Assigned Screening Project

CJA

NEW YORK CITY CRIMINAL JUSTICE AGENCY

Jerome E. McElroy Executive Director

ASSIGNED COUNSEL ELIGIBILITY SCREENING PROJECT

FINAL REPORT

Marian J. Gewirtz and Jerome E. McElroy

May 1997

52 Duane Street, New York, NY 10007

(646) 213-2500

ASSIGNED COUNSEL ELIGIBILITY SCREENING PROJECT

FINAL REPORT

Marian J. Gewirtz and Jerome E. McElroy

Research Assistance: Ritsa Demetriades Research Assistant Kelley Suttenfield Research Assistant William Raleigh Research Assistant Systems Programming: Dorothy Morreale Junior Programmer/Analyst

May 1997

This report can be downloaded from www.nycja.org\research\research.htm

Š 1997 NYC Criminal Justice Agency

ACKNOWLEDGMENTS

This project was conducted under the auspices of the Committee to Establish Standards for the Assignment of Counsel in Criminal Cases, created

by Justice Guy J. Mangano, Presiding Justice of the Appellate Division, Second Department, and Judge Robert G.M. Keating, Administrative Judge, New York City Criminal Court. We also wish to acknowledge the contributions of Judge Seymour Rotker, Queens County Supervising Judge, John Hayes, Borough Chief Clerk of Queens County, and Sonia Crooks, CJA Queens Borough Director. We specifically wish to thank the Queens County Criminal Court Clerks for their cooperation in interviewing the DAT arrestees and the CJA interview staff for their efforts in interviewing the remaining arrestees in Queens County prior to their arraignments. Michael Magnani, Law Clerk to the Administrative Judge, was consistently responsive to our requests for assistance.

Ritsa Demetriades, Kelley Suttenfield, and William Raleigh, served as CJA research assistants at various stages of this project. Their diligence and dedication were essential to the quality of the final report. Dorothy Morreale served as CJA Systems Programmer. The Assigned Counsel Eligibility Screening Training Manual was prepared under the direction of Peter Kiers, Director of Operations at CJA. The project benefited from the expertise of Frank Sergi, Director of Planning, also at CJA. This project could not have been undertaken without the support of the New York City Office of the Deputy Mayor for Public Safety, now the Office of the Coordinator for Criminal Justice.

TABLE OF CONTENTS PAGE

INTRODUCTION

1

I. THE RESEARCH POPULATIONS

5

A. ARRAIGNMENT VOLUME

5

TABLE I.A.1. Arraignment Volume by Type of Arrest

5

TABLE I.A.2. Arraignment Volume by the Severity of the Most Severe Arrest Charge

6

B. COMPLETION OF THE ACES FORM TABLE I.B. Completion of the ACES Form

C. ARRAIGNMENT OUTCOME

7 7

8

TABLE I.C.1. Arraignment Outcome for Summary Arrests

8

TABLE I.C.2. Arraignment Outcome for DAT Arrests

9

TABLE I.C.3. Defendants whose Cases were Continued at Arraignment by the Severity of the Most Severe Arrest Charge

D. PROFILE OF INTERVIEWED DEFENDANTS WHOSE CASES WERE CONTINUED AT ARRAIGNMENT AND COMPARISON OF ACES AND BASELINE DEFENDANTS

10

10

D.1. Overview

10

D.2. Age, Gender, and Marital Status

11

D.3. Employment

11

TABLE I.D.3. EMPLOYMENT STATUS

12

D.4. Take-Home Pay

12

TABLE I.D.4. Weekly Take-Home Pay for Defendants Employed Full Time Whose Cases Were Continued at Arraignment

14

E. INCOME ELIGIBILITY FOR PUBLICLY FUNDED COUNSEL

15

E.1. The Criteria:

15

E.2. Income Eligibility for Publicly Funded Counsel by Type of Arrest

16

TABLE I.E.2. Income Eligibility For Publicly Funded Counsel

17

E.3. Income Eligibility for Publicly Funded Counsel by Defendant Age

17

-ii-

F. ASSETS

18

F.1. Introduction and Car Ownership

18

F.2. Defendant Bank Assets

19

F.3. Assets of Spouses

20

TABLE I.F.3. Spousal Employment

21

F.4. Assets of Defendants under 21

21

II. EFFECTS OF ACES ON THE CRIMINAL JUSTICE SYSTEM

24

A. INTRODUCTION

24

B. TYPE OF ATTORNEY PRESENT AT ARRAIGNMENT AND THE ATTORNEY-ASSIGNMENT DECISION AT ARRAIGNMENT

25

TABLE II.B. Type of Attorney Present at Arraignment and Type of Attorney Assigned

26

C. COMPLIANCE WITH THE INSTRUCTION TO RETAIN PRIVATE COUNSEL

26

D. OTHER EFFECTS OF THE INSTRUCTION TO RETAIN PRIVATE COUNSEL

27

D.1. Failure to Appear at the Second Appearance

27

TABLE II.D.1.a. Failure to Appear at the Second Appearance for Defendants Who Were Instructed at Arraignment to Retain Private Counsel

28

TABLE II.D.1.b. Failure to Appear at the Second Appearance for Defendants Who Were Not Represented by Private Counsel at Arraignment and Who Were Not Instructed at Arraignment

29

TABLE II.D.1.c. Failure to Appear at the Second Appearance for Defendants Who were Represented by Private Counsel at Arraignment

29

D.2. Disposition Rates at the Second Criminal Court Appearance

30

TABLE II.D.2.a. Disposition Rates at the Second Appearance for Summary Defendants by Type of Attorney Present and Assigned at Arraignment

31

.

-iii-

TABLE II.D.2.b. Court Outcome at Second Appearance for Summary Defendants Who Were Instructed at Arraignment to Retain Private Counsel

31

TABLE II.D.2.c. Court Outcome at Second Appearance For DAT Defendants Who Were Instructed at Arraignment to Retain Private Counsel

32

D.3. Re-Instruction at the Second Appearance

33

E. PRIVATE ATTORNEY RETENTION RATES DURING THE PENDENCY OF THE CASE IN CRIMINAL COURT

34

TABLE II.E. Retention of Private Counsel by Private Attorney Status at Arraignment

35

E.1. Private Attorney Retention Rates for Defendants Instructed at Arraignment to Retain Private Counsel for the Second Appearance

35

E.2. Increased Compliance from the Second Appearance to the Final Disposition in Criminal Court

36

F. LENGTH OF CASE

38

F.1. Length of Case by Retention of Private Counsel

39

F.2. Length of Case by Retention of Private Counsel for Defendants who were Instructed at Arraignment

40

TABLE II.F.2. Mean and Median Number of Appearances to Criminal Court Disposition by Type of Attorney Assigned at Arraignment and Retention of Private Counsel

G. FINAL CRIMINAL COURT DISPOSITION III. THE RELATIONSHIP BETWEEN INCOME ELIGIBILITY AND THE ATTORNEY-ASSIGNMENT DECISION AT ARRAIGNMENT A. PRIVATE ATTORNEY STATUS AT ARRAIGNMENT BY INCOME ELIGIBILITY

41

42

44

45

TABLE III.A.1. Private Attorney Status at Arraignment By Defendant Income Eligibility For Assigned Counsel For Summary Arrests

46

TABLE III.A.2. Private Attorney Status at Arraignment By Defendant Income Eligibility For Assigned Counsel For DAT Arrests

48

-iv-

B. DEFENDANT AVERAGE WEEKLY TAKE-HOME PAY BY INCOME ELIGIBILITY

48

C. DEFENDANT AVERAGE WEEKLY TAKE-HOME PAY BY PRIVATE ATTORNEY STATUS AT ARRAIGNMENT AND INCOME ELIGIBILITY

49

TABLE III.C.1. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for Summary Arrests

50

TABLE III.C.2. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for Summary Arrests

51

TABLE III.C.3. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for DAT Arrests

52

D. COMPLIANCE WITH INSTRUCTION TO RETAIN AT THE SECOND APPEARANCE BY INCOME ELIGIBILITY

52

D.1. Defendant Average Weekly Take-Home Pay by Compliance with the Instruction to Retain Private Counsel for the Second Appearance

54

D.2. Defendant Average Weekly Take-Home Pay by Income Eligibility For Assigned Counsel and Compliance with the Instruction to Retain Private Counsel

55

IV. INCOME ELIGIBLE BUT INSTRUCTED TO RETAIN PRIVATE COUNSEL 56 A. THE DEFENDANT’S EMPLOYMENT STATUS TABLE IV.A. Defendant Employment Status For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

B. BANK ASSETS TABLE IV.B. Presence Of Defendant Bank Account For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

56

57

57

58

-v-

C. THE DEFENDANT AS A DEPENDENT

58

C.1. Defendant Age

59

TABLE IV.C.1. Age Distributions For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

59

C.2. Parental Employment

59

TABLE IV.C.2. Parental Employment Status For Income-Eligible Defendants Under Age 21 Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

60

C.3. Marital Status

61

TABLE IV.C.3. Marital Status For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

61

C.4. Spousal Employment Status

62

TABLE IV.C.4. Spousal Employment Status For Married Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

62

D. SUMMARY OF SUPPLEMENTARY RESOURCES

62

TABLE IV.D. Defendant Supplementary Resources For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel

63

E. COMPLIANCE WITH INSTRUCTION TO RETAIN PRIVATE COUNSEL FOR INCOME-ELIGIBLE DEFENDANTS WHO WERE INSTRUCTED

BY DEFENDANT SUPPLEMENTARY RESOURCES

66

TABLE IV.E.1. Compliance Rates at the Second Appearance for IncomeEligible Defendants Instructed to Retain Private Counsel at Arraignment by Defendant Supplementary Resources

67

TABLE IV.E.2. Private Counsel Retention Rates Prior to Disposition for Income-Eligible Defendants Who Were Instructed at Arraignment to Private Counsel by Defendant Supplementary Resources

67

-vi-

V. SUMMARY OF FINDINGS

69

A. ELIGIBILITY FOR ASSIGNED COUNSEL

69

B. INSTRUCTION TO RETAIN PRIVATE COUNSEL

69

C. COMPLIANCE

71

D. RE-INSTRUCTION

72

E. PRIVATE COUNSEL RETENTION RATES

72

F. LENGTH OF CASE

73

G. OTHER FACTORS ASSOCIATED WITH THE INSTRUCTION TO RETAIN PRIVATE COUNSEL

74

H. CONCLUSION

74

APPENDIX: Assigned Counsel Eligibility Screening Form

ASSIGNED COUNSEL ELIGIBILITY SCREENING PROJECT FINAL REPORT INTRODUCTION In June 1993, new screening procedures were implemented in the Queens County Criminal Court to assess defendant eligibility for publicly funded representation. The procedures were intended to test standards developed by the Committee to Establish Standards for the Assignment of Counsel in Criminal Cases (the Committee).* The Committee recommended that the court determine eligibility based on the income, assets and dependency status of the defendant. The recommended income cutoff point for persons accused of misdemeanors was the federal poverty level for a single person times 250 percent, with an additional $2,500 added for each dependent claimed by the defendant. A similar standard was recommended for those accused of felonies, except that, in these cases, the federal poverty level was multiplied by 350 percent. In addition, the Committee recommended that the defendant’s assets be taken into consideration; that the income and assets of a married defendant’s spouse, or of an unemancipated minor’s parents or legal guardian, be considered in deciding whether the defendant should be required to retain private counsel.

