Public Defenders and Appointed Counsel in Criminal Appeals: The Iowa Experience

I. INTRODUCTION In Iowa's criminal justice system, indigent defendants are represented by two separate and distinct groups: public defenders, who are salaried government employees, and court-appointed attorneys, who contract with the state on an hourly basis. This is an article about their performance on appeal. Iowa's appellate courts decide roughly five hundred criminal appeals every year.* 1 Most appeals, criminal and otherwise, are decided by the Court of Appeals, Iowa's intermediate appellate court. (2) In each criminal appeal, defense attorneys face off against assistant attorneys general from the state Department of Justice's criminal appeals division. One might wonder whether the type of criminal defense attorney--appellate defender, court-appointed attorney, or retained counsel--makes a difference. Until now, there has been almost no data to answer that question. Only one existing study, focusing on New York appeals in the late 1980s, has meaningfully explored appellate outcomes based on type of counsel. (3) Two subsequent, more-limited studies found results inconsistent with the New York data. (4) Data about trial-level counsel are similarly a mixed bag, with some studies showing public defenders are more effective than court-appointed attorneys, some showing the opposite, and some showing that there are no significant differences. (5) The original study contained in this article aims to break past the noise and provide a clear answer--at least for Iowans--as to whether the type of counsel matters in a criminal appeal. The study reports on objective measures of counsel's effectiveness: the number of cases in which defendants obtain favorable outcomes, the number of filings with procedural and technical problems, the rate at which counsel sought further review by the Iowa Supreme Court, and the rate at which further review was granted. The data show that the appellate defenders generally perform better than court-appointed lawyers--they win more cases, have fewer procedural and technical problems, seek further review in more cases, and obtain further review more often. (6) One particularly striking difference is that, over the course of two years, court-appointed appellate lawyers never had a further-review application granted; the appellate defenders convinced the Supreme Court to take eighteen unfavorable Court of Appeals decisions on further review. Looking in another direction, the data also show that representation provided by the appellate defenders was roughly comparable to that provided by privately retained defense counsel: Minor appear between the groups, but neither the appellate defenders nor retained counsel come out clearly ahead on the objective measures--except for the appellate defenders' dramatically lower number of procedurally and technically defective filings. There is no quick fix that can upgrade court-appointed attorneys' performance. But the final section of this piece suggests a few places to start. Court-appointed attorneys need better training and better support. Existing prerequisites and continuing-legal-education requirements for court-appointed attorneys are not enough. Iowa should explore expanding the number of appellate defenders to give more defendants more consistent representation; or, if the present system of court appointments endures, the State Public Defender should consider giving the appellate defenders oversight over court-appointed attorneys' work product. This article explains why. II. CRIMINAL APPEALS IN IOWA The focus of this paper and study are relatively narrow: criminal appeals in the state courts of Iowa. But criminal appeals are not unique to Iowa--they are present in every state, (7) and at least some research suggests that the broad contours of criminal appeals have [f]ew striking differences among the states. (8) Because the institutional features of Iowa criminal appeals may have shaped the results contained in this study, an exploration of the distinctive make-up of Iowa's appellate criminal-justice system is the starting point for understanding whether the type of counsel makes a difference. …