http://sixthamendment.org/how-public-defenders-struggle-with-ethical-blindness/ Pleading the Sixth: Do psychological factors force public defenders to rationalize sub-par performance in the face of excessive caseloads? And are these unconscious phenomena responsible for the failure to institutionalize caseload controls? These are just a few of the questions 6AC’s David Carroll explores with former public defender and current New England Law Professor, Tigran Eldred.
The National Association for Public Defense (NAPD) has triggered a critical debate as to whether public defenders with excessive caseloads can provide quality representation to their clients. (See articles by Andre Vitale and John Gross here, here and here.) Citing Professor Norman Lefstein’s exhaustive study, Securing Reasonable Caseloads: Ethics and Law in Public Defense, Professor Gross notes that psychological and organizational factors can “create an environment where excessive caseloads are regarded as normal.” These are themes that former public defender and current New England Law professor, Tigran Eldred, has explored in great detail in his seminal work Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases [65 Rutgers L. Rev. 333 (2013)]. The Sixth Amendment Center (6AC) encourages all defense providers and criminal justice stakeholders to read Professor Eldred’s full article. In an effort to further the debate, I sat down with Professor Eldred to explore the psychology of excessive caseloads. David Carroll: Can you give our readers a brief overview of what you mean by the term “ethical blindness”? Tigran Eldred: The central thesis of my work is that defense lawyers, like everyone, are influenced by a number of psychological factors (called “cognitive biases and heuristics”) that, under certain conditions, make it hard for them to appreciate their own limitations. The result, I believe, is that many lawyers with excessive caseloads simply do not realize when they are providing subpar performance to their clients. DC: Okay – let’s try to unpack this for our readers. Are you saying that the demands of excessive caseloads force public defenders into making quick decisions about cases everyday that that they themselves may not be consciously aware of? TE: That’s basically it. And, the scientific support for this comes from the world of “behavioral ethics.” In particular, three psychological factors are relevant to the excessive caseload discussion. First, we all experience what is known as “confirmation bias.” This is the tendency in all of us to seek out, interpret and remember information in a manner that supports our pre-existing beliefs. The second and related concept is “motivated reasoning.” Not only do we seek to confirm our pre-existing beliefs, but also we do so to reach conclusions that we prefer. Third, because of our general desire to think well of ourselves, we tend to experience an “overconfidence bias,” including the tendency to overestimate our abilities to act competently and ethically when confronted with difficult dilemmas. All of three of these factors occur unconsciously. We are tricked into believing that our choices are reasoned, even when often they are not. Our brains convince us our quickest decisions are solely the result of conscious and rational deliberation. But all the while we are blissfully unaware of how our pre-existing views, desires and self-conception can influence the judgments and decisions that we make. DC: So, we need some context here. Can you explain these theories within the specific debate of how public defenders respond to excessive caseloads? TE: Certainly. I agree with Professor Gross that defenders who have too much work often have only one option: to triage cases. Structurally, they are forced into focusing limited resources on a percentage of cases at the expense of many others – and on those cases that don’t get the same level of focus or resources, you wind up with an assembly line of quick plea dispositions. When this type of triage occurs, the psychological phenomena I have described can be expected to exert significant influence. For example, by starting with the premise that most cases will need to be disposed of quickly, lawyers will likely engage in confirmatory and motivated reasoning, unconsciously seeking reasons to justify this pre-determined conclusion. This can happen in a number of ways. For example, the lawyer might overestimate the strength of the evidence against the client or underestimate the value of additional investigation. Acts of omission, as Professor Gross notes, can have a profound effect on a case. When the lawyer fails to seek exculpatory material, to interview witnesses or to visit a crime scene – or fails to engage in many other forms of advocacy for a client – the lawyer is essentially confirming the pre-existing belief that no additional work for the client will be helpful. DC: In studying indigent defense services all across the country, I continually encounter public defenders that tell me that I should not be so dismissive of early resolution courts because they often result in favorable decisions to defendants. TE: