Four years have passed since our last update on the success rates in Public Defender cases, so it’s time to see if the interim has witnessed any change—which it certainly has.
Following the lead of the first two posts in this series,[1] we’ll weigh the performance of public defenders against that of other defense lawyers in a set of 86 decisions filed from 2019-20 through 2022-23—and also compare these findings with those from the previous decade.[2]
A number of conclusions emerge from consideration of the annual results shown in Table 1, most notably the higher success rates for the defense over the past four terms compared to the preceding decade. In public-defender and non-public-defender cases taken together, the defense achieved a favorable outcome in 26% of decisions filed from 2019-20 through 2022-23, a 73% increase over the success rate (15%) for the prior 11 terms covered in the table.
This improvement was due almost entirely to public defenders. While the success rate for other defense attorneys edged up only from 12% (2008-09 through 2018-19) to 13% (2019-20 through 2022-23), for public defenders it nearly doubled, soaring from 18% to 35%. In other words, the success-rate gap between public defenders and their private-bar colleagues has expanded markedly in recent years, as detailed in Table 1, and it will be interesting to see if this continues over the next few terms.
Although one might surmise that turnover among the justices explains most of the improvement in criminal-defense attorneys’ outcomes over the past four terms, a look at Table 2 (covering 2014-15 through 2022-23) suggests that this factor has not been decisive. The criminal-defense bar clearly benefited from the replacement of Justice Gableman by Justice Dallet, but the opposite occurred when Justice Hagedorn succeeded Justice Abrahamson. The more elaborate transition from Justice Prosser, to Justice Kelly, to Justice Karofsky did ultimately aid defense attorneys, but not nearly enough to account for the change described above. And Justice Rebecca Bradley scarcely moved the needle in these cases compared to her predecessor, Justice Crooks (who sided with public defenders a bit more frequently than she has so far).
In short, the improving outcome for criminal-defense lawyers stems much less from the arrival of new justices than from the fact that all longer-tenured justices—those on the court during both of the intervals covered in Table 2—sided with public defenders more regularly during the last four terms than they did previously.[3] Perhaps this reflects more persuasive advocacy by public defenders, or a more judicious selection of cases on their part—or some other factor that has not occurred to me. If readers have any thoughts on this score, I’d be grateful to learn them.
[1] Public Defender Outcomes Compared to the “Field,” 2008-09 through 2013-14 and Public Defender Outcomes Compared to the “Field”: An Update for 2014-15 through 2018-19
[2] The set of 86 decisions includes (1) criminal cases (those whose numbers end with the CR suffix, by far our largest category), (2) cases involving collateral attacks on criminal convictions, and (3) cases involving involuntary commitments, forcible medication, or termination of parental rights.
In two cases (State v. Alan S. Johnson and Milton Eugene Warren v. Michael Meisner) the petitioner was represented by a private attorney but also received support from an amicus brief and oral argument by a public defender. I have included each of these cases in both the “public defender” and “non-public defender” categories.
I have excluded a handful of cases: (1) those with per curiam decisions and (2) those in which the decisions accepted some of the argument presented by each side (the state and the defense)—or were too fragmented to categorize for our tables.
[3] Some of these justices did not serve every year in both intervals.
About Alan Ball
The State Public Defender is likely keeping the better cases while appointing lovers to the private bar. Also, comparing SPD lawyers to private bar lawyers who have steady, timely compensation and benefits to private bar lawyers who have none of that is nor fair. If you are paid every two weeks and I have to wait a year to be paid, and you have paid vacation, health care and other goodies and I have none of those, you will do better.