The interview staff of the New York City Criminal Justice Agency, Inc.** (CJA) administered the Assigned Counsel Eligibility Screening (ACES) Questionnaire, to

*

The Committee was created in Queens County by Justice Guy J. Mangano, Presiding Justice of Appellate Division, Second Department, and Judge Robert G.M. Keating, Administrative Judge, New York City Criminal Court.

**

The New York City Criminal Justice Agency, Inc. maintains a computerized database containing arrest and court-case processing information about most New York City arrestees. Data are collected during a pre-arraignment interview, which is used to ascertain community-ties information of those held for arraignment and make a recommendation for release on recognizance (ROR) at the arrestee's first court appearance. At the time of this study, court information on all interviewed defendants was gathered from the Criminal and Supreme Court calendars. Arrestees are not interviewed if they are arrested solely on bench warrants, given summonses, or charged as juveniles. CJA also does not interview most arrestees charged solely with prostitution-related offenses. Although arrestees issued Desk Appearance Tickets are not interviewed by CJA, police arrest and Criminal Court information for them is included in the CJA database. CJA also notifies released defendants of the place and time of upcoming court appearances.

-2defendants after the routine CJA Interview and prior to arraignment. Arrestees who were released pending arraignment on Desk Appearance Tickets (DATs) were interviewed by the Queens County Criminal Court Clerk staff on their arraignment date. The goal was to provide judges with uniform income and asset data to facilitate appropriate assigned counsel eligibility determinations. Thus, the interview included the name, marital status, age, employment status, take-home pay, other sources of income if not employed full time, spousal employment status and income if the arrestee resided with the spouse, employment status and income of the arrestee's parents or legal guardians if the arrestee was under age 21, the number of people whom the arrestee claimed as dependents and the value of assets owned by the arrestee, the spouse, and the parents or legal guardians, if applicable. A copy of the interview is appended to this report.

CJA's participation in the ACES Project included the responsibility to conduct research to examine the effects of eligibility screening on patterns of attorney assignment. The research component was designed to determine: a) whether the new screening information provided produced any changes in the courts' decisions assigning counsel; b) the extent to which court orders to obtain private counsel were complied with; and c) whether the screening program produced any meaningful changes in the relationship between defendant income characteristics and the distribution of attorney type.

These issues were pursued by comparing the data on a baseline sample of defendants arraigned before the ACES program began with those on an experimental sample of defendants arraigned during a two-month period following program commencement.

-3The baseline data could not, of course, include the data collected on the new ACES questionnaire. Instead, for the baseline period, defendant income-related data were taken as available from the data routinely collected during the standard CJA ROR Interview. Cases in both the baseline and ACES implementation periods were tracked until final disposition in Criminal Court, or for eight months from the date of arraignment, whichever was earlier. The court data, including the arraignment and final Criminal Court dispositions, the type of attorney present at arraignment as well as that assigned at arraignment and present at subsequent appearances, were taken from the Queens County Criminal Court calendars.

This report addresses the issues of change in the patterns of assigning counsel at arraignment and of compliance with arraigning judges' orders to retain private counsel. It focuses on several dimensions of these issues. Part I describes the research population in terms of the volume and types of arrests, the results of the attempt to screen the arrestees for assigned counsel eligibility, a profile of the demographic characteristics of those interviewed and a comparative profile of baseline-period arrestees.

The second part of the report addresses the question of the effects of ACES on the criminal-justice system. This includes discussions of the attorney-assignment decision at arraignment, focusing particularly on the defendants whose cases are continued at arraignment and require attendance at future court dates. Defendant compliance at the second appearance with the initial instruction to retain private counsel, disposition and re-instruction rates at the second appearance, private attorney retention rates over the course of case prosecution, the final case disposition in Criminal Court and the duration of the case in Criminal Court are also presented here. The patterns for defendants arraigned during the baseline research period (October 15 to December 15, 1992) and during the ACES implementation research period (June 15 to August 15, 1993) are compared. Comparisons are made for the two sample periods both for arrestees who are held at arrest pending arraignment

-4(Summary or on-line arrests) and for arrestees who are released with a DAT requiring attendance at an arraignment scheduled for a later date.

The third section of the report focuses on the defendants who were instructed to retain private counsel to determine if eligibility screening resulted in identifying a group of defendants different from those instructed during the baseline period. Defendants who were instructed during the baseline period are compared to those instructed during ACES implementation period in terms of a variety of demographic characteristics. The relationship between attorney assignment and defendant income eligibility is examined.

The fourth section compares ACES-period defendants who were income eligible for assigned counsel but who were nevertheless instructed to retain private representation with their similarly low-income counterparts who were assigned publicly-funded counsel. The goal is to identify the factors that were not reflected in the defendant income-eligibility rating that were associated with the judicial decision to instruct these defendants to secure the services of a private attorney.

The report concludes with a summary of the research findings.

-5I. THE RESEARCH POPULATIONS A. ARRAIGNMENT VOLUME During the baseline period from October 15 to December 15, 1992, 6323 arrestees were arraigned in Queens County Criminal Court. Arraignments for those arrestees held for arraignment (Summary arrestees) comprised three-quarters (76.0%) of the arraignments. Those for arrestees scheduled for arraignment at a later date and issued Desk Appearance Tickets (DATs) comprised the remaining quarter (24.0%). The volume arraigned during the ACES implementation research period (6472) from June 15 to August 15, 1993, was slightly higher than during the baseline period. However, only 1203 of these arrestees had been issued DATs and they comprised less than a fifth (18.6%) of the ACES cases. The shift in the relative distribution of DATs reflects an apparent change in issuance practices by the New York Police Department. Specifically, a few hundred defendants who were arrested for infractions appeared as on-line arrests during the ACES research period. It is likely that most of these arrestees would have been issued DATs in the baseline period.

These cases represent a very small proportion of ACES Summary arrests, albeit a higher proportion of the relatively smaller DAT arrest population. The change in the processing of defendants with arrest charges of the lowest criminal severity is unlikely to affect the analysis since the shift is unrelated to issues of income eligibility for assigned counsel and attorney-assignment decisions.

TABLE I.A.1. Arraignment Volume by Type of Arrest BASELINE TYPE OF ARREST

ACES

N

%

N

%

Summary Arrests

4808

76.0%

5269

81.4%

DAT Arrests

1515

24.0%

1203

18.6%

TOTAL Scheduled Arraignments

6323

100.0%

6472

100.0%

-6The two research periods also showed some differences in the distribution of the most severe arrest charge. The proportion of defendants whose most severe arrest charge was a felony was eight percentage points higher for defendants in Summary arrest cases (“Summary defendants�) arraigned during the baseline period (66.0%) than during the ACES period (57.6%), while the proportion of Summary defendants whose most severe arrest charge was an infraction or a violation was higher during the ACES period (10.0%, versus 2.5% during the baseline period). This difference in part reflects the defendants charged with infractions who were processed as on-line arrests during the ACES period but were likely to have been issued DATs during the baseline period. Eight percent of baseline DAT arrestees but only 1.5 percent of ACES DAT arrestees showed an infraction or a violation as their most severe arrest charge.

TABLE I.A.2. Arraignment Volume by the Severity of the Most Severe Arrest Charge

SUMMARY Arrest Charge Severity:

BASELINE N

ACES

%

N

%

Felony Charge

3139

66.0%

2997

57.6%

Misdemeanor Charge

1497

31.5%

1689

32.4%

119

2.5%

518

10.0%

4755

100.0%

5204

100.0%

Lesser Charge SUBTOTAL Charge not available

53

65

TOTAL Arraignments

4808

5269

DAT Arrest Charge Severity: Felony Charge Misdemeanor Charge Lesser Charge SUBTOTAL Charge not available TOTAL Scheduled Arraignments

BASELINE N

%

ACES N

%

9

0.6%

9

0.8%

1375

91.4%

1165

97.7%

119

7.9%

18

1.5%

1503

100.0%

1192

100.0%

12

117

1515

1203

-7B. COMPLETION OF THE ACES FORM After the ACES interviews were conducted the data were entered into the CJA computer. Analysis indicated that the interviews were completed for almost nine of every ten (88.4%) of the 6060 defendants arraigned in Queens County between June 15 and August 15, 1993: TABLE I.B. Completion of the ACES Form by Type of Arrest Summary N %

N

DAT %

TOTAL N %

4738

89.9

610

77.1

5348

88.4

Refused Language Barrier Form Blank Form Not Received “Intends to Hire�

24 17 18 112 360

0.5 0.3 0.3 2.1 6.8

--3 51 127

--0.4 6.4 16.1

24 17 17 163 487

0.4 0.3 0.3 2.7 8.0

Subtotal Arraigned

5269 --

100.0

791 412

100.0

6060 412

100.0

DAT - Failed to Appear

TOTAL Arraignments

5269

Form Completed Form Not Completed:

1203

6472

The 412 DAT defendants who failed to appear for their arraignments as scheduled were excluded here because they could not be interviewed. Most (487, 8.0%) of the arraigned defendants who were not screened for eligibility for assigned counsel were excluded because they indicated to the interviewer that they intended to hire their own attorney. The proportion who reported their intention to retain private counsel was substantially higher among arraigned DAT (16.1%) than among Summary (6.8%) defendants. Each of the other reasons for the absence of a completed interview accounted for a tiny proportion of the scheduled arraignments.

-8C. ARRAIGNMENT OUTCOME For many defendants, case outcome is determined at Criminal Court arraignment. Many defendants plead guilty or have their cases dismissed or adjourned in contemplation of dismissal at arraignment. The proportion of cases disposed at arraignment is important to this research because the attorney assignment decision is relevant only to defendants whose cases are adjourned at arraignment for further deliberation at a later date. Among Summary arrests, 14.6 percent of the baseline cases (703) and 21.1 percent of the ACES cases (1111) were disposed at arraignment. However, most of the difference in the rate of disposition was attributable to the difference in the proportion of defendants who pled guilty at arraignment (11.9% of baseline and 16.8% of ACES cases), which may reflect the the higher proportion of ACES-period Summary arrests with lesser charges.

TABLE I.C.1. Arraignment Outcome for Summary Arrests BASELINE Arraignment Outcome:

ACES

N

%

%

81.4% 14.8 3.8 100.0%

Continued

572 104 27 703 4105

11.9% 2.2 0.5 14.6% 85.4%

883 193 35 1111 4158

TOTAL Arraigned

4808

100.0%

5269

Disposed: Pled Guilty Dismissed/ACD Other Subtotal Disposed

N

% 79.5% 17.4 3.1 100.0%

% 16.8% 3.7 0.6 21.1% 78.9% 100.0%

The picture is slightly different for the DAT arrestees. Their release pending arraignment opens the possibility that they may not appear as scheduled for their arraignments. In fact, 32.6 percent of the baseline DAT (494) arrestees and 34.2 percent of the ACES-implementation DAT arrestees (412) failed to appear at arraignment. Among those who were arraigned as scheduled, ACES-period cases were far more likely to be disposed (43.1%) than were the cases of their baselineperiod counterparts (25.7%). Most of the difference in disposition rate for DAT cases

-9was attributable to the greater proportion of cases dismissed or adjourned in contemplation of dismissal (ACD) at arraignment during the ACES period (28.8%, versus 16.3% during the baseline period), although, as among the Summary arrestees, the proportion of defendants who pled guilty at arraignment was higher during the ACES (14.2%) than during the baseline (9.2%) period.

