THE QUALITY OF JUSTICE FOR INDIGENT DEFENDANTS

Brian Murphy North Georgra College

and Leo C. Downing, Jr.

North Geoigirr College

I n the United States, the majority of defendants prosecuted for felonies a re indigents unable to afford private counsel. State and local governments are under constitutional obligation to provide legal representation for indigents accused either of a felony (Gideon v. Wainwi&t, 372 US . 335, 1963) or of a misdemeanor involving a possible jail term (Awersineer v. Hamlin, 407 US. 25, 1972). Two systems have developed to service the poor accused of a crime. About 60% of counties have adopted the method of court-appointed counsel in which a judge assigns an attorney from an available pool (Cole, 1989: 348). Most urban areas, however, utilize a public defender’s office staffed by lawyers o n a fixed government salary.

This paper shall examine the quality of legal representation received by indigents in Fulton County, Georgia. T h e ad- vantage of Fulton County is that it employs W court-ap- po in ted a n d publ ic de fende r systems. T h u s a un ique opportunity is presented to compare the performance of three different types of attorneys--public defender, court-appointed, and private--within the same judicial environment. Two ques- tions shall be investigated: (a) is one method of representation of indigents (court-appointed or public defender) superior to the other? and (b) a re indigent defendants suffering from in- ferior legal advice in relation to the more affluent in society?

To obtain a framework for analysis, the paper shall focus upon the disposition of indictments in two categories of crime: murder and rape. This approach enables a determination to be made whether the nature of a crime influences the behavior of defense counsel. In particular, studies have discovered that rape is a “unique” crime in its treatment within the criminal

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justice system (Galvin and Polk, 19S3; Stefl‘enmeier, 1985). It is possible attorneys may behave differently in different criminal situations.

I

MethodoloPy

Data were collected on every indictment for murder, rape, attempted rape, and aggravated assault with intent to rape disposed of in Fulton County, Georgia (metropolitan Atlanta) in 1986. This population includes cases initiated prior to 1986 as well as cases overturned on appeal and redisposed in 1986. These dispositions represent cases in which the defendant is found guilty (by plea or trial), cases in which the defendant is acquitted at trial, and cases in which the charge was dead-dock- eted by the court. A dead docket is the equivalent of a & prosequi in that the prosecutor has decided not to pursue the case. The reasons for this disposal vary from insufficient evidence, death of the defendant, and--most commonly--a reindictment on the same charge.

Data on these cases were acquired in three stages. The first stage involved examining the docket of Fulton County Superior Court for all felony indictments and their outcomes. Indict- ments for murder, rape, attempted rape, and aggravated assault with intent to rape disposed of in 1986 were isolated for further analysis. The following information was collected on each case: case number, defendant’s name, indictment number, presiding judge, date ol indictment, booking number, indicted charge(s), convicted crime(s), sentence imposed, plea negotiation, and date of disposition.

The second stage constituted an inspection of the case files for each indictment from the Clerk’s Office of Fulton County Superior Court. The following information was obtained: case number, aliases, computerized state identification number (SID), Federal Bureau of Investigation number (NCIC), social security number, date of birth, race, marital status at the time of arrest, sex, physical handicaps, drug usage, arrest date, trial date, type of lawyer, economic background, employment status at the time of arrest, disposition date, plea negotiation, and sentence

OUALITY OF JUSTICE 105

imposed. The da te of the offense itself was taken from the indictment.

Through an agreement with the Georgia Crime Information Center (GCIC), the defendant’s name and SID number (or alternatively date of birth or social security number) enabled the review of each defendant’s criminal history. In the third stage of data acquisition, the computer files of each defendant--main- tained by the Georgia Bureau of Investigation (GCIC) and the Federal Bureau of Investigation (NC1C)--were analyzed. . T h e major restriction of the agreement between the researchers and the G C I C is that the names of the defendants cannot be revealed. From the computerized records, data were obtained on the following variables: number of previous arrests, type of previous arrests, number of previous convictions, type of pre- vious convictions, dates of prior arrests, age at time of first arrest, age at time of first felony arrest, and number of states in which arrested. This last stage of data collection did not begin until December of 1987, at least eleven months after disposition of the cases. The majority of record checks were conducted in the months of July and August, 1988. The data were analyzed through a series of statistical applications involving crosstabula- tions and breakdowns. It was decided to eliminate dead-docket cases due to the limited information available in their records. Therefore, the total study PO ulation amounts to 98 cases of rape and 90 cases of murder. These figures represent only a fraction of the 939 rapes and 209 murders committed in Fulton County in 1986 (Georgia Bureau of Investigation, 1988: 73).

