyzes Vermont’s indigent defense system and proposes that adopting a similar system could help Maine remedy the constitutional violations alleged by the ACLU. Part III addresses counterarguments related to funding, Maine’s rural attorney shortage, and the risk of replacing one flawed system with another.

Rafaela Barbosa Nascimento, Elton Pereira Teixeira, Orlem Pinheiro de Lima, Márcia Ribeiro Maduro, Vanessa Coelho da Silva and Wlademir Leite Correia Filho, Process Mapping: A Case Study in the Contract Sector of the Public Defender's Office in the State of Amazonas. Journal of Engineering and Technology for Industrial Applications.

The objective of the study was to analyze, from the perspective of process management, the bottlenecks in lease contracts at the Public Defender's Office of the State of Amazonas. It consists of an applied case study, with a descriptive qualitative approach, using Business Process Management (BPM) as the guiding methodology and the 5W1H quality tool to suggest improvements in the processes. The results identified the main bottlenecks as the lack of procedure and flowchart development, absence of a schedule for opening branches, low synergy and communication among employees, as well as a lack of clear roles for those responsible for the processes. It is considered that through process mapping and bottleneck identification, it was possible to propose the following actions to ensure the continuous improvement of the process: development of procedures and flows, organizational climate research, meetings to understand departmental demands, and the creation of an opening schedule for processes and alignment of deadlines.

Teichman, Doron; Zamir, Eyal; Ritov, Ilana. Biases in legal decisionmaking: Comparing prosecutors, defense attorneys, law students, and laypersons.  20/40, Journal of Empirical Legal Studies, 852-894.

...This study directly compares laypersons, law students, and legal practitioners—including prosecutors and defense lawyers – in terms of their attitudes about the criminal justice system and their cognitive biases. It was found that the outcome bias and the anti-inference bias influenced all groups similarly, but an irrelevant anchor only impacted the decisions of laypersons and law students, and not those of legal professionals. Prosecutors were significantly more inclined to judge a behavior as negligent and reach factual conclusions supporting a conviction. However, the hypothesis that the susceptibility of prosecutors and defense lawyers to cognitive biases would be affected by their role was not borne out. The article considers possible explanations for the reported findings, and discusses their policy implications. 

Chuanyou Yuan and Huishu Cao, Justice must be seen to be done: a multimodal attitude analysis of attorneys’ closing arguments, Semiotica.

Multimodal discourse analysis offers a novel lens for the study of legal discourse. Within the closing arguments of a trial, prosecution and defense attorneys utilize various multimodal resources to present evidence, articulate opinions, and adopt stances to achieve their communicative goals. This research focuses on the closing arguments in the criminal trial concerning the death of George Floyd to analyze the multimodal representation of the closing arguments delivered by both prosecution and defense attorneys. It employs the analytical framework of the attitude system and paralinguistic typology proposed by Martin and colleagues, and uses the UAM Corpus Tool and Praat to qualitatively annotate and quantify the linguistic and paralinguistic information. The findings reveal that these attorneys employ different multimodal resources, including language and paralanguage, to convey their attitudes towards the case’s participants. This leads to the construction of competing narratives, shedding light on how justice is seen to be done.


[From the website:] [This report] is the result of a one-year project that asked over 100 Black Chicagoans to define what public safety means to them. The information was gathered through listening sessions, interviews, conversations, and role-playing....Responses and solutions to unsafety were collected in the areas of community engagement, social investment, and police engagement, including:
  • Strengthen Black community relationships: promote more positive interactions and create more space for unity amongst neighbors;
  • Invest in well-being and opportunity: invest in the well-being of residents in the areas of safe and affordable housing, food security, healthcare, education and the labor market; and
  • Improve public defender visibility and interaction with community: public defenders must understand and get to know the people in the communities they serve by actively engaging with the community through events and service.
[From the report.] Virginia’s existing policy of charging people for court-appointed attorneys taxes low-income people for equal justice, takes money out of family budgets for basic needs, costs localities across the Commonwealth dearly, and is unnecessary. Virginia can and should eliminate court-appointed
attorney fees.

Death By Design: Part 1, The Wren Collective.
[From the website.] Over the last few decades, news outlets have run periodic stories about death penalty lawyers in Harris County with too-high caseloads who have missed critical filing deadlines or who did minimal work on their client’s case. On the 60th anniversary of Gideon, the Wren Collective investigated whether these stories were isolated examples of flawed representation or whether the representation reflected problems that exist throughout the system of capital defense. We interviewed judges, trial and postconviction attorneys, and mitigation specialists. We reviewed caseloads, jail visits, and billing records. We read postconviction pleadings from the majority of Harris County capital cases that ended with death sentences in the last two decades. We focused primarily on those cases where individuals are still on death row, but also looked at a few whose sentences have been overturned. In total, we examined 28 cases.
Death By Design: Part 2, The Wren Collective.

[From the website.] This report examines why...poor representation has thrived [in Harris Co., TX], and the ways that the judges overseeing those cases have enabled it to continue that way. First, judges seemingly ignore the excessive caseloads that many attorneys have.... Second, there is an inherent conflict of interest when judges are in control of both the appointments and the purse strings of a case because it means the attorney’s livelihood is dependent on pleasing the judge....Third, the judges in Harris County have never established meaningful training requirements for lawyers, or any requirements at all for the mitigation specialists. 

Pre-Registered Study

Mary Catlin, The Role of Communication in Plea Bargaining and Plea Decision-Making.

[From the website:] This dissertation aims to....investigate how the motivation of a defense attorney (i.e., allegiance to their client or to the prosecutor) may influence the information defense attorneys seek out and provide to defendants; investigate how the 'telephone phenomenon' affects the exchange of information from prosecutors to defense attorneys to defendants, specifically how the information may be  omitted, distorted, or otherwise inaccurately communicated;... to investigate how the communication of plea offers impacts defendant decision-making and perceptions of voluntariness and understanding.