TABLE I.C.2. Arraignment Outcome for DAT Arrests BASELINE Arraignment Outcome:

ACES

N

%

%

N

%

%

35.9% 63.4% 0.8% 100.0%

9.2% 16.3% 0.2% 25.7% 74.3% 100.0%

112 228 1 341 450 791

32.8% 66.9% 0.3% 100.0%

SUBTOTAL Arraigned

94 166 2 262 759 1021

14.2% 28.8% 0.1% 43.1% 56.9% 100.0%

DAT- Failed to Appear

494

412

1515

1203

Disposed: Pled Guilty Dismissed/ACD Other Subtotal Disposed

Continued

TOTAL Scheduled Arraignments

Thus, after arraignment, 4105 baseline and 4158 ACES-implementation-period Summary cases and 759 baseline and 450 ACES DAT cases were continued for adjudication at a subsequent date. The volume of continued cases was thereby quite similar for the two research periods, particularly for Summary arrests. The differences in the charge distribution were also much smaller for the Summary defendants whose cases were continued at arraignment. The eight percentage point difference in the proportion of Summary cases with felony-level arrest charges dropped to only three percentage points among the continued cases. The difference in the proportion of Summary defendants charged with lesser offenses also declined. As shown below, however, DAT defendants whose cases were continued at arraignment during the ACES period were far more likely to face misdemeanor-level arrest charges (96.8%) than were their counterparts during the baseline period (88.7%). This reflects the

-10change in DAT issuance policy mentioned earlier: Only 1.6 percent of ACES DAT defendants but 10.5 percent of the baseline DAT defendants whose cases were continued at arraignment were arrested for lesser charges.

TABLE I.C.3. Defendants whose Cases were Continued at Arraignment by the Severity of the Most Severe Arrest Charge BASELINE SUMMARY Felony Charge Misdemeanor Charge Lesser Charge SUBTOTAL Charge not available TOTAL Scheduled Arraignments

%

N

%

72.9% 25.3% 1.8% 100.0%

2880 1006 244 4130 28 4158

69.7% 24.4% 5.9% 100.0%

N 2975 1032 72 4079 26 4105

BASELINE DAT

N

Felony Charge Misdemeanor Charge Lesser Charge SUBTOTAL Charge not available TOTAL Scheduled Arraignments

6 670 79 755 4 759

ACES

ACES %

0.8% 88.7% 10.5% 100.0%

N 7 429 7 443 7 450

% 1.6% 96.8% 1.6% 100.0%

D. PROFILE OF INTERVIEWED DEFENDANTS WHOSE CASES WERE CONTINUED AT ARRAIGNMENT AND COMPARISON OF ACES AND BASELINE DEFENDANTS D.1. Overview This section first describes the research populations in terms of defendant gender, age, marital status, employment, take-home pay and number of dependents the defendant supports. ACES defendants are compared to baseline defendants and Summary defendants are compared to DAT defendants whenever the data are available. The ACES implementation population is also described in terms of the availability of alternative sources of funds, including their own bank assets as well as

-11spousal and/or parental resources, data which are not available for the baseline period. Analysis is restricted to interviewed defendants whose cases are continued at arraignment since these are the only defendants for whom the attorney assignment decision is relevant.

D.2. Age, Gender and Marital Status Most of the ACES defendants were single males aged 21 or older. Females comprised eleven percent of ACES Summary defendants and 23 percent of ACES DAT defendants. About a quarter of the defendants were under age 21 and roughly one in every five was married.

The baseline defendants were also overwhelmingly males over the age of 21.

Only thirteen percent of baseline Summary defendants and 21 percent of baseline DAT defendants were female. The age distribution of baseline Summary defendants was almost identical to the distribution among ACES Summary defendants, but the baseline DAT defendants were slightly more likely to be over 21 (78% of baseline DAT defendants, compared to 73% of ACES DAT defendants). Marital status was not available for the baseline comparison period.

D.3. Employment One-third (36.3%) of the ACES defendants whose cases were continued at arraignment and who reported their employment status indicated that they were employed full time. The proportion who reported full-time employment was slightly higher among the Summary defendants (36.5%) than among the DAT arrests (33.2%).

Part-time employment, however, was more common among the DAT (14.0%) than among the Summary (9.6%) defendants.

-12Comparison of Summary defendants arraigned during the baseline and ACES implementation periods showed that a smaller proportion of baseline Summary defendants reported full-time employment (29.7%) while a slightly higher proportion reported part-time employment (10.7%).

More than half of the ACES defendants (53.9%) indicated that they were unemployed. The proportions of ACES Summary and DAT defendants who were unemployed were similar (53.9% versus 52.8%, respectively). The proportion unemployed among the baseline Summary defendants was higher (59.6%).

TABLE I.D.3. Employment Status BASELINE

ACES

Summary Employment Status: Employed: Full Time Part Time Subtotal Employed Subtotal Not Employed SUBTOTAL Employment Not Available Interview Not Available DAT Intends to Hire

TOTAL CONTINUED AT ARRAIGNMENT

N 1190 431 1621 2390 4011 -94 -4105

%

Summary N

29.7 73.4 1377 10.7 26.6 363 40.4 100.0 1740 59.6 2031 100.0 3771 261 126 -4158

% 36.5 79.1 9.6 20.9 46.1 100.0 53.9 100.0

DAT N 97 41 138 154 292 41 31 86 450

% 33.2 70.3 14.0 29.7 47.2 100.0 52.8 100.0

D.4. Take-Home Pay The average weekly take-home pay reported by interviewed defendants varied widely from under $100 to several thousand for a handful of defendants. Just as the ACES Summary defendants were more likely than ACES DAT defendants to indicate that they were employed full time, ACES Summary defendants reported higher weekly take-home pay than was reported by their DAT counterparts, even when only those defendants employed full time are considered. More than a third (35.8%) of the

-13ACES Summary defendants who were employed full time reported earning less than $250 weekly, compared to four of every ten (40.2%) of the full-time employed ACES DAT defendants. The difference was a little wider at the $350 weekly income cutoff: 64 percent of ACES Summary defendants but 74 percent of ACES DAT defendants reported a weekly take-home pay under $350 (Table II.D.4.).

The difference can also be observed at the other end of the income spectrum, although the differences are small. During the ACES period, fifteen percent of Summary defendants but only eleven percent of DAT defendants reported earning $500 or more weekly from full-time employment and five percent of Summary defendants but only one (of 92) DAT defendant reported earning $750 or more.

Take-home pay figures for Summary defendants who were arraigned during the baseline research period are similar to those reported by Summary defendants arraigned during the ACES implementation period. Thirty-eight percent reported earning less than $250 weekly from full-time employment, compared to 36 percent for ACES Summary defendants and more than six of every ten defendants in both samples reportedly earned less than $350 from full-time work. Baseline Summary defendants were overrepresented at the high end of the income distribution. One in five baseline Summary defendants earned $500 or more weekly and 7.5 percent earned more than $750 weekly. These proportions are similar to the fifteen percent and 4.7 percent, respectively, presented above for the ACES Summary defendants.

The data on mean and median take-home pay are consistent with the income findings already reported. During the ACES implementation period, DAT defendants showed lower mean ($291.70) and median ($290.00) weekly income than did Summary defendants ($333.31 and $288.00, respectively). The surprisingly low economic status of the DAT defendants for whom income information is available may be, at least in part, a reflection of the large number of DAT arrestees who did not

-14complete the ACES interview either because they failed to appear for arraignment or because they indicated their intention to hire a private attorney.

TABLE I.D.4. Weekly Take-Home Pay for Defendants Employed Full Time Whose Cases Were Continued at Arraignment BASELINE

AC ES

SUMMARY* Take-Home Pay

N

%

SUMMARY* Cum. %

N

%

DAT Cum. %

N

%

Cum. %

Under $250

427

38.1

38.1

482

35.8

35.8

37

40.2

40.2

$250-349

275

24.5

62.6

384

28.5

64.3

31

33.7

73.9

$350-499

191

17.0

79.6

281

20.9

85.2

14

15.2

89.1

$500-749

145

12.9

92.5

137

10.2

95.3

9

9.8

98.9

$750-999

48

4.3

96.8

32

2.4

97.6

1

1.1

100.0

$1000 or more

36

3.2

100.0

31

2.3

100.0

0

0.0

100.0

1122

100.0

1347

100.0

92

100.0

Subtotal MEAN

$358.13 **

$333.31

$291.70

MEDIAN

$280.00

$288.00

$290.00

68 1190

30 1377

5 97

Not Available TOTAL Employed Full Time

* The ACES Interview was not conducted for arrestees who indicated that they intended to hire a private attorney.

Employment and income data were instead taken from the standard CJA ROR Interview (available only for Summary arrests) ** Excludes one very high income.

Baseline and ACES Summary defendants showed similar mean and median take-home pay figures. The mean for full-time employed Baseline Summary defendants was a little higher ($358.13) and the median was a little lower ($280.00), reflecting the slightly higher concentration of higher incomes among defendants arraigned during the baseline period, even after one very high income was excluded from the calculations.

-15E. INCOME ELIGIBILITY FOR PUBLICLY FUNDED COUNSEL E.1. The Criteria: While the Committee’s standard recommended that the court consider both income and assets in determining a defendant’s eligibility for assigned counsel, the Committee recommended specific income levels to distinguish the eligible from the ineligible. The income criteria* are more stringent for defendants who face misdemeanor than felony charges in order to address the likelihood that attorney fees would be higher for the more severe charges. The criteria also consider the number of dependents the defendant supports. To tap this information, the defendants were asked to indicate their sources of income, their average weekly take-home pay if they were employed, the number of dependents they support, as well as the names and ages of the dependents. The interviewers consulted the "ACES Income Eligibility Chart" to determine misdemeanor and felony-level eligibility and marked "yes" if the defendant met the income-eligibility criteria for publicly funded counsel, "no" if the defendant did not, or "INS" for "insufficient information" if the income or dependent data were not provided by the defendant. It is important here to note that the interviewer's assessment of income eligibility for publicly funded counsel is based solely on the defendant's own income even though the Committee standard calls for consideration of the income of the spouse and the parents or legal guardians under specific circumstances. The economic status of the spouse and parents or legal guardians are reported on the ACES interview but are not reflected in the defendant income-eligibility assessment. This is because it is the judge, not the CJA interviewer,

*

The Committee standard defines as presumptively unable to retain counsel any defendant charged with a misdemeanor whose annual gross income is less than 250 percent of the federal poverty level guideline ($16,580 or $318.85 weekly in 1992, to be revised annually) plus $2500 for each additional dependent, or a defendant charged with a felony whose annual gross income is less than 350 percent of the poverty level guideline ($23,170 or $445.58 weekly), plus $2500 for each additional dependent.

The chart used by the interviewers is based on net pay. According to the "ACES Income-Eligibility Chart," a defendant with no dependents could earn a take-home pay up to a maximum of $249 weekly for misdemeanor charges and up to $336 weekly for felony charges and remain eligible for assigned counsel at public expense.

-16who must determine whether these other sources are relevant in the particular case, and if they are, how they should be weighed in the context of the defendant’s full economic picture.

E.2. Income Eligibility for Publicly Funded Counsel by Type of Arrest More than eight of every ten Summary defendants (83%) for whom the ACES form was completed were income eligible for publicly funded counsel at the misdemeanor level and nine of every ten (91%) were income eligible at the felony level. The eligibility rate was similar among DAT defendants where 88 percent reported incomes that qualified for publicly funded counsel at the misdemeanor level.