P

I1

A. Demographic Characteris tics of Defendants

Fulton County is a large (534 square miles) urban county located in the north-central section of Georgia. T h e population in 1984 was 614,838, with Atlanta being the largest city (U.S. Bureau of the Census, 1987: 62). In demographic terms, the indicted study group can be distinguished from the general population by four characteristics: sex, race, economic class, and marital status. The 98 rape cases consisted of 91 (92.8%)

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blacks and 7 whites. The racial composition of the murder cases was also overwhelmingly black (85%). In comparison, the population of the county as a whole was only 51.4% black (M: 63). The predominance of blacks in the offender statistics is much higher than the national norm for 1986 of 47% black for rape (FBI, 1987: 182).

The ages ofdefendants ranged from 17 to 58years for rapists and 16 to 72 years for murderers. The average age of the rapists was 28.65 years, with a median age of 28, while murderers averaged 30.9 years, with a median age of 27. The median age for the county population was 29.5 years, indicating that rapists and murderers are distributed normally across age categories (U.S. Bureau of the Census, 1987: 62). The indicted murderers were predominantly male, 76 out of 90 (84.4%). Although a female under Georgia law can be charged with rape either as a principal in the second degree or as an accessory before the fact, none was contained in the study population.

Indicted rapists and murderers do not have stable family roots. Fully 55.1% of the rapists were unmarried at the time of the offense; another 9.2% were without a spouse due to separa- tion. Murderers show a similar lack of roots with 56.7% being single and 12.2% without a spouse due to separation at the time of the offense. Economic deprivation compounds the insecure status of the defendants. Only 54.8% of the rape offenders claimed completion of a high school education, and murderers only 59%. These rates are far below the county standard of 66% (M.) A high level of unemployment accompanied the lack of educational achievement. Indeed, 27.7% of the rape offenders and 39.2% of the murderers were unemployed at the time of arrest. The occupations of the employed tended in the direction of unskilled labor, such as laborers and low-wage service indus- tries. This over-representation of lower and working class of- fenders conforms to subcultural explanations of rape and violence (Amir, 1971).

B. Procedural Characteristics of Case Disposition

The time between the offense and arrest varied to a great extent. Only 24% of the rape offenders were arrested on the same day as the offense, although the median delay was five days.

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These figures are in marked contrast to the speedy arrests made for the crime of homicide. In the same jurisdiction, 87.8% of the defendants arrested for murder were apprehended o n the day of the offense. The difference in the lag time between arrests for rape and for murder can be explained by the delicate position of the rape victim. It is estimated that 90% of sexual assaults remain unreported (Patterson, 1988: 1D). Delay in reporting a rape is inevitable given the sensitive nature of the crime.

For rape, the average time between arrest and indictment was 47 days, with a median of 39 days. In general, rape cases were disposed of within four months of the indictment; the average time between the indictment and disposition was 126 days. For murder, the average time between arrest and indict- ment was 55 days, with a median of 50 days. Murder indictments were disposed of more rapidly than rapes, averaging only 118 days. The demand for a trial did not retard the process by more than o n e month for rape nor more than two months for murder (Table I).