Right, they’re playing the percentages. While in many instances it may be true that the best course of action is a quick plea bargain, it is also true that in many instances it is not. There is a significant chance that the decision to forgo additional work for the client is the product of the type of fast thinking I have described. And then, after the fact the process become self-fulfilling. The lawyer has decided that a quick plea is appropriate without further investigation. So the client is advised to take the plea quickly and the lawyer, laboring under the illusion that the decision was solely the product of rational deliberation, remains convinced of the propriety of the decision — unaware of the subtle psychological forces that conspire to influence the lawyer’s behavior. DC: So are you saying that lawyers with excessive caseloads can never act in their client’s best interests? TE: Not at all. To be sure, many lawyers provide excellent representation much of the time, despite almost always toiling under extremely difficult working conditions. This includes appropriately advising whenever a plea bargain is the best option. But the right to counsel is a right of the individual client. It is not constitutionally acceptable for public defenders to give great representation to 70% of their clients and fall short of the mark in 30% of the cases. It is not constitutional to provide excellent representation in only the most serious or high-profile cases and underperform in less serious cases. My point is that in the cases where lawyers provide subpar performance, the lawyers involved are likely to be fooling themselves into believing that adequate representation has been provided when it has not. DC: I agree. I have been to too many jurisdictions in too many states where public defense providers believe that it is better for clients to receive limited representation from the primary provider than representation by a conflict attorney, and use that as a justification for triaged justice. It comes off as some sort of “Superman” complex, which I guess is the definition of the “overconfidence bias.” Would you agree? TE: Yes. Everyone should be wary when they find themselves believing that they can handle a difficult situation better than most others. There are many other psychological aspects to this story too. A big one is the powerful psychological role that supervisors can play by dissuading subordinate lawyers from protesting excessive caseloads. Likewise, the informal norms that exist in many courthouses to discourage defense lawyers from slowing down the speedy disposition of cases have significant psychological effect. The routinization of the plea bargaining process, the ambiguity of the rules that govern lawyer behavior and the heavy cognitive load placed on lawyers because of excessive caseloads also are relevant. DC: So what is the answer to ethical blindness? TE: This is where the latest post by Mr. Vitale is so critical to the discussion. He suggests that indigent defense reform must occur on three fronts: system-building, public advocacy and culture change. I agree all three are critical to overcoming ethical blindness. Public defenders must work in systems that insulate them from undue political and judicial interference. Without structural independence there is little hope that public defenders can overcome these issues alone. That is why the work of your organization, the Sixth Amendment Center, is so important. It often takes an outsider’s perspective to see the ineffective representation stemming from carrying too many cases at once. Rather than focusing on public defense providers, you work with policymakers and criminal justice stakeholders to create systems that can take root and flourish. But it can also be a group of outsiders that force a jurisdiction to look at these issues through litigation, like the American Civil Liberties Union. DC: Thanks for the kind words. This is probably a good point to publicly acknowledge and thank you for the role New England Law|Boston has played in building partnerships between the 6AC and Boston-area law schools. However, the 6AC has always understood that system-building is only part of the answer. An indigent defense system is only as strong as the people in it. That is why the 6AC is openly supportive of public and private funding for organizations like the National Association of Criminal Defense Lawyers, Gideon’s Promise, the National Juvenile Defender Center and the National Association for Public Defense that provide everything from skills training to client-centered culture change. TE: Yes, that is it. As I state in my article, if lawyers learn to recognize their own ethical limitations, they will be better positioned to resist representing clients for whom they cannot provide competent representation. For example, ethically aware lawyers may start engaging in the type conduct required by the ABA Formal Ethics Opinion to withdraw from cases or refuse new appointments when cases become excessive. So they need systemic independence, outside review and culture change to invoke their independence when it