The eligibility ratings were also very similar for baseline Summary defendants. In all, few defendants were ineligible for assigned counsel. Only 7.4 percent of baseline Summary defendants, 8.7 percent of ACES Summary defendants, and 6.1 percent of ACES DAT defendants earned more than the income / number-of-dependents cutoff for eligibility at both the felony and misdemeanor levels. In addition, some defendants reported weekly take-home-pay figures that qualified them for assigned counsel only if they were charged with felony-level offenses leaving arraignment (7%, 8% and 6%, respectively, of baseline Summary, ACES Summary and ACES DAT defendants).

This included three percent of both Summary arrest samples who in fact faced lesser amended arraignment charges and were therefore ineligible for assigned counsel.

-17TABLE I.E.2. Income Eligibility For Publicly Funded Counsel

INCOME ELIGIBILITY: Eligible at Misdemeanor and Felony Level Eligible at Felony Level Only: Eligible: Felony Charged Not Eligible: Not Felony Charged Not Eligible at Felony or Misdemeanor Level SUBTOTAL Insufficient Information Form Blank DAT - Intends to Hire

TOTAL CONTINUED AT ARRAIGNMENT

BASELINE Summary

ACES Summary

N

%

N

%

N

%

3369

86.0%

3313

83.1%

287

88.0%

152 108 290

3.9 2.8 7.4

193 134 349

4.8 3.4 8.7%

19 20

5.8 6.1

3919

100.0%

3989

100.0%

326

DAT

100 86 --

43 126 --

7 31 86

4105

4158

450

100.0%

E.3. Income Eligibility for Publicly Funded Counsel by Defendant Age As mentioned earlier, about a quarter of the defendants whose cases were continued at arraignment were under 21 years of age. The age of the defendants was important to the ACES process since the income-eligibility question itself reflected only the defendant's own income while the eligibility standard considered the income of the defendant's parents or legal guardians for unemancipated youth under age 21, regardless of whether or not the youth resided with parents or legal guardians.

It was expected that the younger defendants might be more likely to qualify for assigned counsel based on their own presumably more limited income than were the older defendants. The data generally supported this hypothesis. For Summary defendants for whom the income-eligibility screening was completed, the older defendants were far more likely to be considered ineligible for assigned counsel than were the younger defendants. Barely three percent of the ACES Summary defendants under age 21 were not income eligible for assigned counsel at the misdemeanor level, compared to almost eleven percent of the older defendants. The difference is wider if those eligible only at the felony level, but who were not felony

-18charged, are tallied with those ineligible regardless of charge. Among younger Summary defendants, 3.5 percent were not eligible for publicly funded counsel. For older Summary defendants, the comparable figure was 14.8 percent.

The findings among ACES DAT defendants for whom the income-eligibility assessment was made were comparable. Only four percent of the under-21-year olds, but 16 percent of the older defendants were ineligible for assigned counsel because their incomes were over the cutoff.

Baseline Summary defendants under the age of 21 were also very unlikely to report sufficient income to be ineligible for assigned counsel. Only ten of the younger baseline Summary defendants (1%) were ineligible at the misdemeanor level and only six more (1.6% together) were only eligible at the felony level but were not so charged, compared to 8.9 percent and 12.2 percent of their older counterparts.

F. ASSETS F.1. Introduction and Car Ownership The ACES Interview was not designed solely to display defendant employment, income and dependent information and thereby enable calculation of the incomeeligibility rating. Rather, the form was intended to tap many facets of the defendant’s financial standing, including his or her assets and those of his or her spouse or parents, if applicable, according to the Standard. These data were presented on the ACES Interview Form so that the presiding judge could be aware of the defendant’s financial status and could inquire further of the defendant if necessary to facilitate informed attorney assignment decisions.

-19In general, assets were relatively rare among defendants whose cases were continued at arraignment in Queens County Criminal Court. For example, 478 Summary defendants and 55 DAT defendants who were interviewed and whose cases were continued at arraignment reported that they owned a car. But, as discussed above, the ACES form also informed the judges of the defendants’ income eligibility for assigned counsel and some of these defendants were not eligible for assigned counsel based on their own income. The question addressed here is to what extent the asset data contributed additional information not reflected by the eligibility rating that might have aided the judicial attorney-assignment decision. To do this, this section restricts the analysis first to the 3506 Summary defendants and 287 DAT defendants whose ACES income rating indicated that they were eligible for assigned counsel. However, asset data were not available for 197 of the Summary defendants because they told the interviewers that they intended to hire their own attorney and therefore were not interviewed. From this perspective, the car ownership data indicated that nearly ten percent of the 3309 Summary defendants and 14 percent of the 287 DAT defendants who were eligible for assigned counsel based on their own income owned a car.

The year and model of the cars were also reported on the interview forms for the use of the court. Cursory analysis of the data on the age of the cars indicated that only one of every ten Summary defendants and only two of every ten DAT defendants who reported that they owned a car had a late model vehicle (1990 through 1993) .

F.2. Defendant Bank Assets Defendant bank assets were examined in a similar way, and also seem to be rare resources in this population. A total of 403 Summary and DAT defendants arraigned during the ACES implementation period reported that they had a bank account. This was 11.3 percent of the 3574 responding defendants whose cases

-20were continued at arraignment and who were rated income eligible for assigned counsel.

The defendants were also asked to report the balance of their accounts. Many defendants said that they did not know their balance, and the amount field was left blank for many other defendants. Eight defendants refused to report the balance of their accounts to the interviewer. More than half of these defendants claimed to have less than $500 in their accounts but a quarter had more than $1000. These 71 defendants constituted a very small proportion of all defendants whose low income seemed to qualify for assigned counsel.

F.3. Assets of Spouses The ACES interview also collected data on the financial standing of defendants’ spouses. 368 Summary defendants and 55 DAT defendants whose own income qualified them for assigned counsel reported that they were married and living with their spouse. Employment data were recorded for 323 spouses of Summary defendants and 54 spouses of DAT defendants. More than four of every ten defendant spouses were employed with more than a third of all spouses reported to be employed full time. The spouses of DAT defendants were more likely to report fulltime employment (46.3%) than were the spouses of Summary defendants (33.7%).

Again, these employed spouses accounted for only a tiny proportion of the defendants who qualified for assigned counsel based on their own incomes.

-21TABLE I.F.3. Spousal Employment SUMMARY Spousal Employment: Employed: Full Time Part Time

N

%

DAT N

TOTAL %

N

%

Not Employed

109 29 138 185

33.7% 9.0 42.7 57.3

25 46.3% 2 3.7 50.0 27 27 50.0

134 31 165 212

SUBTOTAL

323

100.0%

54 100.0%

377 100.0%

SUBTOTAL Employed

Don’t Know Spousal Employment Spousal Employment Missing Not Living With Spouse TOTAL Rated Eligible for Assigned Counsel

1 44 3138

1 32

2 44 3370

3506

287

3793

35.5% 8.2 43.8 56.2

F.4. Assets of Defendants under 21 Defendants under the age of 21 warrant special attention here because they were treated separately by the Standards. For these young defendants, the Standards recommended that parental income and assets be considered in the assignedcounsel-eligibility decision, regardless of whether the defendants in fact resided with their parents. Few of the 1113 young defendants whose cases were continued at arraignment during the ACES implementation period failed to qualify for assigned counsel based on their own incomes. Only 38 of the 1075 for whom sufficient data were available to assess income eligibility (15 DAT defendants indicated that they intended to hire their attorney and were therefore not interviewed, 17 forms were blank or missing, and six were missing income or dependents data) or less than four percent, earned more than the income cutoff to qualify for assigned counsel. Thus, there were 1037 (937 Summary and 100 DAT) defendants under 21 who qualified for assigned counsel based on their own income. Of the 1002 defendants under 21 for whom residence data were available, two-thirds reported that they lived with at least one parent. An additional 75 lived with their grandparent or legal guardian and ten lived with their spouse.

-22Many of the young defendants interviewed who qualified for assigned counsel did not know or did not report the employment status of their parents. Sixty percent of the 837 who responded to the question reported that at least one parent was employed full time. The proportion who reported full-time parental employment was lower among those who resided with at least one parent (45%) than among those who lived apart from their parents (65%). So few young defendants were able to report their parents’ income (58 with at least one parent working full time and seven with parttime employment) that the income distributions would not be reliable indicators of availability of potential support from parents.

Defendants who were under age 21 were also asked about other parental assets. Few young defendants were able to report any additional information about their parent’s financial standing. Only 11 young defendants (including two who did not qualify for assigned counsel) were able to report the balance of their parent’s bank account.

Overall, the young Summary defendants whose cases were continued at arraignment during the ACES period were more likely to be employed and earned a little more than their baseline counterparts, but the differences are small. There were 98 baseline Summary defendants under the age of 21 who worked full time, with a mean take-home pay of $221.93 and a median of $200.00. A total of 200 baseline Summary defendants worked full or part time (mean $171.74, median $150.00). In comparison, there were 143 ACES-implementation-period Summary defendants under 21 who worked full time, with a mean take-home pay of $258.43 and a median of $210.00. A total of 246 young ACES-period defendants worked full or part time combined, with a mean of $211.61 and a median of $180.00.

It may be important to point out that the years from the earliest age of criminal responsibility (13 for defendants charged with homicide, 14 for other serious felonies, and 16 for all criminal charges) through age 20 represented widely different levels of

-23parental dependency for different juveniles. While most of the 16-year-olds interviewed during the ACES implementation period indicated that they lived with their parents, little more than half of the interviewed 20-year-olds were similarly dependent on their parents. The Standard may need to reflect this diversity among young defendants.

-24II. EFFECTS OF ACES ON THE CRIMINAL-JUSTICE SYSTEM A. INTRODUCTION This section addresses the central questions of this research: Did assigned counsel eligibility screening affect the courts’ attorney assignment decision at arraignment, or subsequently, and, if so, did screening result in greater compliance with the judge’s instruction to retain private counsel? In other words, did implementation of the screening program change the proportion of defendants who were instructed to retain private counsel? Did the program change the composition of the pool of defendants who were instructed in a way that resulted in a change in the proportion who actually hired private counsel?

To answer these questions, the baseline and ACES-implementation-period samples were compared first with respect to the distribution of types of attorneys* assigned at arraignment and, secondly, for defendants who were instructed to seek private representation, with respect to the type of attorney present at the second appearance. The research periods were also compared in terms of other court-

*

The type of attorney present and the type of attorney assigned to a defendant at a court appearance are not routinely recorded on the Criminal Court calendars, although these items are noted in the defendant case file. To conduct the research to evaluate the ACES program, a two-part coding scheme was devised to record the type of attorney on the court calendars. The first part of the code reflects the type of attorney present and the second part reflects the type of attorney assigned for each defendant.

The court clerks were instructed to use "L" to indicate an attorney from The Legal Aid Society, "B" to indicate an attorney from the 18B panel, "P" to indicate a private attorney, and "O" to indicate that no attorney was present. For example, the court clerk would record "L/P" on the calendar appearance line for a defendant who was represented by a Legal Aid attorney but who was instructed to retain a private attorney for subsequent appearances. If the defendant retained private counsel for the subsequent appearance and the case was then disposed requiring no future appearances, the court clerk recorded "P/O." Attorney codes were occasionally absent from the calendars. In most instances this coincided with the absence of the defendant and was thus associated with the issuance of a bench warrant. However, when the attorney code was missing for a defendant who was present at Criminal Court arraignment, the Office of the Administrative Judge of the New York City Criminal Courts secured the further cooperation of the court clerks to consult the docket-file jackets and report the correct attorney codes, thereby supplementing the data available from the calendars.