T h e performance of the various legal counselors was comparable when measured in terms of the average time from indictment to disposition: public defenders (132 days o n rape cases, 118 for murder), court-appointed lawyers (123 days on rape cases, 106days for murder), and private attorneys (123 days on rape cases, 95 days for murder). However, when the cases are broken down by method of resolution, differences appear between the type of attorney and the speed of case resolution (Table 11). The greatest variance is in the speed that private attorneys handle rape cases. Private attorneys pled quickly compared to indigent counsel; yet when a trial was necessary,

TABLE I Time Between Indictment and Disposition by Method

Resolution Method Rape Murder # of days N # of days N

Plea 119.12 75 92.27 52 Jury llial 158.38 16 157.23 35

0 Bench llial 105.00 1 3 6 Missing Data - - - - -

- - - - - - - - - -

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TABLE I1 Time Between Indictment and Disposition by Attorney and

Method

Resolution Method P p e of Attorney Rape Murder

#ofdays N #of days N Plea Public Defender 133.26 15 95.09 11

CourtAppointed 122.95 22 83.53 13 Private 101.86 15 95.76 21

Jury ?ial PublicDefender 151.85 7 146.55 9 Court Appointed 134.00 1 136.50 10 Private 207.50 4 94.30 10

private attorneys took nearly two months longer to dispose of a case. Two reasons, although not an exhaustive list, for this protracted disposition are: (1) to increase billing time or (2) to better prepare a client’s case. Since private attorneys failed to obtain a single acquittal in a jury trial, the monetary rationale seems the more plausible explanation. In contrast, private at- torneys disposed of murder indictments with greater speed. This is true no matter whether the disposition occurred through plea bargaining (95.76 days) or through jury trial (94.30 days).

C. Characteristics of Case DisDositions

An analysis of the rape data reveals that eighty-four of the defendants were indicted for rape, 12 for aggravated assault with intent to rape, and 2 for attempted rape. A total of 79 defen- dants pled guilty either to the original charge or to a reduced charge; 19 offenders exercised their right to a trial (7 of whom were acquitted). The conviction rate of 93% (91/98) is compara- ble to the national rate of 92% for rape cases (U.S. Department of Justice: 1988).

Only 42 of the 91 defendants indicted for rape were con- victed. The remainder were found guilty of a lesser offense (Table 111). Sentence lengths varied in relation both to the

QUALITY OF ,JUSTICE 109

disposition and to the method of adjudication (plea or trial). The offenders who demanded a jury trial received much longer sentences upon conviction. The average sentence for all pleas was 83 months, while the average sentence for jury trials was 184 months. One rape conviction resulted in a life sentence and is excluded from the table. Fourteen of the offenders had their rape charge dead-docketed in exchange for a guilty plea to a lesser offense. Half of these cases involved sexual activity with a minor (Table IV).

TABLE I11 Disposition of Rape Indictments & Sentence Length bv Method

Disposition Offense Method Used Average in Months N

Plea 121.50 32

Bench Trial 96.00 1

Plea 120.00 1

Aggravated Assault All 94.40 15 With Intent to Rape Plea 84.00 14

Aggravated Assault All 60.00 8 Plea 60.00 8

Plea 36.00 1

Rape All 133.46 41

Jury P ia l 186.00 8

Attempted Rape All 120.00 2

Jury Trial 120.00 1

Jury Trial 240.00 1

Statutory Rape All 36.00 1

Incest All 36.00 1 Plea 36.00 1

Simple Battery All 12.00 8 Plea 12.00 8

Rape Dead-Docketed; All 52.29 14 Convicted Other Crime Plea 52.29 14

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TABLE IV Disposition of Cases With Rape CharRe Dead-Docketed

Disposition Sentence in Months N

Child Molestation 66.0 4 Sodomy 56.0 3 Incest 48.0 2 Aggravated Assault 48.0 2 Stautory Rape 72.0 1 Criminal Pespass 12.0 1 UGCSA (Drug) 24.0 1

The murder data reveal that only 24 of the 81 convicted defendants were found guilty of murder, with the remainder found guilty of a lesser criminal homicide (Table V). Fifty-four defendants pled guilty, while 36 exercised their right to a jury trial (9 of whom were acquitted). The conviction rate of 90% (81/90) is comparable to the rate of 91% (75/81) found in a national study (U.S. Department of Justice: 1988). This finding is surprising given that Southern states in general possess a conviction rate which exceeds the national average by 200% (Atlanta Cons titution: August 22, 1987: 1A).