comes to excessive caseloads. DC: And what about public advocacy? TE: I think we are all indebted to NAPD for creating a forum for this type of debate to flourish. Only by exposing and discussing these psychological underpinnings is there hope to overcome them. ‹ ABA clarifies caseload standards for South Carolina prosecutors Georgia consent decree requires competent counsel for children and adults › Posted in Pleading the Sixth Tagged with: caseloads & workloads, ethical duties, independence, standards - system, Tigran Eldred Search for: explains what you've just read in the news, providing historical, legal, and standards-based context to our nation's ongoing efforts to provide a meaningful right to counsel. Receive Email Notification Want to receive an email notification whenever we add a Pleading the Sixthpost? Please sign up using the form below. Sign up now!
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http://www.sfgate.com/crime/article/Worst-case-scenario-Defending-child-molester-a-2919122.php For 26 years, Carl Spieckerman has represented the underbelly of society, but it took Curtis Dean Anderson -- the Vallejo kidnapper and molester of an 8- year-old girl -- to test his resolve.
As the notorious case went to trial last month, the whole Bay Area was watching. TV cameras mobbed the hallways of the courthouse and Spieckerman's client made proud confessions from his jail cell to the press. Anonymous women left Spieckerman nasty voice-mail messages saying he was worse than a pedophile for representing Anderson. "Bad things happen to people like you," said one message "People like me?" Spieckerman thought. The words echoed in his mind. After years representing destitute people assigned to him by the court in murder, burglary, drug and domestic violence cases, Spieckerman was accustomed to feeling misunderstood. Spieckerman, 57, is regarded by his fellow attorneys in Solano County as a straight-shooter. He's a workhorse who has 12 trials on his calendar in the next four months. When he's not overworked, he worries he's losing his edge. He's not flamboyant or theatrical, but takes pride in the times he has whittled away at the prosecution to win acquittals. Judges often turn to him with their toughest, least glamorous cases -- people accused of murders, defendants who've fired multiple attorneys, and unruly people like Anderson, who nobody else wants and who won't follow their attorney's advice. The stocky attorney wears a grey beard, round eye-glasses, and collar- length hair brushed back from his temples. His light blue eyes are surrounded by deep shadows and his broad forehead is criss-crossed with wrinkles. Private-practice defense attorneys have a sometimes unfair reputation for chasing ambulances, but most must hustle for private clients because that's usually where the money is. "It's a very difficult business, quite honestly," said Solano County Conflict Defender Dane Besneatte, who used to have his own practice. "(You're) having to make people pay and trying to collect money and (do) the business end of it." While most attorneys' caseload include perhaps 10 to 20 percent court- appointed cases, the vast majority of Spieckerman's cases are assigned to him by the court because the public defender has a conflict of interest. For most court-appointed cases, Spieckerman earns $55 an hour, sometimes more in tough cases or for particularly ornery clients. Until about 10 years ago, Spieckerman used to accept a wider range of cases, including divorce and child custody disputes. But he tired of parents calling him at 8 a.m. Monday morning to complain their spouse delivered their child home 15 minutes late. He hadn't the inclination to hustle for clients and decided his heart was in criminal defense. He likes the mental challenge and when he wins a case, it's a professional victory. "That's what you live for, that rush. You feel great," Speickerman said. Ever since Spieckerman was a young man and an Army sergeant derisively ordered Spieckerman and the other "college boys" to empty the toilet bowls and clean them, Spieckerman has been his own boss. He graduated from the night law school at John F. Kennedy University in Walnut Creek and two years later opened his own practice a block from the Vallejo courthouse. Spieckerman visits his clients in jail most weekends, although once in awhile he'll go camping by himself. Sometimes he cooks for relaxation, but most evenings, his wife says, he pores over case files at home. Spieckerman works in a utilitarian second floor office in a non-descript stucco building, with white walls, a brown carpet and basic padded metal chairs. His wife helps him out, often working 60 hour weeks, but he doesn't have a secretary or other staff. His bread and butter are clients like a young man recently charged with three felonies in a trailer-park burglary. Spieckerman shook his head when the man was late to his own preliminary hearing. But ultimately the judge ruled there wasn't enough evidence to hold him for two of the alleged felonies. "They're just these dumb kids, hanging around and drinking," said Spieckerman. Spieckerman refused