-25related outcomes, including disposition and length of case, to assess the extent to which ACES implementation might have affected case processing or have other unintended consequences for the criminal-justice system as a whole.

Preliminary data analysis suggested that the distinction between publicly funded counsel from The Legal Aid Society and from the 18B panel was not directly relevant to the ACES policy research issues. Rather, the emphasis for decision-makers was primarily on private versus public funding of defense-counsel services. Early findings also pointed to the need to focus the analysis on defendants who did not bring private counsel to the arraignment. The data presented below specifically address the defendants who did not already retain private counsel for their first appearance and whose cases were continued at arraignment. These defendants served as the first step in identifying a target group for the effort to rationalize the attorney-assignment process.

B. TYPE OF ATTORNEY PRESENT AT ARRAIGNMENT AND THE ATTORNEY-ASSIGNMENT DECISION AT ARRAIGNMENT The types of attorneys present at arraignment were similar for Summary defendants in the baseline and ACES periods: 7.0 percent of baseline defendants and 6.6 percent of ACES defendants whose cases were continued at arraignment were represented by private counsel for their arraignment. The proportions of arraigned Summary defendants whose cases were continued who were instructed to retain private counsel (16.1%) were virtually identical for the two research periods.

The picture is quite different for DAT defendants whose cases were continued at arraignment. Although the proportions of DAT defendants represented by private counsel at arraignment were similar for the two research periods (13.4% during the baseline period and 16.1% during ACES), the proportion of DAT defendants instructed to retain private counsel was higher during the ACES implementation period (30.8%) than

-26during the baseline period (20.6%). This was a large increase in private counsel assignment.

TABLE II.B. Type of Attorney Present at Arraignment and Type of Attorney Assigned BASELINE SUMMARY DAT TYPE OF ATTORNEY: Private Attorney Present Private Attorney Not Present: Instructed to Retain Private Counsel Not Instructed to Retain Private Counsel

Subtotal Continued Not Available TOTAL Continued At Arraignment

ACES SUMMARY

DAT

N 288

% 7.0

N 100

% 13.4

N 276

% 6.6

N 69

% 16.1

662 3153 4103 2 4105

16.1 76.8 100.0

154 493 747 12 759

20.6 66.0 100.0

667 3209 4152 6 4158

16.1 77.3 100.0

32 227 428 22 450

30.8 53.0 100.0

C. COMPLIANCE WITH THE INSTRUCTION TO RETAIN PRIVATE COUNSEL Nearly half of the defendants who were instructed to retain private counsel by the arraigning judge complied and returned to court for their second appearance with private representation. The baseline and ACES Summary defendants showed little difference in the proportions without private representation at arraignment who were instructed to retain private counsel and who, in fact, returned with a private attorney (50.0% during the baseline period and 46.5% during the ACES period).

Unlike the Summary defendants, DAT defendants who were instructed to retain private counsel by the arraigning judge were more likely to be represented by private counsel at the second appearance during the ACES (39.8%) than during the baseline (31.8%) period. Conversely, 53.5 percent of the Summary defendants and 60.2 percent of the DAT defendants who were instructed to retain private counsel at the next appearance failed to do so.

-27D. OTHER EFFECTS OF THE INSTRUCTION TO RETAIN PRIVATE COUNSEL The analysis presented thus far has not addressed other possible responses to the instruction to retain at arraignment on the part of the court or the defendant. The defendant may choose to comply with the court's instruction and secure private representation, or not. The defendant may choose whether or not to return to court for the second appearance at all, with or without private counsel. It has been suggested that defendants who do not comply with the arraigning judge's instruction to retain private counsel might show particularly high rates of failure to appear at scheduled court dates.

Similarly, the court may respond differently to defendants who comply with the arraigning judge's instruction to secure private representation than to defendants who do not comply. Defendants who return with private representation may be rewarded with quick, favorable dispositions. Or, the change in representation may result in delaying the resolution of the charges against the defendant. It may be that defendants who do not comply with the initial judicial order to hire a private attorney face delay, finding their cases adjourned yet again at the next scheduled appearance and raising the possibility that they might choose not to re-appear as scheduled for the third appearance and so forth.

This section discusses failure-to-appear and disposition rates at the second appearance. The following section addresses questions about the relationship between instructions to retain and length of case, as well as the nature of the ultimate Criminal Court disposition.

D.1. Failure to Appear at the Second Appearance The overall failure-to-appear rates at the second appearance were rather low for both Summary and DAT defendants whose cases were continued at arraignment.

-28Warrants were ordered for non-appearance for only 4.2 percent and 5.4 percent of all second appearances scheduled for baseline Summary and DAT defendants and for only 3.5 percent and 5.6 percent of those scheduled for ACES Summary and DAT defendants, respectively. Warrants were stayed for an additional 2.1 percent of Summary defendants in both periods and for 3.3 percent of baseline and 2.2 percent of ACES DAT defendants.

The data suggest that failure to appear was an infrequent response to the instruction to retain counsel. As shown in the table below, warrants were ordered at the second scheduled appearance for seventeen (2.6%) baseline Summary defendants and 24 (3.6%) ACES Summary defendants who had been instructed to retain counsel and for only ten (6.5%) baseline DAT defendants and ten (7.6%) ACES DAT defendants. Warrants were stayed for an additional eight baseline and four ACES Summary defendants and for two baseline and no ACES DAT defendants.

TABLE II.D.1.a. Failure to Appear at the Second Appearance for Defendants Who Were Instructed at Arraignment to Retain Private Counsel BASELINE Failure to Appear: Warrant Ordered Warrant Stayed

Total Failures to Appear Appeared as Scheduled TOTAL INSTRUCTED AT ARRAIGNMENT

SUMMARY N % 17 2.6 8 1.2 25 3.8 637 662

96.2 100.0

ACES

DAT 10 2 12

% 6.5 1.3 7.8

SUMMARY N % 24 3.6 4 0.6 28 4.2

142 154

92.2 100.0

639 95.8 667 100.0

N

DAT N 10 0 10

% 7.6 0.0 7.6

122 132

92.4 100.0

Of course, defendants who were not instructed to retain counsel also failed to appear. Warrants were ordered at the second appearance for 4.6 percent of baseline Summary defendants, 3.6 percent of ACES Summary defendants and 5.7 percent and 4.8 percent, respectively, of baseline and ACES DAT defendants who were not represented by private counsel at arraignment and were not instructed to retain private representation for subsequent appearances (Table II.D.1.b.).

-29TABLE II.D.1.b. Failure to Appear at the Second Appearance for Defendants Who Were Not Represented by Private Counsel at Arraignment and Who Were Not Instructed at Arraignment BASELINE Failure to Appear: Warrant Ordered Warrant Stayed

Total Failures to Appear

SUMMARY N % 146 4.6 70 2.2 216 6.8

Appeared as Scheduled

2937 3153

TOTAL Not Instructed at Arraignment to Retain Private Counsel

93.1 100.0

ACES DAT

28 21 49

% 5.7 4.2 9.9

SUMMARY N % 117 3.6 81 2.5 198 6.2

DAT N % 11 4.8 10 4.4 21 9.2

444 493

92.1 100.0

3012 3210

206 227

N

93.8 100.0

90.7 100.0

Warrant rates were lower among the small group of defendants who were represented by private counsel at arraignment. Warrants were ordered at the second appearance for only 2.8 percent and 1.1 percent of baseline and ACES Summary defendants, respectively, and 1.0 percent and 1.5 percent of baseline and ACES DAT defendants, respectively, who were represented by private attorneys at arraignment.

TABLE II.D.1.c. Failure to Appear at the Second Appearance for Defendants Who Were Represented by Private Counsel at Arraignment BASELINE Failure to Appear: Warrant Ordered Warrant Stayed

Total Failures to Appear

SUMMARY N % 8 2.8 7 2.4 15 5.2

Appeared as Scheduled SUBTOTAL Outcome Not Available TOTAL Private Counsel Present at Arraignment

273 288 0 288

94.8 100.0

ACES DAT

N 1 2 3 97 100 0 100

% 1.0 2.0 3.0 97.0 100.0

SUMMARY N % 3 1.1 3 1.1 6 2.2 270 276 0 276

97.8 100.0

DAT N 1 0 1 67 68 1 69

% 1.5 0.0 1.5 98.5 100.0

These data support the conclusion that the Assigned Counsel Eligibility Screening Project had no negative effect on failure to appear rates at the second appearance in Criminal Court.

-30D.2. Disposition Rates at the Second Criminal Court Appearance A case was considered here to be disposed at the second appearance in Criminal Court if the charges were dismissed or adjourned in contemplation of dismissal, if the defendant pled guilty, or if the case was transferred to the Supreme Court. The disposition rate at the second appearance for Summary defendants increased from 32.2 percent during the baseline period to 36.0 percent during the ACES period (Table II.D.2.a.). The increase is evident among Summary defendants who were represented by private counsel at arraignment (25.6% to 30.7%) and among Summary defendants who were represented by assigned counsel at both arraignment and the second appearance (32.9% to 37.9%). The disposition rate at the second appearance actually decreased slightly for cases in which Summary defendants were not represented by a private attorney at arraignment and were instructed to retain private representation for their second appearance (32.0% to 29.4%).

However, these figures masked the larger difference between Summary defendants who were instructed to retain and complied with the courts' instructions and those who did not comply. As shown in Table II.D.2.b., Summary defendants who complied and returned to the second appearance with a private attorney were more likely to have their cases disposed at the second appearance during the ACES (35.1%) than during the baseline (26.1%) period. Conversely, the disposition rate was higher for baseline than for ACES Summary cases who failed to comply (37.9% versus 25.3%). Although the disposition rates for the other categories of attorney presence and assignment at arraignment and at the second appearance differed for the baseline and ACES periods, the changes were smaller than for the Summary defendants assigned private counsel. These data do suggest that defendants who fail to comply with the court’s instruction may pay a price with respect to the speed with which their cases reach disposition.

-31TABLE II.D.2.a. Disposition Rates at the Second Appearance for Summary Defendants by Type of Attorney Present and Assigned at Arraignment Private Attorney Not Present:

BASELINE Outcome at 2nd appearance Disposed Continued SUBTOTAL Warrant Ordered/Stayed TOTAL Continued

Private Attorney Present N

Instructed To Retain

% 25.6 74.4 100.0

70 203 273 15 288

N 204 433 637 25 662

Not Instructed Not To Retain Available

% 32.0 68.0 100.0

N 967 1970 2937 216 3153

% 32.9 67.1 100.0

N 0 2 2 0 2

TOTAL N 1241 2608 3849 256 4105

Private Attorney Not Present:

ACES Private Attorney Present Outcome at N % 2nd appearance Disposed 83 30.7 Continued 187 69.3 SUBTOTAL 270 100.0 Warrant Ordered/Stayed 6 TOTAL Continued 276

Instructed To Not Instructed Not To Retain Available Retain N % N % N 188 37.9 1 29.4 1143 451 70.6 1869 62.1 4 5 639 100.0 3012 100.0 28 198 0 5 667 3210

TOTAL N 1415 2511 3926 232 4158

TABLE II.D.2.b. Court Outcome at Second Appearance for Summary Defendants Who Were Instructed at Arraignment to Retain Private Counsel BASELINE COMPLIED Outcome at 2nd appearance Disposed Continued SUBTOTAL Warrant Ordered/Stayed TOTAL Instructed

N

%

83 26.1 235 73.9 318 100.0 3 321

DID NOT COMPLY

N 120 197 317 22 339

% 37.9 62.1 100.0

Not Available

N 1 1 2 0 2

TOTAL INSTRUCTED

N 204 433 637 25 662

% 32.0 68.0 100.0

ACES COMPLIED Outcome at 2nd appearance Disposed Continued SUBTOTAL Warrant Ordered/Stayed TOTAL Instructed

% 32.2 67.8 100.0

N

%

101 35.1 187 64.9 288 100.0 3 291

DID NOT COMPLY

N 86 254 340 21 361

% 25.3 74.7 100.0

Not TOTAL Available INSTRUCTED

N 1 10 11 4 15

N 188 451 639 28 667

% 29.4 70.6 100.0

% 36.0 64.0 100.0

-32The pattern of disposition rates at the second appearance for DAT defendants was far different than the pattern discussed above for Summary defendants. The disposition rate increased for every attorney-assignment category for DAT defendants.

