Guilty Pleas and Barristers\u27 Incentives: Lessons from England

When considering the defendant\u27s plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article. The goal is to align the defender\u27s selfish interests with the defendant\u27s need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant\u27s expense. By contrast to most American practice, the method of compensating barristers, together with the threat of sanction for misbehavior, actually inclines barristers to prefer a trial over a guilty plea. As a result, when recommending a guilty plea, the barrister is arguably trying to protect the defendant because he acts against his self-interest in doing so. Could American jurisdictions borrow from English practice, so that the lawyer\u27s interests are more coextensive with the defendant\u27s when considering the defendant\u27s plea? The answer is in general yes, even as the specifics of English arrangements defy adoption. This article addresses the barrister\u27s and lawyer\u27s interests in Parts I and IV; however, it begins in Part I by explaining the barrister\u27s relationship with the defendant. In doing so it uncovers the tension between the interests of each and indicates how, and how not, that tension is resolved to align their interests. Part II of this article considers the erroneous reasons why critics believe barristers ignore the defendant\u27s interests to pursue their own. In conclusion, Part V considers lessons the American criminal system can learn from England about how to align the lawyer\u27s interests with those of the defendant. Alignment is possible if the lawyer has as much incentive to try the case as to end it by guilty plea

The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One

The fifth amendment\u27s privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person\u27s assertion nor benefit therefrom. Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. Witness, subpoenaed by the defense to testify during Defendant\u27s trial, informs defense counsel prior to trial that he will assert the fifth amendment and refuse to testify. In turn, defense counsel notifies the judge of Witness\u27 intent. The court conducts a hearing to learn whether Witness will exercise the fifth amendment privilege not to testify, and to decide whether he may do so. During the hearing, Witness refuses to answer questions, the truthful answers to which, the defense contends, would substitute Witness for Defendant as the culprit. In light of the defense\u27s startling contention and other evidence of Witness\u27 guilt that the defense unwraps, the court understandably accepts Witness\u27 claim that he might incriminate himself if he were to testify truthfully. Thus, the court holds that Witness need not testify

Ex Post Facto Payments in Legally-aided Criminal Cases in the Old Bailey

A much more pervasive scheme for overseeing the reasonableness of fees charged by legal professionals exists in England than in the United States. In England, for example, with or without a specific agreement over the fee, the client can challenge the solicitor\u27s charges, and the court or the Law Society will assess their reasonableness.\u27 Similarly, as part of assigning costs to the losing party, the reasonableness of the winning solicitor\u27s claim for fees is evaluated. The lay client can even dispute the reasonableness of the barrister\u27s fee after the fact. In the United States, by contrast, lawyers hammer out agreements with private clients, in civil or criminal matters, that, except in contingency fee arrangements or with exploitative arrangements, are policed only by the lawyer\u27s risk that the client will change lawyers, lured by a more congenial fee. And with no legal aid in civil matters in America, private lawyers representing indigent criminal defendants are paid a set amount by hour, by act, or by case, almost never with any prospect of enhancement in light of the case\u27s difficulty, and without much likelihood of review after the representation has ended to assess the reasonableness of the total fee sought. Generally today in England, and before 1997 in the bulk of legallyaided criminal cases, the defending barrister\u27s and solicitor\u27s fees were fixed, as is universally true with lawyers\u27 remuneration in parallel settings in the United States. In the most serious criminal cases underwritten by legal aid, however, until 1997 the defending barrister\u27s and solicitor\u27s fees were both calculated after each\u27s representation had ended. The process of making those ex post facto calculations is the subject of this article. There is good reason to examine this now-eclipsed method of paying legal professionals. As apparently the first attempt (or at least publicized attempt) to describe and evaluate the process of ex post determination of legal professionals\u27 fees, this study suggests the need to expand the inquiry, to examine ex post determinations in civil matters as well. An assumption of any scheme that has third parties test the reasonableness of a legal professional\u27s claim for compensation is that the results are consistent and predictable within an acceptable range of deviation. Moreover, the legal professionals must be satisfied that the distinctions which lead one Queen\u27s Counsel, say, to be paid less than another are justifiable. If these criteria are not met, it is possible that solicitors and barristers will refuse to represent certain sorts of lay clients4 or will be reluctant to perform some aspect of representation that they would otherwise undertake if not worried about being denied appropriate recompense. Section II introduces the current and discarded systems of compensating defending advocates in legally-aided, criminal cases. Section III describes and evaluates the results of the examination of 63 files taxed or being taxed at the Old Bailey (the Central Criminal Court) in London. Section IV summarizes the results of the study

Federal Habeas Corpus and Ineffective Representation of Counsel: The Supreme Court Has Work To Do

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court\u27s landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had deliberately bypassed the procedural opportunity to raise the claim; the Court defined deliberate bypass in terms of a defendant\u27s intentional and voluntary relinquishment of a known right. Even when, 2 years later, in Heny v. Mississippi, the Warren Court ruled that state procedural defaults could bar post-conviction state review as well as direct Supreme Court review of a federal claim, it left open the Fay avenue to federal habeas relief. But the Warren Court left several crucial questions unresolved for lower courts. Did the defendant or the attorney control the defense case for the purposes of habeas law? If counsel\u27s decision not to raise a constitutional claim by objecting at trial could eliminate the defendant\u27s right to get all state post-conviction review and direct review by the Court, could that decision also ever eliminate the defendant\u27s right to federal habeas review of the claim? If so, were there nonetheless certain federal rights that only the defendant could waive before federal habeas review would be barred? If counsel\u27s decision could bind the client, what sort of decision did counsel have to make? Could the attorney\u27s decision not to object to a constitutional infringement bind the client even if the attorney had failed to research the relevant law, or investigate the facts, or appreciate the relationship of the law to the facts? Could the defense counsel bind the defendant if the counsel did not even know an objection was possible? Could the defendant challenge the competency of the counsel\u27s decision, even if that decision barred all review of the merits of the issue counsel did not raise? Which side--the defense or the government--had the burdens of production and persuasion on deliberate bypass

