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Vanderbilt Law Review

First Page

267

Abstract

Fred Goldman blamed the 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 the only one who blamed the defense attorneys for the acquittal; much of the 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." People who believed in Simpson's guilt cited Johnnie Cochran's decision to "play the race card" and his clever catch phrases like "if it doesn't fit, you must acquit." Others blamed the prosecuting attorneys. On the day after the verdict, author Scott Turow described the prosecutors as "doomed from the start" for their use of "ugly tactics that . .. aroused suspicions about the criminal justice system among members of racial minorities in Los Angeles and elsewhere."

Yet O.J. Simpson is not the only defendant who-according to popular opinion-has slipped away from justice because of his attorneys' skill. A jury acquitted the late Michael Jackson of his child molestation charges in 2005. That same year, actor Robert Blake escaped charges of murdering his wife, Bonny Lee Bakley. And just two years earlier, a jury acquitted New York millionaire Robert Durst of murdering his neighbor, Morris Black. All three men had very expensive, well-known defense attorneys, and all three men faced similar accusations of slipping away from justice in the press after their acquittals. More recently, Mary Winkler, a preacher's wife from Selmer, Tennessee who killed her husband and fled with her children to the Alabama coast, endured the same scrutiny from the popular press during her trial. Despite being accused of first-degree murder, her "Dream Team" of defense attorneys made "murder no longer an issue." Instead, the jury convicted Winkler of voluntary manslaughter, and the judge sentenced her to only sixty-seven days in prison. As one journalist sarcastically noted after the 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 the back with a shotgun." Even Winkler's own defense attorney said after trial that "the verdict was most probably just.""

Clearly, much of the media believes that an attorney can decide a case. Get a good enough attorney, the story goes, and you can get off on anything. Yet the belief in the power of a good attorney extends far beyond popular opinion-and all the way to the Supreme Court. In many opinions, Justices have expressed concern about the consequences of weak representation.12 But just how important is a good attorney? Can a skillful attorney actually change the 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 high- profile defendants find themselves in court, the 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 the 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 the qualities that an attorney brings to the courtroom independent of his case's strength, such as rhetorical abilities, tactical strategies, and knowledge of the law. Regardless of their skill, criminal defense attorneys do not have a statistically significant effect on the verdict or sentencing outcomes. Prosecuting attorneys, on the other hand, can influence trial outcomes. A jury is more likely to convict a defendant when the prosecutor has a high level of skill. Although important for many reasons, prosecutorial skill is particularly critical since the prosecution has the burden of proof in a criminal trial. This outcome that emphasizes the impact of prosecutorial skill-running so contrary to our everyday beliefs- suggests that we have been focusing on the wrong side. Just like Fred Goldman, we are quick to blame the defense attorneys when we think a high-profile defendant has slipped away from justice. For more low- profile defendants, we are overly preoccupied with the adequacy of, and the disparities in, defense attorneys. Yet we should really be concerned about the disparities in prosecutors.

To demonstrate the importance of prosecuting attorney skill, Part II of this Note first considers previous literature from law and other disciplines on the impact of attorney skill. Part III discusses the data set used to conduct this study, and Part IV outlines the model of the attorney skill effect. Part V gives the results of the data analysis and demonstrates the effect of prosecuting attorney skill on trial outcomes-and the lack of effect of defense attorney skill on trial outcomes. Part VI argues that public attention should shift away from defense attorneys and onto prosecutors. If we expect defendants to receive a fair trial, we need to devote more resources to ensuring that prosecutors are well qualified and adequately trained to eliminate the disparities between them. Part VII concludes by relating these results to the attorney skill effect so often discussed in the popular press.

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