The overall increase was nearly ten percentage points, from 32.4 percent during the baseline period to 41.8 percent during the ACES period. The increase was comparable for DAT defendants who had private representation at arraignment (from 37.1% to 46.3%), for those instructed to retain who complied (from 40.0% to 50.0%), and for those who were not instructed to retain at arraignment (from 34.6% to 45.3%).

However, the increase was smaller (only five percentage points, from 28.9 percent to 34.3%) for DAT defendants who were instructed at arraignment to retain private counsel but who did not comply. Further, although the DAT defendants who did not retain private counsel for the second appearance as instructed at arraignment showed the lowest second-appearance disposition rate during both periods, the difference was only 11 percentage points during the baseline period but 16 percentage points during the ACES period.

TABLE II.D.2.c. Court Outcome at Second Appearance For DAT Defendants Who Were Instructed at Arraignment to Retain Private Counsel BASELINE COMPLIED Court Outcome at 2nd appearance Disposed Continued SUBTOTAL Warrant Ordered/Stayed TOTAL Instructed

N % 18 40.0 27 60.0 45 100.0 1 46

DID NOT COMPLY N 28 69 97 10 107

% 28.9 71.1 100.0

Not TOTAL Available INSTRUCTED N 0 0 0 1 1

N 46 96 142 12 154

% 32.4 67.6 100.0

ACES COMPLIED Court Outcome at 2nd appearance Disposed Continued SUBTOTAL Warrant Ordered/Stayed TOTAL Instructed

N % 21 50.0 21 50.0 42 100.0 1 43

DID NOT Not TOTAL Available INSTRUCTED COMPLY N % N N % 23 7 34.3 51 41.8 44 65.7 6 71 58.2 13 67 100.0 122 100.0 3 6 10 19 70 132

-33Thus, for both Summary and DAT defendants, non-compliance with the instruction to retain private counsel seemed to be associated with lower disposition rates at the second appearance.

D.3. Re-Instruction at the Second Appearance The ACES-period Summary defendants who did not comply with the arraigning judges' instructions to retain were more likely to be re-instructed at the second appearance to secure private counsel for subsequent appearances than were comparable non-compliant defendants during the baseline period (23.6% versus 14.4%). Of course, the number of cases continued from appearance to appearance grew smaller and consequently, the number of defendants re-instructed to retain private counsel was small: 92 baseline defendants and 148 ACES defendants at the second appearance.

The DAT defendants also differed from their Summary counterparts in that the DAT defendants in the ACES sample who did not comply with the initial judicial order to retain private counsel were no more likely to be re-instructed to retain at the second appearance (25.0%) than were DAT defendants in the baseline sample (26.9%).

Again, the number of defendants who were re-instructed was small. Only 39 baseline and 27 ACES defendants who did not comply with the court's instruction at arraignment to retain private counsel were subsequently re-instructed to retain private counsel when private counsel was not present at arraignment nor at the second appearance.

Thirty-eight percent of re-instructed baseline defendants and 44 percent of reinstructed ACES defendants who returned to court for a third appearance brought a private attorney. Again, non-compliance characterized the majority of instructed defendants. In the third and subsequent appearances, non-compliant defendants in

-34the ACES period were more likely than those in the baseline period to see their cases continued and to be instructed again to retain private counsel.

E. PRIVATE ATTORNEY RETENTION RATES THROUGH CASE DISPOSITION IN CRIMINAL COURT Defendants whose cases were adjourned at arraignment during the baseline and ACES periods were almost equally likely to have retained a private attorney during the course of their prosecution in Criminal Court. Twenty-five percent of ACES defendants and 24 percent of baseline defendants ever retained private counsel for at least one appearance during the prosecution of their cases.

The proportion of defendants who ever retained private counsel was higher among DAT defendants whose cases were continued at arraignment during the ACES period (39%) than among otherwise comparable defendants arraigned during the baseline period (27%) or Summary defendants arraigned during either research period (23% for both periods). The particularly high incidence of private representation among ACES-period DAT defendants did not appear to be entirely attributable to the implementation of ACES since the increase occurred both for defendants who were instructed at arraignment to retain private counsel as well as for defendants who were assigned publicly funded counsel.

-35TABLE II.E. Retention of Private Counsel Through Case Disposition in Criminal Court by Private Attorney Retention Status at Arraignment in Cases Continued at Arraignment BASELINE PERIOD:

PRIVATE ATTORNEY STATUS

Private Attorney Present N %

Private Attorney Not Present Not Instructed To Instructed To No Type Retain Retain N % N % N

TOTAL N

%

SUMMARY Cases: Ever Retained Never Retained Total Summary Cases

288 100.0 0 0.0 288 100.0

407 61.5 255 38.5 662 100.0

255 8.1 2898 91.9 3153 100.0

0 2 2

950 23.1 3155 76.9 4105 100.0

100 100.0 0 0.0 100 100.0

77 50.0 77 50.0 154 100.0

28 5.7 465 94.3 493 100.0

0 12 12

205 27.0 554 73.0 759 100.0

DAT Cases: Ever Retained Never Retained Total DAT Cases

ACES PERIOD:

PRIVATE ATTORNEY STATUS

Private Attorney Present N %

Private Attorney Not Present Not Instructed To Instructed To No Type Retain Retain N % N % N

TOTAL N

%

SUMMARY Cases: Ever Retained Never Retained Total Summary Cases

276 100.0 0 0.0 276 100.0

430 64.5 237 35.5 667 100.0

255 7.9 2954 92.1 3209 100.0

1 5 6

962 23.1 3196 76.9 4158 100.0

69 100.0 0 0.0 69 100.0

74 56.1 58 43.9 132 100.0

27 11.9 200 88.1 227 100.0

5 17 22

175 38.9 275 61.1 450 100.0

DAT Cases: Ever Retained Never Retained Total DAT Cases

E.1. Private Attorney Retention Rates for Defendants Instructed at Arraignment to Retain Private Counsel for the Second Appearance The private attorney retention rates presented above compared the rates for defendants whose cases were continued at arraignment during the two research periods. In this section, the rates are compared just for defendants who were instructed at arraignment to retain private counsel. Roughly eight hundred defendants in each research period were instructed at arraignment to retain private counsel for

-36subsequent appearances. The differences are small, but for both Summary and DAT defendants, ACES defendants were more likely to eventually retain private counsel (64.5% versus 61.5% among Summary defendants and 56.1% and 50.0% among DAT defendants).

Of course, this simple comparison alone cannot substantiate the claim that the difference is attributable to implementation of ACES. However, Summary defendants arraigned during the implementation period who were not instructed at arraignment to secure private representation were no more likely to do so than were their baseline counterparts (7.9% during ACES versus 8.1% during the baseline period). However, the private-counsel-retention rate for defendants assigned public defense services at arraignment was higher among DAT defendants arraigned during the implementation period (11.9%) than during the baseline period (5.7%).

E.2. Increased Compliance from the Second Appearance to the Final Disposition in Criminal Court As presented earlier in this report, almost half of the defendants who were instructed to retain private representation complied by the second appearance (46.7% of during the baseline period and 45.0% during the implementation period). When examining Summary and DAT cases separately, compliance rates at the second appearance were consistently higher for Summary defendants than for DAT defendants (50% versus 32% for the baseline period; 46% versus 40% for the implementation period). The compliance rates were slightly higher for Summary defendants instructed to retain private counsel at arraignment during the baseline than during the ACES research period, but were substantially higher for DAT defendants arraigned during ACES than for those arraigned during the baseline comparison period.

When the proportion of instructed defendants who complied as of the second appearance is compared to the proportion who complied by the end of Criminal Court

-37prosecution, the effect of repeated re-instruction for ACES-period defendants is clear: Private counsel retention rates for ACES Summary defendants increased by 18 percentage points from the second appearance to the close of prosecution, compared to an increase of 11 percentage points for baseline Summary defendants, a difference of seven percentage points. Among DAT defendants, the difference was negligible.

The ACES-period private counsel retention rates increased 16 percentage points, compared to 18 percentage points during the baseline period.

It is again important to mention that the seven percentage point increase in the overall rate of private representation for ACES Summary defendants instructed at arraignment to retain over their baseline counterparts translates to the hiring of roughly 50 attorneys (seven percent of the 800 Summary defendants who were so instructed at arraignment). This number is in the context of the roughly five thousand defendants screened for assigned counsel eligibility to produce this apparent outcome.

The next sections of this report address the extent to which the implementation of the screening program was associated with changes in length of case prosecution in Criminal Court, or in Criminal Court disposition.

-38F. LENGTH OF CASE This section examines length of case in terms of the number of times the defendant appears in court before the charges reach final Criminal Court disposition, or the close of data collection.* The arraignment appearance is tallied as the first appearance. Only defendants whose cases were continued at arraignment are included in this analysis. Although the number of appearances to disposition is likely to reflect the elapsed time to disposition, these two measures of length of case are not identical. Some defendants might have several appearances within a short period of time while others might have fewer appearances over a longer period of time. The average number of appearances is reported here since that measure more closely represents represents the expenditure of court resources.

Baseline and ACES defendants whose cases were continued at arraignment made an average of 3.8 appearances in Criminal Court (median of 3.0), including the arraignment appearance, before their cases reached final disposition. Approximately a third had two appearances, 27 percent had three appearances, roughly a sixth had four appearances, and a quarter had five or more appearances scheduled before their cases reached final Criminal Court adjudication.

The mean (3.8) and median (3.0) number of appearances to the final Criminal Court disposition were virtually the same for Summary and DAT

*

It is important to note that we have actually tallied Criminal Court calendar lines, which means that, when a defendant fails to appear as scheduled, that calendar line and the calendar line that follows, the "return-on-warrant" line, if any, is tallied as well. Calendar lines were tallied until the case reached the first final disposition in Criminal Court, or until the close of data collection eight to ten months after arraignment, whichever is earlier. Although calendar-line tallies are larger than tallies of actual appearances, they do reflect court activity. To the extent that the proportions of defendants who fail to appear and the proportions who return on warrants are comparable for the two research periods, counts of calendar lines represent reliable measures of length of case.

-39defendants arraigned during the baseline period and for ACES-period Summary defendants, and slightly lower for ACES DAT defendants (3.6 mean and 3.0 median). Differences by the severity of the amended charge leaving arraignment were also extremely small and did not differ between the baseline and ACES periods.

