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Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes

2010; Cambridge University Press; Volume: 63; Issue: 1 Linguagem: Inglês

0042-2533

Jennifer Bennett Shinall, Jennifer Hope Bennett Shinall,

Legal Education and Practice Innovations

I. INTRODUCTION It's disgusting what he did, it's disgusting . . . his 'Dream Team' - 'Scheme Team' maybe is more accurate.1 Fred Goldman blamed defense attorneys when a Los Angeles jury found O.J. Simpson not guilty of murdering his son, Ron Goldman, and Nicole Brown Simpson on October 3, 1995. Yet Goldman was not only one who blamed defense attorneys for acquittal; much of media agreed that Simpson was guilty and had escaped his rightful punishment. As one New York Times reporter lamented, To watch Mr. Simpson slip away from justice . . . was an infuriating sight.2 People who believed in Simpson's guilt cited Johnnie Cochran's decision to play race card3 and his clever catch phrases like if it doesn't fit, you must acquit.4 Others blamed prosecuting attorneys. On day after verdict, author Scott Turow described prosecutors as doomed from start for their use of ugly tactics that . . . aroused suspicions about criminal justice system among members of racial minorities in Los Angeles and elsewhere.5 Yet O.J. Simpson is not only defendant who - according to popular opinion - has slipped away from justice because of his attorneys' skill. A jury acquitted late Michael Jackson of his child molestation charges in 2005.6 That same year, actor Robert Blake escaped charges of murdering his wife, Bonny Lee Bakley.7 And just two years earlier, a jury acquitted New York millionaire Robert Durst of murdering his neighbor, Morris Black.8 All three men had very expensive, well-known defense attorneys, and all three men faced similar accusations of slipping away from justice in press after their acquittals. More recently, Winkler, a preacher's wife from Selmer, Tennessee who killed her husband and fled with her children to Alabama coast, endured same scrutiny from popular press during her trial. Despite being accused of first-degree murder, her Dream Team of defense attorneys made murder no longer an issue.9 Instead, jury convicted Winkler of voluntary manslaughter, and judge sentenced her to only sixty-seven days in prison. As one journalist sarcastically noted after verdict, Mary Winkler's defense lawyers did just what they had to do to convince a jury not to convict her of murder, even though she shot her sleeping preacher husband in back with a shotgun.10 Even Winkler's own defense attorney said after trial that the verdict was most probably just.11 Clearly, much of media believes that an attorney can decide a case. Get a good enough attorney, story goes, and you can get off on anything. Yet belief in power of a good attorney extends far beyond popular opinion - and all way to Supreme Court. In many opinions, Justices have expressed concern about consequences of weak representation.12 But just how important is a good attorney? Can a skillful attorney actually change verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions - not only for high-profile defendants, but for everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to believe. Here, I define skill as qualities that an attorney brings to courtroom independent of his case's strength, such as rhetorical abilities, tactical strategies, and knowledge of law. Regardless of their skill, criminal defense attorneys do not have a statistically significant effect on verdict or sentencing outcomes. Prosecuting attorneys, on other hand, can influence trial outcomes. A jury is more likely to convict a defendant when prosecutor has a high level of skill. …