TABLE V Disposition of Murder Indictments & Sentence Length by Method

Disposition Offense Method Used Average in Months N

Murder All Life 24

Voluntary Manslaughter All 167.43 42 Plea 166.00 36 Jury P i a l 176.00 6

Involuntary Manslaughter All 86.77 13 Plea 86.76 13

Reckless Conduct All 12.00 2 Plea 12.00 2

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Several studies have pointed out the importance of race and ethnicity as factors in sentencing (Zatz, 1985; Farnworth and Horan, 1980). There are some disturbing indications of racial discrimination in the study data. In every category of felony disposition, the average sentence for blacks surpassed the average sentence for whites. For example, blacks averaged a sentence of 134 months for a rape conviction compared to 120 months for whites. For aggravated assault with intent to rape, the average sentence for blacks was 40 months longer than, for white (100 to 60 months). For voluntary manslaughter, blacks received an average of 94 months, while whites received 69 months. However, t he low number ofwhite offenders (rape=7, murder= 13) prohibits ascribing a motive of racial animus o n the part of the prosecutor’s office.

I11

T h e quality of legal representation obtained by indigents is a much debated topic. Indigents constitute the largest category of criminal defendants. Nationally, about 65% of felony defen- dants are classified as indigent, although the rate could approach 90% in urban areas (Cole, 1989: 347). In 1986,63.8% (exclud- ing missing data) of offenders accused of rape and murder in Fulton County were entitled to state-sponsored legal counsel. The somewhat low rate could reflect the severity of the crimes in the study population. The magnitude of the demand by indigents for legal assistance signifies that nothing less than the integrity of the criminal justice system is at stake. How has the legal representation of indigents been evaluated? The general conclusion is that the type of attorney has little impact on the final disposition of a criminal case (Silverstein, 1965: 73; Taylor, e t al., 1973; Wice, 1983: 40; Jacob, 1986: 195). It would seem that indigents are not victims of inferior legal assistance.

This assessment is flawed in two ways. First, it fails to consider that the performance of legal counsel (private, public defender, or court-appointed) may vary depending o n the na- ture of the criminal charge. Offenses differ in terms of the resources and legal skills needed in preparing a defense. And second, previous research has not studied the three types of

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defense counsel within a single jurisdiction. Fulton County utilizes both a public defender’s office and a court-appointed system in representing indigents. Since criminal procedures can fluctuate widely even within a state, a common perspective has been lacking to make a valid comparison between types of attorneys. Fulton County enables such a uniform comparison.

Most indictments are resolved through the process of plea negotiation in which a defendant agrees to plead guilty in ex- change for a prosecutor’s recommendation of lenient treatment. An indictment culminates in a tria! most often when a plea bargain agreement cannot be arranged (or when the defendant is actually innocent). A good trial attorney may not be a good negotiator. For this reason, final dispositions concluded by plea bargains shall be analyzed separately from indictments disposed of through trials. The type of attorney may make a difference in either or both situations.

Excluding missing data, homicide defendants (41.6%) ex- hibit a slight preference to retain private counsel than indicted rapists (32.4%). This finding is surprising in light of the greater level of unemployment for homicide offenders (39.2% to 27.7% for rape offenders). The explanation may be that murder, in contrast to rape, is a capital offense carrying a potential penalty of death. The punishment may instill sufficient fear to locate the necessary funds to secure private counsel. A similar dis- parity is not reflected in the assignment of counsel to indigents. The public defender’s office handled 27.3% of homicide of- fenders and 32.4% of indicted rapists; court-appointed counsel accounted for 31.2% of homicide defendants and 35.5% of rape defendants.

A. Plea Bargaining

For a prosecutor, the goal of plea bargaining is to eliminate a time-consuming trial while still obtaining a conviction. A prosecutor weighs several factors in formulating a strategy toward each deEendant, with most attention given to three considerations: the nature of the crime, the likelihood of a conviction at trial, and the accused’s prior criminal history (Kaplan and Skolnick, 1987: 458-466). However, the role played by the type of defense counsel has been largely ignored

QUALITY OF JUSTICE 113

by research on the topic. For example, one study discovered a rush to enter into negotiated deals by public defenders in rela- tion to either private or court-appointed counsel (Oaks and Lehman, 1968: 176). Thus the type of defense counsel may constitute an independent factor in the decision to negotiate.