F.1. Length of Case by Retention of Private Counsel Length of case, as measured by the number of appearances until disposition in Criminal Court, was slightly longer for defendants who ever retained private counsel than for defendants who did not retain private defense services during the pendency of the charges against them. The difference was a bit larger during the ACES period. Baseline defendants who ever retained private representation showed a mean length of case of 4.0 appearances compared to 3.7 appearances for those who never hired a private attorney. The ACES figures were 4.2 and 3.6 appearances, a difference of more than half an appearance. The difference is even larger in the ACES period for DAT defendants where those who retained private counsel had a mean of 4.1 appearances before disposition while those who did not had a mean of 3.4 appearances. The mean number of appearances for baseline-period DAT defendants who ever retained private counsel was about the same but the mean for those who did not secure private representation was higher (3.8).

The pattern was similar when the average number of appearances was examined by retention of private counsel separately for defendants with felonylevel amended charges and those who faced lesser charges leaving arraignment. Defendants who retained private counsel showed a slightly larger mean number of appearances to final Criminal Court disposition than those who did not hire private counsel. The difference is wider during the ACES period where defendants with felony charges showed a mean of 4.3 appearances with

-40private representation versus a mean of 3.6 without private counsel and defendants with lesser charges showed means of 4.2 and 3.7, respectively.

F.2. Length of Case by Retention of Private Counsel for Defendants who were Instructed at Arraignment The number of appearances required for case disposition is larger for defendants who were instructed at arraignment to hire a private attorney and eventually did so than for instructed defendants who never retained private counsel. Defendants who were instructed at arraignment to retain private counsel who actually hired a private attorney showed longer mean length of case (4.2 and 3.9 appearances for ACES and baseline defendants, respectively) than those who never retained private counsel (3.6 and 3.4 appearances, respectively, for ACES and baseline defendants). This finding is consistent with the data presented above that showed longer appearance histories for defendants who hired private representation, regardless of the judicial attorneyassignment decision at arraignment. The mean figures for the ACES period were higher than for the baseline period and the differences between those who complied and those who did not are a little wider.

For DAT defendants, the difference in number of appearances for those who did or did not retain private representation as instructed at arraignment is even evident in the median values. ACES DAT defendants who were instructed at arraignment to retain private counsel and who eventually did so showed higher mean and median number of appearances (3.9 and 3.0) than instructed ACES DAT defendants who did not comply (3.2 and 2.0). Baseline DAT defendants who complied with the judicial instruction at arraignment showed longer mean and median length of case to disposition (4.5 and 4.0) than their non-compliant counterparts (3.7 and 3.0). However, unlike the Summary defendants, it was the baseline not the ACES DAT cases that had the higher average number of appearances to disposition in Criminal Court.

-41TABLE II.F.2. Mean and Median Number of Appearances to Criminal Court Disposition by Type of Attorney Assigned at Arraignment and Retention of Private Counsel BASELINE PRIVATE ATTORNEY STATUS:

Private Attorney Present at Arraignment Mean Median

N

Private Attorney Not Present Instructed to Not Instructed to Retain at Retain at Arraignment Arraignment Mean Median

N

Mean Median

N

No Type N

TOTAL Mean Median

N

SUMMARY Ever Retained Never Retained

3.72 -

3.00 288 3.88 -0 3.40

3.00 407 3.00 255

4.33 3.75

4.00 255 3.00 2898

0 2

3.95 3.64

3.00 950 3.00 3155

TOTAL Continued at Arraignment

3.72

3.00 288 3.70

3.00 662

3.80

3.00 3153

2

3.78

3.00 4105

Ever Retained Never Retained

3.82 --

3.00 100 4.47 -0 3.69

4.00 3.00

77 77

3.71 3.80

3.00 3.00

28 0 465 12

4.05 3.78

3.00 3.00

205 554

TOTAL Continued at Arraignment

3.82

3.00 100 4.08

3.00 154

3.80

3.00

483 12

3.85

3.00

759

DAT

ACES PRIVATE ATTORNEY STATUS:

Private Attorney Present at Arraignment Mean Median

N

Private Attorney Not Present Instructed to Not Instructed to Retain at Retain at Arraignment Arraignment Mean Median

N

Mean Median

N

No Type N

TOTAL Mean Median

N

SUMMARY Ever Retained Never Retained

3.98 --

3.00 276 4.23 -0 3.65

3.00 430 3.00 237

4.68 3.64

4.00 255 3.00 2954

1 5

4.23 3.64

3.00 962 3.00 3196

TOTAL Continued at Arraignment

3.98

3.00 276 4.02

3.00 667

3.72

3.00 3209

6

3.79

3.00 4158

Ever Retained Never Retained

3.90 --

3.00 --

69 3.89 0 3.22

3.00 2.00

74 58

4.93 3.44

4.00 3.00

27 5 200 17

4.06 3.37

3.00 3.00

175 275

TOTAL Continued at Arraignment

3.90

3.00

69 3.60

3.00 132

3.62

3.00

227 23

3.64

3.00

450

DAT

-42Overall, the mean number of appearances to Criminal Court disposition was about the same for the ACES and baseline periods. However, the mean was somewhat higher for those who ever retained private counsel than for those who did not. Moreover, the mean for those who complied with an instruction to retain at arraignment was higher than for those who did not comply with that instruction. Finally, these differences were somewhat greater during the ACES than the baseline period. These findings may reflect the greater tendency for judges in the ACES period to adjourn the case and re-instruct non-compliant defendants to retain private counsel. Or, since the increased average length of case can be observed even among defendants who retained private counsel without judicial instruction to do so, there may be other explanations. For example, private counsel may require more appearances to bring cases to disposition. In the absence of data on reasons for adjournments, it is not within the purview of this report to determine if the higher average number of appearances from arraignment to disposition in Criminal Court found among defendants represented by private counsel is attributable to their “better� representation, scheduling difficulties, or other reasons.

G. FINAL CRIMINAL COURT DISPOSITION If the information provided to the courts through the ACES project had produced a significant change in the pattern of attorney assignments, that change, in turn, could have produced a change in the pattern of case dispositions obtained in the Criminal Court. Although the changes in the pattern of attorney assignments were modest, indeed, we did look at the dispositions obtained in those cases that continued beyond arraignment. The Criminal Court dispositions were almost identical during the two research periods. Almost three of every ten defendants whose cases were continued at arraignment pled guilty in Criminal Court and were sentenced. An additional three percent pled guilty but their cases were adjourned pending sentencing. A third of the cases resulted

-43in acquittal, dismissal or adjournment in contemplation of dismissal and three of every ten were transferred to Supreme Court for adjudication. Five percent of baseline cases and 5.7 percent of ACES cases remained pending in Criminal Court at the close of data collection, primarily due to outstanding warrants for failure to appear.

When analysis is restricted solely to defendants whose cases reached final disposition in Criminal Court (pending cases and those transferred to Supreme Court are excluded), the Criminal Court conviction rates are 47.7 percent for the baseline period and 49.7 percent for the ACES period. Summary defendants were more likely to be convicted in Criminal Court than were DAT defendants, especially during the ACES-implementation period. Roughly half of the Summary defendants whose cases were continued at arraignment during either period and were disposed in Criminal Court were convicted, compared to 41 percent of baseline DAT defendants and 35 percent of ACES DAT defendants.

-44III. THE RELATIONSHIP BETWEEN INCOME ELIGIBILITY AND THE ATTORNEY-ASSIGNMENT DECISION AT ARRAIGNMENT Thus far in this report, we have seen that implementation of ACES did not increase the volume or proportion of Summary defendants who were instructed to retain private counsel at arraignment. The proportion of DAT defendants who were instructed rose somewhat. Compliance with the instruction at the second appearance changed little over time, remaining well under 50 percent. The proportion of defendants who retained private counsel at any point during their prosecution in Criminal Court was slightly higher during the ACESimplementation period.

We have also seen that few screened defendants were rated income ineligible for assigned counsel during the ACES period, and that retroactive application of that rating scheme to the baseline sample showed little difference in the proportion of those defendants deemed ineligible on income.

The issues that remain open concern the utility of the eligibility rating and screening criteria. Did the attorney-assignment decisions made by the arraigning judges reflect the defendant income-eligibility ratings? Did the income-eligibility data effect the judicial decision such that the composition of the pool of defendants instructed to retain during the ACES period more closely reflected the Standards than did those instructed during the baseline period? Are defendants who were income eligible for assigned counsel, but who were instructed to retain private representation, more likely to do so than instructed defendants who were income-ineligible?

This section specifically explores the relationship between the incomeeligibility rating and attorney-assignment decisions at arraignment. Compliance rates at the second appearance are examined for instructed defendants

-45separately by income-eligibility rating. The actual take-home pay figures for each income-eligibility category are compared for baseline and ACES-implementation defendants.

A. PRIVATE ATTORNEY STATUS AT ARRAIGNMENT BY INCOME ELIGIBILITY During both research periods, defendants who were not income eligible for assigned counsel were far more likely to be instructed to retain private counsel at arraignment than were those who were eligible for publicly funded defense services. This finding indicates that, even without formal screening for assigned counsel eligibility, the attorney-assignment decisions generally reflected defendants' economic status. However, the findings also show that the implementation of ACES served to strengthen the relationship between income eligibility and attorney assignment. During the ACES-implementation period, the proportion of Summary defendants who were income eligible at the misdemeanor and felony levels who were instructed to retain was slightly lower (8%, versus 11%) and the proportion of ineligible defendants who were instructed to retain was substantially higher (68%, versus 52%) than during the baseline period. The pattern was the same for the intermediate income-eligibility categories where the charge determines whether the defendants' levels of income and dependents qualify them for assigned counsel. The proportion of ACES Summary defendants who were eligible only at the felony level and were felony charged who were instructed to retain was lower (32%, versus 39% for baseline Summary defendants) and the proportion of ACES-period defendants who were eligible at the felony level only but were not felony charged who were instructed to retain was higher (57% versus 52%).