his wife's request to drop Anderson's case. And when one of his step-daughters asked why he couldn't just "throw" the case -- that is, not present an aggressive defense -- he said that was impossible. Spieckerman had invested his adult life in a principle, and Anderson was going to get the best he had to offer."People say you've got to believe in the defendant before you work as hard for them. I don't believe that," said Spieckerman. "You still try to do the best you can because that's your duty, both to your client and society and the concept of justice," he said. Spieckerman approached defending Anderson as he has other tough cases. "Sometimes you're pretty much check-mated from the time you start. You make sure whatever evidence there is, you get it in front of them (the jury)." he said. Spieckerman read in police reports that the 8-year-old girl's friends had said she wanted to run away. When Spieckerman asked the little girl on the witness stand if that was true, she denied it. That was the basis for his defense. Spieckerman said he never set out to prove the girl wanted to go with Anderson, but he wanted to show she was capable of not telling the truth, and that not every detail of her story was necessarily accurate. His cross-examination of the girl was fairly mild, but during his closing statements when she wasn't in court, he accused her of lying. Spieckerman didn't expect to get Anderson acquitted of all charges, but he hoped he could shave the sentence down from 250 years in prison to 70 or 80. In part, it was a matter of professional pride. The public, however, thought his argument was abhorrent. "Who is the real sociopath; Carl Spieckerman (the lawyer) or the child molester Curtis Anderson?" one woman wrote to the Chronicle. "Some day Carl Spieckerman will have to answer for this and I would suspect he will rue the day." The trial was an especially tough week for Spieckerman. Fellow defense attorneys Dan Russo and Amy Morton sent him flowers with a card: "You're our hero." "I think a lot of lawyers would have been so consumed with the contempt that the general public felt," said Russo. "(Spieckerman) always gets the worst cases and the most difficult defendants and it would be easy to just be going through the motions and my experience with Carl is he doesn't just go through the motions." Stephanie Kahalekulu says she privately cursed Spieckerman during the trial. "After I heard Spieckerman, I thought how can you do this? How can you defend this person? He may get off. He may be let free," said Kahalekulu. Now, Kahalekulu said she harbors no grudge against Spieckerman. "One thing I appreciated about Spieckerman was that he did not torment (the little girl)," she said. Solano County Deputy District Attorney Donna Stashyn has faced Spieckerman in a number of cases, including Anderson's. She said he's respected by prosecutors as well. "In a case like this, someone's gotta represent him and all you can hope for is it's a good, fair attorney and I think that's what Mr. Spieckerman is," she said. Representing Anderson was the toughest thing Spieckerman has done professionally. His family ultimately showed their support by sitting through parts of the trial. His son, Damian Spieckerman, said he is proud of his father. "I think he represents his clients well and I think he has a good heart. " said Damian Spieckerman. "I think it's really hard and sad for him to walk around and know that so many people look at him and don't see any of that." Spieckerman, 57, is regarded by his fellow attorneys in Solano County as a straight-shooter. He's a workhorse who has 12 trials on his calendar in the next four months. When he's not overworked, he worries he's losing his edge. He's not flamboyant or theatrical, but takes pride in the times he has whittled away at the prosecution to win acquittals.Judges often turn to him with their toughest, least glamorous cases -- people accused of murders, defendants who've fired multiple attorneys, and unruly people like Anderson, who nobody else wants and who won't follow their attorney's advice. The stocky attorney wears a grey beard, round eye-glasses, and collar- length hair brushed back from his temples. His light blue eyes are surrounded by deep shadows and his broad forehead is criss-crossed with wrinkles. Private-practice defense attorneys have a sometimes unfair reputation for chasing ambulances, but most must hustle for private clients because that's usually where the money is. "It's a very difficult business, quite honestly," said Solano County Conflict Defender Dane Besneatte, who used to have his own practice. "(You're) having to make people pay and trying to collect money and (do) the business end of it." While most attorneys' caseload include perhaps 10 to 20 percent court- appointed cases, the vast majority of Spieckerman's cases are assigned to him by the court because the public defender has a conflict of interest. For most court-appointed cases, Spieckerman earns $55 an hour, sometimes more in tough cases or for particularly ornery clients. Until about 10 years ago, Spieckerman used to accept a wider range of cases, including