To begin with, it must be recognized that the prosecutor is not in the same bargaining position in the crimes of homicide and rape. Aconviction is more difficult to achievein the context of rape. No doubt exists a crime was committed in a homicide. This is not as true in the case of rape. Due to the absence of eyewitnesses, "processing decisions may depend less on an assessment of whether the victim and the assailant are the U of people who would have been involved (LaFree, 1989: 28)." In other words, the victim must be a convincing witness, an irrelevant consideration in a homicide. This fact weakens the prosecutor's bargaining position in many rape indictments.

Georgia law further undermines the prosecutor in negotiat- ing with indicted rapists. The state has been slow to enact an adequate "shield" law to protect a rape victim's sexual history from being employed as evidence in a trial. Under Georgia law, "evidence of the complaining witness's marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards" can be introduced in trial if it would support "an inference that the accused could have reasonably believed that the complaining witness con- sented to the conduct complained of in the prosecution" (O.C.G.A. 24-2-3). Hence, the victim must first establish that she was not in some way responsible for the defendant's be- havior.

The Georgia shield law, since revised, makes the victim's credibility a critical element in rape cases. According to a recent study, Georgia prosecu tors--unlike those in Michigan--fear taking a rape indictment before a jury ( A t l a n t a n s t i t u t i o n , October 9, 1989: D2). It can be hypothesized that prosecutors should depend more heavily on plea bargaining to dispose of rape indictments than murder indictments. As anticipated, negotiated deals were more frequently arranged in rape indict- ments (79.4%) in relation to murder indictments (54.4%). The rate of plea negotiation, however, fluctuates by the type of defense attorney. While homicide defendants were as likely to

. .

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plea bargain no matter the type of lawyer, rape defendants represented by court-appointed counsel reached negotiated deals at a far higher rate (95.8%) than if represented by either public defenders (68.2%) or private counsel (72.2%). What accounts for the discrepancy?

One reason could be that court-appointed attorneys lack the incentive to take a case to trial. Such lawyers are paid a standard fee, with separate scales for negotiated pleas and for trials. Compensation is not calculated on the basis of preparation time as for private counsel. Moreover, many court-appointed coun- sel are merely fulfilling an obligation to community service imposed by their law firm upon the newest members (Senna and Siegel, 1990: 376). Quite simply, these factors encourage the expedient resolution of a case by court-appointed counsel. Public defenders, in contrast, regularly shift assigned clients to other attorneys within their office to alleviate a caseload prob- lem (Gilboy and Schmidt, 1979: 2) Yet court-appointed counsel do not exhibit the same rush to negotiate a homicide indictment. Another factor must be considered: experience. Court-ap- pointed counsel fall into two categories, recent law school graduates or the incompetent (Moore, 1965). Under Georgia law, a defendant accused of rape is more likely to receive a novice attorney than a defendant indicted for murder. As the Georgia Supreme Court recently held, "an appointing trial court must also consideI the prior experience of the available lawyers

State, 269 GA 469, 470, 1989). Indigent rape defendants, in other words, may plea bargain too quickly due to the inex- perience of their legal counsel.

when choosing counsel in a death penalty case" ( h a d e o V,

B. Jury Trials

The same pattern of performance is not repeated before jury trials. A difference in performance appears in the defense of both rape and murder defendants, not in the context oE rape alone. In a trial for rape, the type of lawyer--public defender or private counsel--is crucial to the verdict. Court-appointed at- torneys have been excluded from analysis because only one jury trial for rape was conducted by such counsel.

