Wednesday, January 10, 2007

Private or Public attorneys and the power of Weblogs

Take a look at Doug Berman’s piece on “Analyzing lawyering's impact on sentencing outcomes.” It’s really fascinating and worth another look, even if you saw this when it was first posted on Jan. 8.

Two points:

(1) The NY Times op-ed by Morris B. Hoffman, a Colorado state trial judge, is indeed a fascinating read regarding a quantitative study of whether or not defendants are better served by public defenders or private attorneys. Like Judge Hoffman, my best guess as I started reading was that the results would show that one is actually better off with a PD (The study takes another and surprising direction – part of the fascination of this op-ed). Judge Hoffman says that his 16-year experience has left him with “a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom.” Now, he sits where the rubber meets the road, and my experience in VA, MD, and DC is pretty different, at the system-wide level where I rarely get anywhere close to the rubber or the road.

But I too have been deeply impressed by PD’s in these settings. Colorado is not a guideline state (as Mike noted recently, that could change soon). But speaking from a sentencing guideline perspective, PD’s (while often young) seem to be very well-versed in the guidelines, the rules of the guidelines, and how subtle factors affect their clients and what to do about that. Of course, some private attorneys are similarly well prepared and well versed, but not invariably. My gut-level reaction, weighing the average attorney from these two groups based on the questions they ask in training and hot-line phone calls about their cases, is that I’d probably want the average PD going to bat for me – although I’d have to go broke to get one (Or would I? Part of the fascination of this article is the ways that one can appear indigent without actually being indigent, with systemic consequences for the justice system).

(2) What’s really most interesting about Doug’s post, and I think Mike will back me up here, is the Comment Section of the post. When I opened it, there were 19 COMMENTS – that’s right 19! Many of them get into the question raised at the end of the Judge’s op-ed about marginal indigency and how the system can/should be made more efficient. However, what really strikes me is the passion of these folks, their willingness to debate one another, and their insights. Just as a single example, one notes:

One of the biggest edges that the non-indigent have in sentencing is that they are non-indigent, not just that they have private counsel. Their affluence makes it possible for them to offer to prosecutors things like defendant financed drug rehabilitation, complete and prompt restitution, and defendant financed home detention monitoring. The indigent can't put such creative solutions on the table.
These insights are the best marriage of the perspectives and insights that come from practitioners, who can insightfully deconstruct research (Mike gives a counterexample of below relating to another matter involving Chief Bratton). Researchers are often not close enough to the action to see these nuances, although we try. The combination of research and practice can produce more than either taken alone, and is more than the sum of the parts.

Finally, Doug’s post and the subsequent comments just underscore the power of this media, weblogs, when people choose to take advantage of the format. I think Mike will again agree that there would be nothing more thrilling than to stir up this kind of passionate response, which is of course a tribute not only to Doug but most especially a tribute to many of his thoughtful and proactive readers.

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