divorce and child custody disputes. But he tired of parents calling him at 8 a.m. Monday morning to complain their spouse delivered their child home 15 minutes late. He hadn't the inclination to hustle for clients and decided his heart was in criminal defense. He likes the mental challenge and when he wins a case, it's a professional victory. "That's what you live for, that rush. You feel great," Speickerman said. Ever since Spieckerman was a young man and an Army sergeant derisively ordered Spieckerman and the other "college boys" to empty the toilet bowls and clean them, Spieckerman has been his own boss. He graduated from the night law school at John F. Kennedy University in Walnut Creek and two years later opened his own practice a block from the Vallejo courthouse. Spieckerman visits his clients in jail most weekends, although once in awhile he'll go camping by himself. Sometimes he cooks for relaxation, but most evenings, his wife says, he pores over case files at home. Spieckerman works in a utilitarian second floor office in a non-descript stucco building, with white walls, a brown carpet and basic padded metal chairs. His wife helps him out, often working 60 hour weeks, but he doesn't have a secretary or other staff. His bread and butter are clients like a young man recently charged with three felonies in a trailer-park burglary. Spieckerman shook his head when the man was late to his own preliminary hearing. But ultimately the judge ruled there wasn't enough evidence to hold him for two of the alleged felonies. "They're just these dumb kids, hanging around and drinking," said Spieckerman. Spieckerman refused his wife's request to drop Anderson's case. And when one of his step-daughters asked why he couldn't just "throw" the case -- that is, not present an aggressive defense -- he said that was impossible. Spieckerman had invested his adult life in a principle, and Anderson was going to get the best he had to offer."People say you've got to believe in the defendant before you work as hard for them. I don't believe that," said Spieckerman. "You still try to do the best you can because that's your duty, both to your client and society and the concept of justice," he said. Spieckerman approached defending Anderson as he has other tough cases. "Sometimes you're pretty much check-mated from the time you start. You make sure whatever evidence there is, you get it in front of them (the jury)." he said. Spieckerman read in police reports that the 8-year-old girl's friends had said she wanted to run away. When Spieckerman asked the little girl on the witness stand if that was true, she denied it. That was the basis for his defense. Spieckerman said he never set out to prove the girl wanted to go with Anderson, but he wanted to show she was capable of not telling the truth, and that not every detail of her story was necessarily accurate. His cross-examination of the girl was fairly mild, but during his closing statements when she wasn't in court, he accused her of lying. Spieckerman didn't expect to get Anderson acquitted of all charges, but he hoped he could shave the sentence down from 250 years in prison to 70 or 80. In part, it was a matter of professional pride. The public, however, thought his argument was abhorrent. "Who is the real sociopath; Carl Spieckerman (the lawyer) or the child molester Curtis Anderson?" one woman wrote to the Chronicle. "Some day Carl Spieckerman will have to answer for this and I would suspect he will rue the day." The trial was an especially tough week for Spieckerman. Fellow defense attorneys Dan Russo and Amy Morton sent him flowers with a card: "You're our hero." "I think a lot of lawyers would have been so consumed with the contempt that the general public felt," said Russo. "(Spieckerman) always gets the worst cases and the most difficult defendants and it would be easy to just be going through the motions and my experience with Carl is he doesn't just go through the motions." Stephanie Kahalekulu says she privately cursed Spieckerman during the trial. "After I heard Spieckerman, I thought how can you do this? How can you defend this person? He may get off. He may be let free," said Kahalekulu. Now, Kahalekulu said she harbors no grudge against Spieckerman. "One thing I appreciated about Spieckerman was that he did not torment (the little girl)," she said. Solano County Deputy District Attorney Donna Stashyn has faced Spieckerman in a number of cases, including Anderson's. She said he's respected by prosecutors as well. "In a case like this, someone's gotta represent him and all you can hope for is it's a good, fair attorney and I think that's what Mr. Spieckerman is," she said. Representing Anderson was the toughest thing Spieckerman has done professionally. His family ultimately showed their support by sitting through parts of the trial. His son, Damian Spieckerman, said he is proud of his father. "I think he represents his clients well and I think he has a good heart. " said Damian Spieckerman. "I think it's really hard and sad for him to walk around and know that so many people look at him and don't see any of that." |