Academic journal article Vanderbilt Law Review

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

Academic journal article Vanderbilt Law Review

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

Article excerpt


"It's disgusting what he did, it's disgusting . . . his 'Dream Team' - 'Scheme Team' maybe is more accurate."1

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."2 People who believed in Simpson's guilt cited Johnnie Cochran's decision to "play the race card"3 and his clever catch phrases like "if it doesn't fit, you must acquit."4 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."5

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 2005.6 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 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."9 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."10 Even Winkler's own defense attorney said after trial that "the verdict was most probably just."11

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 highprofile 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. …

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