This study analyzes the performance of attorneys in the federal indigent defense system using the fact that cases are randomly assigned between CJA attorneys and federal public defenders. In an effort to ensure ex ante fairness, each federal district assigns an annually determined fixed proportion of the cases to each group of attorneys.

Not so. In Colorado, for example, all indigent defense cases go to the Federal Defenders' office and only if they have a conflict (usually in multi-defendant cases since a lawyer generally can only represent one client in a case), does a CJA panel lawyer get appointed. In other words, if it's a single defendant case, a CJA lawyer never sees it unless the PD's office has some other type of conflict, like having represented a defendant in a prior case who ratted out the defendant in the new case, or if it's a case that has been going on a while and the client successfully petitions the Court to replace his PD with another lawyer.

In a multi-defendant case, the first one to appear before the court gets the public defender, and the remaining indigent defendants get CJA lawyers. Assignment doesn't occur, as the author implies in a footnote, either randomly or by the defendant's number in the list of indictees. It goes by who first appears before the court, meaning which one is arrested first. The first one to appear before the court gets the PD, regardless of their placement number on the list of indictees, then CJA lawyers are randomly assigned to represent the rest.

Yet, the author of the study says,"Since the probability with which a defendant receives a type of counsel is dependent on his or her defendant number within the case, I limit my analysis to the “first” defendant."

Several more times she describes the "first defendant" as the first one listed on the indictment rather than the first to appear before the court and request appointed counsel. Counsel isn't assigned until a defendant appears before the court. It's not like the Clerk's office assigns counsel when an Indictment is returned. There's no way to even know at that point which of the defendants are going to be indigent and requesting court appointed counsel as opposed to hiring private counsel.

The author also rails about the poor quality and inexperience of CJA attorneys.

Years ago, I served on and then chaired our federal court's Standing CJA committee that was responsible for selecting lawyers for permanent placement on our 150 lawyer CJA panel when vacancies arose. Inexperienced lawyers don't get on. Lawyers without federal sentencing guideline experience don't get on. Lawyers whose practice consists mostly of wills and estates or divorces don't get on. Lawyers with disciplinary problems don't get on.

As for 8 months difference in sentences, give me a break. In multi-defendant drug cases our clients are looking at mandatory minimum 10 year sentences if not 30 years to life. There may be 20 or more defendants in the case. I highly doubt the conclusion that the client who gets, say 16 years, 8 months or even 6 years,8 months had a better lawyer than the client who got only 16 years or 6 years. The outcome is more likely a result of who flips first (or last, which also can be a good bargaining chip), who refused to flip on principle and a host of other factors, too numerous to mention here.

Of course, the author of the study isn't a lawyer, but an economist, so these distinctions may have eluded her.

Then there's this grand conclusion:

CJA panel attorneys, on average, have less experience and attended lower “quality” law schools. This difference in experience and law school quality, combined with the effect of wages and caseload explain over half of the overall difference in expected sentence.

The author bases that finding on an examination of cases in a whopping three federal districts (what about the other 48?)

Later, she admits, "These districts were not chosen randomly and are not representative of the nation." So why include the findings at all?

The remainder of her conclusions, the author says, are restricted to "the set of districts that appear to randomly assign cases between two groups of lawyers."

How many are those? Check out footnote 11, in which she excludes from her study:

Districts with no cases covered by public defenders are: Eastern District of Wisconsin , Southern District of Georgia, Northern District of Alabama , Eastern District of Kentucky, Maine, Northern District of Mississippi, Southern District of Mississippi , Western District of North Carolina, North Dakota, Western District of Virginia, Northern District of West Virginia,. Districts with very few cases covered by public defenders are: Western District of Wisconsin (.92), Rhode Island (.99), Vermont (.88), Eastern District of Virginia (.97), Middle District of Georgia (.99), Northern District of Indiana (.94), Northern Marina Islands (.98), and South Dakota (.89).

Nor do I have any idea what her basis is for saying the remaining districts assign cases randomly between PD's and CJA lawyers. As I said above, it's not the case in Colorado. But the word "Colorado" doesn't even appear in the study.

Another suspect conclusion:

The difference in the probability of being found guilty combined with the lower plea rates by CJA panel attorneys suggests that: 1) CJA attorneys are performing significantly worse at trial and/or 2) CJA panel attorneys are not taking the “right” cases to trial.

How is she making a judgment call on what is a "right" case to take to trial? As if that can be determined by simply the crime charged and the possible penalty or the result? A lot more goes into the equation than that. Does the evidence against a particular defendant, both quantitatively or qualitatively have no role here? Again, too many factors go into that calculation to list here, but few, if any of them are statistical.

I have high praise for both federal public defenders and CJA lawyers. We all know state systems are very broken in some parts of the country, due to lack of adequate funding, but this study didn't look at them -- only at the federal system.

The author smears with far too broad a brush and a poor set of statistical criteria in my opinion. I'm glad to see that one federal defender contacted by the Times about the study agrees with me:

Jon M. Sands, the federal public defender in Arizona, said he did not recognize the picture painted in the study. Court-appointed lawyers, Mr. Sands said, “are seasoned and committed, and their sentences on the whole don’t vary that much from those obtained by public defenders.”