QUALITY OF JUSTICE 115

A moderate correlation exists between the type of lawyer (public or private) and the jury’s verdict (guilty or not guilty) in rape trials (Cramer’s V=.63). The relationship is not in the anticipated direction. The ineffective performers a re the private attorneys. They failed to obtain a single acquittal (n=6) while the public defender’s office exonerated 57.1 % of its clients (n=7). This finding again underscores the importance of ex- perience. A public defender, unlike many private lawyers, is compelled to make frequent presentations before juries. T h e skills of litigation must clearly be developed, not purchased.

Dispositions for rape varied by type of attorney as well (Cramer’s V=.45). Court-appointed counsel seldom managed to accomplish a reduction on the original charge. Half the defendants represented by court-appointed attorneys, but only 36% for both public defenders and private lawyers, received a disposition on the original charge. This fact is perplexing since court-appointed counsel plea bargained all but one case. T h e deals arranged by court-appointed counsel a re clearly inferior and may reflect a desire to terminate a case quickly.

The legal assistance provided by court-appointed lawyers was not of similar low quality in the area of homicide. N o statistical variation by lawyer-type exists in the disposition oE murder indictments (Downing and Murphy, 1988: 8). How- ever, this was not true with respect to jury verdicts where trial outcomes varied by lawyer-type (Cramer’s V=.36). Public defenders again excelled in obtaining a superior acquittal ra te (33%, n=9) compared to either court-appointed (18%, n = l l ) or private (O%, n=10) attorneys. In murder trials, the factor of experience tends to equalize by lawyer-type. As before, supe- rior litigation skills are displayed by public defenders. T h e surprising conclusion is that the quality of representation received by indigents is not to be demeaned but envied where public defenders are involved.

CONCLUSION

Contrary to previous studies, the data under study indicate that the type of lawyer providing representation may constitute the most important variable in how an indictment is resolved.

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The public defender's office is the most successful at every aspect of legal assistance: reducing the original charge, arrang- ing lenient sentence lengths, and securing jury acquittals. Court-appointed counsel are at the opposite end of the spectrum in each category. They dispose of their cases as quickly as possible through a plea bargain, giving their clients no chance of vindication in court. Private attorneys appear to be some- where in the middle, pleading a large number of cases but giving some clients their day in court (though unsuccessfully).

It is ironic that the two forms of indigent defense represent both the best and the worst legal representation for a defendant. The sad part is that the assignment of defense counsel to an indigent is based on administrative criteria and not on the needs of the defendant. An indigent defendant in Fulton County is automatically assigned to the public defender's office. Court- appointed counsel is given only when the public defender's office is overloaded or a conflict of interest exists. This type of assignment system is common in districts using both methods of representation for indigents (Senna and Siegel, 1990: 373). Given the equitable distribution of indigent defendants by lawyer type, reassignment to an appointed counsel is a common occurrence.

The poor performance of court-appointed counsel suggests that sufficient resources should be made available to the public defender's office to handle all major felony cases. Georgia has traditionally been reluctant to fund indigent representation, ranking 44th nationwide in cost per indigent defense case in 1986 (Gaskins, 1988: 6). Funds must be made available to ensure that fair treatment under the law is available to all. It was Justice Hugo Black, author of the Gideon decision, who summarized it best in saying "there can be no equal justice where the kind of trial a man gets depends on the amount of money he has" (Kamisar, 1988: 27).

LEGAL CASES AND CODES

W e o v. State . 1989. 259 GA 479-70.

er v. H a m ' . 1972. 407 U.S. 25.

QUALITY OF JUSTICE 117

Gideon v. Wainwrieb. 1963. 372 U.S. 335

Dfficial Code of GeorPi a Annotat ed. 1981. Sec. 24-2-3

NOTES

The authors would like to express their sincere gratitude to the following individuals:

John Shope, Fulton County Superior Court Ad- ministrator; Ray Rensi, Chair, Social Sciences Department, NGC; Richard Mecum, Sheriff, Hall County, Georgia; Martha Nolan, Fulton County Superior Court Records Supervisor; Thomas McGreevy, Deputy Director, Georgia Crime Informa- tion Center;

'One case was excluded from the study due to the inability of the researchers to identi€y the individual. Inconsistencies existed in the computer record making proper identification impossible.

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