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Thursday Roundup

Getting to guilty.  A couple of years ago, the Yale Law Journal published a paper with the beguiling title, How Much Difference Does a Lawyer Make?  The Effect of Defense Counsel on Murder Case Outcomes. (Okay, beguiling to me.  Victoria's Real Secret:  Sex Tips from the Victoria's Secret Models might be more in line with the general definition of that word.)  The "startling" findings, based on a study of Philadelphia homicide cases, were trumpeted in the New York Timesthe study found that the conviction rate of defendants with public defenders was 19% lower than those with court-appointed lawyers, and their expected time served in prison was 24% lower.  They were also far less likely to get a life sentence.

Turns out the Times got part of that wrong:  the study's authors found no difference in conviction rates.  They did find the difference in time served and the likelihood of getting a life sentence, but a new paper by law professor Jeffrey Bellin, Attorney Competence in an Age of Plea Bargaining... and Econometrics, takes a look at the data and comes up with a fascinating conclusion (okay, okay, fascinating to me; see above):  the reason for the disparity was because public defenders were much more effective in getting their clients to plead guilty, and thereby avoid the usual consequences that follow from conviction after trial:  conviction on more serious charges, and lengthier sentences.

Bellin notes the significance of these findings in light of the Supreme Court's decisions last year in Missouri v. Frye and Lafler v. Cooper, which highlighted the attorney's role in plea bargaining.  Bellin gives various reasons for "the conclusion that PDs' relative advantage is overcoming client resistance to pleading guilty" (or, as he phrases it elsewhere, "not taking innocence for an answer"), and some are good and some not so much.  (At one point, he seems to suggest that reducing reimbursement rates for assigned counsel who go to trial might be an appropriate disincentive, before backing off of that.)  Nonetheless, his suggestion that "it may be that a lawyer's celebrated willingness (and even ability) to go to trial is one of the most hazardous attributes of an assigned attorney" is certainly a thought-provoking one. 

A night in the pokey.  A friend of mine alerted me to the fact that the OSBA is running a 3-hour seminar on contempt of court, and suggested that at the $269 walk-in price for non-members, it would be more economically efficient for her to get one of the judges sufficiently offended to throw her in the slammer overnight.  The seminar does include 1 hour of professionalism.  I suppose at the $269 price, the powers that be figured that an hour of ethics might prove a bit too ironic.

There oughta be a law.  The Plain Dealer recently went the "e-edition" route, your morning paper coming to your iPad via an app which is completely nonfunctional.  It still publishes a daily edition, it just doesn't deliver it to homes, suggesting that whoever came up with this business model is possessed of less than Jobsian vision. 

Why it bothers to publish at all is a question that comes to mind after reading  the editorial in Saturday's paper applauding the effort of a GOP state representative to include not just administrators and teachers, but "any person employed by a public or non-public school" within the ambit of the sexual battery laws prohibiting sex with students.  This was prompted by the tragic tale out of a Stark County high school, where a cafeteria worker had sex with several male students.  The PeeDee tells us that "in the eyes of a student, a cafeteria worker, janitor, or bus driver is an authority figure, just by virtue of being an adult."  This video shows the awesome power wielded by bus drivers (and these were elementary school students) 



And if you went through high school thinking of cafeteria workers or janitors as "authority figures," you were probably routinely beaten with sticks by the other students.

On the very next page we learn that another GOP state representative has introduced a bill to allow the death penalty to be imposed for rape, sexual battery and improper sexual contact with a minor, if the defendant has a previous sex crime conviction.  This idee brillante was prompted by the recent case of Ariel Castro; the representative who proposed the law apparently believes that evil-doers will not be sufficiently deterred by Castro's sentence of 1,000 years in prison, to run consecutive to the sentence of life without parole.  The bill's sponsor conceded that the legislation wouldn't even apply to Castro, since he had no prior sexual convictions.  And then there's the little problem of the Supreme Court's 2008 decision in Kennedy v. Louisiana, holding that capital punishment can't be imposed for a non-homicide case.  That one involved child rape with particularly horrific details, so I'm not sure how I see the Court approving it for "improper sexual contact with a minor."  But who knows?  Maybe we can muster the five votes to overrule Kennedy, and then we can get on with the business of executing cafeteria workers.

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