The Attempt to Improve Criminal Defense Representation

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts. The defendant\u27s only remedy against his attorney\u27s ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for testing an attorney\u27s representation should be designed simply to provide a fair verdict for the individual defendant, or whether it should be designed to prod attorneys to perform better and to encourage trial courts to police counsel\u27s representation

Guilty Pleas or Trials: Which Does the Barrister Prefer?

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients\u27 detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, this article concludes that, as in England, barristers\u27 incentives lead them to prefer trials. Thus, when barristers in Melbourne or Sydney recommend a guilty plea, they are arguably thinking of the defendant\u27s interest rather than their own

Representing Indigents in Serious Criminal Cases in England\u27s Crown Court: The Advocates\u27 Performance and Incentives

While indigent defendants charged with serious criminal offenses can be represented by lawyers in the United States and by barristers and solicitors in England and Wales. Gauging the quality of that help is an important but elusive inquiry. This article has two purposes: to map how the indigent criminal defendant charged with very serious offenses is represented in England\u27s Crown Court, and to examine whether economic incentives can induce the defendant\u27s representatives to perform as expected. While barristers profess to be skilled advocates, and while many lawyers have likewise extolled the barrister\u27s advocacy, testing the point is extremely difficult. Apart from observing trials or reading memoirs, there is scant evidence to study. The information often used to evaluate the effort of lawyers--challenges by disgruntled defendants to the effectiveness of the lawyer\u27s efforts--hardly exists in England. Without a better understanding of how the criminal defendant is represented in England, lawyer-advocates may think themselves as inept as many critics claim they are when compared with their barrister cousins. If barristers do perform better than lawyers, why is this so? The compensatory scheme plays a role, and this article\u27s second purpose builds on the truism that economic incentives can affect the defendant representative\u27s preparation and advocacy. Inadequately compensated, advocates will refuse to represent indigent defendants or will be tempted to do less than needed. Indigent defendants in the United States, for example, may be deprived of the most able advocates because they cannot select the advocate and, even if they could, the advocate might refuse to help because the remuneration is inadequate. The compensation paid to court-appointed lawyers is pitiably low in many state courts, and, although higher, even tolerable, in federal courts, is still too low to entice skilled advocates to represent indigents when they can garner higher fees from other sources. Moreover, typically paid by the hour but with a ceiling on the total award, court-appointed lawyers have an incentive either to resolve the matter once their cumulative bill approaches the ceiling or to skimp after exceeding the ceiling because their time is then uncompensated. Matters are different in England\u27s Crown Court. Indigent defendants can select the barrister who, for two reasons, cannot decline the request. First, the cab-rank rule requires a barrister to represent one who seeks help, no matter how reprehensible that person or his legal position is, so long as the barrister has no conflict of interest and the compensation is adequate. Second, the Bar defines the compensation paid in publicly-funded criminal cases as adequate. Barristers are not chafed by this requirement because the compensation in publicly-funded cases can be quite high, and significantly higher even than in federal courts. Thus, defendants in Crown Court have the unparalleled opportunity, when compared to their counterparts prosecuted in American courts, to retain the most skilled advocates who are available. That having been said, defendants in Crown Court are often disappointed when they learn, often shortly before the trial date, that the barrister initially retained has withdrawn from the case. The barrister\u27s return of the brief (the returned brief ) threatens to undermine this important aspect of English practice. It will be important to learn how the compensatory scheme affects the barrister\u27s incentive to return or to keep the brief

Faulty Adversarial Performance by Criminal Defenders in the Crown Court

Who is the more able advocate, the lawyer in the United States or the barrister in England and Wales? Answering that question is extremely difficult because of a multitude of differences in the procedural regimes in which each works and in the scope of each\u27s responsibility. Yet, one facet stands out, like a full moon in a dark sky: The comparative number of defenders who on appeal have been accused of having provided inappropriate representation in the process leading to conviction . . . Part 1 discusses the procedural hurdles that make challenging the trial barrister\u27s conduct more difficult than objecting to the lawyer\u27s, and the reasons why making this challenge is less important. Part 2 examines the law; Part 3 grades the Court of Appeal\u27s decisions; Part 4 considers how the challenges, even when unsuccessful, reveal the loci of problems that arise in criminal defense in Crown Court

Pytrec_eval: An Extremely Fast Python Interface to trec_eval

We introduce pytrec_eval, a Python interface to the tree_eval information retrieval evaluation toolkit. pytrec_eval exposes the reference implementations of trec_eval within Python as a native extension. We show that pytrec_eval is around one order of magnitude faster than invoking trec_eval as a sub process from within Python. Compared to a native Python implementation of NDCG, pytrec_eval is twice as fast for practically-sized rankings. Finally, we demonstrate its effectiveness in an application where pytrec_eval is combined with Pyndri and the OpenAI Gym where query expansion is learned using Q-learning.Comment: SIGIR '18. The 41st International ACM SIGIR Conference on Research & Development in Information Retrieva

The Law of Exponential Growth: Evidence, Implications and Forecasts

published or submitted for publicatio