Thus, different proportions of defendants in each income-eligibility category were instructed to retain private counsel during the two research periods. This affected the composition of the pool of defendants who were

-46-

TABLE III.A.1. Private Attorney Status at Arraignment By Defendant Income Eligibility * For Assigned Counsel For Summary Arrests

BASELINE INCOME ELIGIBILITY:

INCOME ELIGIBLE: NOT INCOME ELIGIBLE: Not Felony & Felony Only: Felony & Felony Only: AvailMisdemeanor Misdemeanor No Felony Felony able ** Charged Charge N % N % N % N % N

ATTORNEY STATUS: Private Attorney Present

182

5.4

21

13.8

55

19.0

9

Private Attorney Not Present: Instructed to Retain Not Instructed to Retain

361 2824

10.7 83.9

59 72

38.8 47.4

152 83

52.4 28.6

57 42

Subtotal Not available

3367 100.0 2

152 0

100.0

TOTAL Continued at Arraignment

3369

152

8.3

TOTAL Instructed to Retain N %

21

288

7.0

52.8 33 38.9 132

662 3153

16.1 76.8

290 100.0 0

108 100.0 186 0 0

4103 100.0 2

290

108

4105

186

ACES INCOME ELIGIBILITY:

INCOME ELIGIBLE: NOT INCOME ELIGIBLE: Not Felony & Felony Only: Felony & Felony Only: AvailMisdemeanor Misdemeanor No Felony Felony able ** Charged Charge N % N % N % N % N

ATTORNEY STATUS: Private Attorney Present

189

5.7

16

8.3

47

13.5

7

Private Attorney Not Present: Instructed to Retain Not Instructed to Retain

265 2853

8.0 86.3

62 115

32.1 59.6

236 66

67.6 18.9

76 51

Subtotal Not available

3307 100.0 6

193 0

100.0

TOTAL Continued at Arraignment

3313

193

5.2

TOTAL Instructed to Retain N %

17

259

6.5

56.7 28 38.1 124

639 3085

16.0 77.5

349 100.0 0

134 100.0 169 0 0

4152 100.0 6

349

134

4158

169

* The ACES Interview was not conducted for arrestees who indicated that they intended to hire a private attorney. Employment and income data were instead taken from the standard CJA ROR Interview (available only for Summary arrests). ** Includes defendants who were not interviewed and interviewed defendants for whom income or dependents data were not available

-47instructed to hire private counsel in terms of their income-eligibility rating. Only 41.5 percent of the ACES instructed to retain private counsel were incomeeligible for assigned counsel at both the felony and misdemeanor levels compared to 54.5 percent of baseline defendants. (This difference can be observed even when analysis is restricted to adult defendants aged 21 or older, but with lower rates of income eligibility during both research periods. Only 30.8 percent of the adult defendants who were instructed to retain during ACES, but 46.8 percent of those instructed during the baseline period, were income eligible). Conversely, more than a third of the ACES defendants who were instructed to retain were not eligible at the felony or misdemeanor level, compared to less than a quarter of baseline defendants. The differences were small for the intermediate eligibility categories.

Among ACES-period defendants who were issued DATs and whose cases were continued at arraignment, a quarter of those deemed eligible for assigned counsel were instructed to retain private counsel compared to eight percent of similarly situated Summary defendants and three-quarters of those whose incomes were greater than the cutoff for attorney assignment. More than two-thirds of the DAT defendants who were instructed to retain were actually eligible for assigned counsel based on their own income compared to 42 percent of similarly situated Summary defendants. This indicates that the incomeeligibility rating was more closely associated with the assignment decisions in Summary cases than in DAT cases.

For Summary defendants, the information reduced the level of instruction among income-eligible defendants and increased the level of instruction among income-ineligible defendants. It is notable, however, that 41 percent of the Summary defendants instructed to retain private counsel during the ACES period were actually income eligible for assigned counsel.

-48TABLE III.A.2. Private Attorney Status at Arraignment By Defendant Income Eligibility * For Assigned Counsel For DAT Arrests

ACES INCOME ELIGIBILITY:

DAT ELIGIBLE: NOT INCOME ELIGIBLE: Not Felony & Felony & Felony Only: Avail- Intends TOTAL Misdemeanor Misdemeanor No Felony able to Hire Instructed to ** Charge Retain N % N % N % N N N %

ATTORNEY STATUS: Private Attorney Present

6

0.2

2

10.0

2

11.1

11

48

69

16.1

Private Attorney Not Present: Instructed to Retain Not Instructed to Retain

66 198

24.4 73.3

16 2

80.0 10.0

14 2

77.8 11.1

31 17

5 8

132 227

30.8 53.0

Subtotal Not available

270 100.0 17

20 100.0 0

18 100.0 1

59 2

61 2

428 22

100.0

TOTAL Continued at Arraignment

287

20

19

61

63

450

* The ACES Interview was not conducted for arrestees who indicated that they intended to hire a private attorney.

For Summary arrests, employment and income data were instead taken from the standard CJA ROR Interview.

However, DAT arrestees are not routinely interviewed by CJA. ** Includes defendants who were not interviewed and interviewed defendants for whom income or dependents data were not available.

B. DEFENDANT AVERAGE WEEKLY TAKE-HOME PAY BY INCOME ELIGIBILITY Median defendant weekly take-home pay was identical for employed baseline and ACES Summary defendants for each category of income eligibility.

As one might expect, defendants who were not eligible showed the highest median pay ($500) and defendants who were eligible regardless of charge showed the lowest median pay ($200). Defendants who were income eligible at the felony charge level only showed intermediate median incomes ($300).

During both research periods, the mean income was slightly higher for defendants who were eligible only at the felony level but were not felony charged ($331 during the baseline period and $327 during ACES) than for defendants

-49who were eligible at the felony level only and were charged with felonies at arraignment ($313 for both periods). The pattern was the same for ACES DAT defendants, but the mean and median take-home pay figures were lower for all but one income-eligibility category.

C. DEFENDANT AVERAGE WEEKLY TAKE-HOME PAY BY PRIVATE ATTORNEY STATUS AT ARRAIGNMENT AND INCOME ELIGIBILITY Summary defendants who were instructed to retain private counsel reported higher incomes during the ACES than during the baseline research period. This reflects the earlier finding that during the ACES period the court instructed retention for a smaller portion of income-eligible defendants. The mean and median take-home pay for employed Summary defendants whose cases were continued at arraignment was $381 and $326 (excluding one extraordinarily high defendant weekly take-home pay of $15000, which had brought the mean to $413 and the median to $328) for the baseline period and $434 and $380 for the ACES period, respectively. However, this conceals the important finding that the mean and median pay were actually the same or slightly lower during the ACES period for each of the income-eligibility categories, with the small differences ranging from one to thirteen dollars. The only income figures that were higher during ACES for those instructed to retain were the overall figures. This apparent anomaly reflects the differences that were discussed above in the income-eligibility distributions that characterized employed defendants who were instructed to retain during the two research periods. Here, almost half (48%) of the employed Summary defendants whose cases were continued at arraignment and who were instructed to retain during the ACES period were not income eligible for assigned counsel compared to only a third (34%) of the employed baseline defendants. Similarly, less than a quarter of employed ACES Summary defendants who were instructed to retain were income eligible for assigned counsel regardless of charge compared to 41

-50percent of the employed baseline defendants. Thus, the employed ACES defendants who were instructed to retain private attorneys were more heavily concentrated in the highest income-eligibility category while the baseline defendants were more heavily concentrated in the lowest income-eligibility category. Thus, overall, the ACES defendants who were instructed to retain showed higher mean and median take-home pay. This seems to be a clear positive effect of the Assigned Counsel Eligibility Screening Project.

TABLE III.C.1. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for Summary Arrests* BASELINE

ELIGIBILITY STATUS Eligible:

Private Attorney Present mean median N

Not Available

N

TOTAL mean median N

82

227.15 200.00 184

180.05 180.00

705

0

190.11 200.00

971

328.81 300.00

21

326.90 300.00

59

298.03 300.00

72

0

313.49 300.00

152

386.11 400.00

9

351.02 350.00

57

291.70 300.00

42

0

330.88 300.00

108

Not Eligible Misdemeanor or Felony

727.00 650.00

55

599.70** 500.00 152

569.40 500.00

83

0

615.23** 500.00

290

SUBTOTAL

396.56 380.59** 300.00 167 326.00* 16 183

902 57 959

0 0 0

293.28** 250.00 1521 100 1621

Felony and Misdemeanor

Eligible: Felony Only: felony charged

Not Eligible: Felony Only: not felony charged

Employed - pay not available

Total Employed

193.43 200.00

Private Attorney Not Present: Instructed Not Instructed To Retain To Retain mean mean median N median N

452 27 479

230.50 200.00

Employment not available Interview Not Available

99 1 5

177 0 6

2112 7 75

2 0 0

2390 8 86

TOTAL Continued at Arraignment

288

662

3153

2

4105

Not Employed

* The ACES Interview was not conducted for arrestees who indicated that they intended to hire a private attorney. Employment and income data were instead taken from the standard CJA ROR Interview (available only for Summary Arrests). ** Excludes one defendant weekly take-home pay of $15000.

-51TABLE III.C.2. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for Summary Arrests* ACES

ELIGIBILITY STATUS Eligible: Felony and Misdemeanor

Private Attorney Present mean median N 79

218.56 200.00

327.50 300.00

16

342.86 350.00

Not Eligible Misdemeanor or Felony

560.00 500.00

SUBTOTAL

337.73 300.00 149 6 155

Eligible: Felony Only: felony charged

Not Eligible: Felony Only: not felony charged

Employed - pay not available

TOTAL Employed

207.11 200.00

Private Attorney Not Present: Instructed Not Instructed To Retain To Retain mean mean median median N N

Not Available

N

TOTAL mean median N

114

191.91 200.00

827

1

196.09 200.00 1021

325.23 300.00

62

303.84 300.00

115

0

312.67 300.00

193

7

338.00 325.00

76

308.53 300.00

51

0

327.04 300.00

134

47

598.38 500.00

236

562.12 450.00

66

0

586.36 500.00

349

1059 28 1087

1 0 1

299.95 250.00 1697 43 1740

434.40 380.00

488 9 497

232.76 200.00

Employment not available Interview not available

101 9 11

119 32 19

1806 220 96

5 0 0

2031 261 126

TOTAL Continued at Arraignment

276

667

3209

6

4158

Not Employed

* The ACES Interview was not conducted for arrestees who indicated that they intended to hire a private attorney. Employment and income data were instead taken from the standard CJA ROR Interview (available only for Summary Arrests).

ACES DAT defendants who were instructed to retain private counsel generally showed lower take-home pay figures than did ACES Summary defendants, despite the fact that the courts ordered retention of private counsel more frequently in DAT (30.8%) than Summary cases (20.6%).

-52TABLE III.C.3. Defendant Average Weekly Take-Home Pay by Private Attorney Status at Arraignment and Income Eligibility for Assigned Counsel for DAT Arrests*

ACES PERIOD MISDEMEANOR ELIGIBILITY STATUS Eligible Not Eligible Subtotal Employed-pay not available

TOTAL Employed Not Employed Employment status not available Interview Not Available

DAT Intends To Hire Total Continued at Arraignment

Private Private Attorney Not Present: Attorney Instructed Not Instructed Present To Retain To Retain mean mean mean median N median median N N

Not Available

N

TOTAL mean median N

80.00 80.00

1

195.57 195.00

30

181.66 172.50

58

3

185.28 179.50

92

412.50 412.50

4

487.25 500.00

30

420.00 420.00

4

1

473.05 430.00

39

62 4 66

4 0 4

245.73 213.00 131 7 138

291.00 300.00

5 0 5

300.78 300.00

60 3 63

191.55 177.00

3 2 11 48

28 8 5 28

112 28 13 8

11 3 2 2

154 41 31 86

69

132

227

22

450

D. COMPLIANCE WITH INSTRUCTION TO RETAIN AT THE SECOND APPEARANCE BY INCOME ELIGIBILITY Almost half of baseline (48.1%) and ACES (44.9%) Summary defendants and fewer (38.1%) ACES DAT defendants whose cases were continued at arraignment and who were instructed to retain private counsel brought a private attorney to the second appearance. Thirty percent of DATs whose cases were continued at arraignment during the baseline period who were instructed to retain private counsel retained private defense services by the next appearance.

However, since no income-eligibility data is available for baseline DAT defendants, compliance rates cannot be examined here for these defendants.

-53Among Summary defendants, compliance was greatest among the 59 baseline and 62 ACES defendants who were actually eligible for assigned counsel at the felony level and were felony charged leaving arraignment but were instructed to retain private counsel by the court (54.2% and 55.2%). Perhaps the court noted the presence of defendant assets or of parental or spousal or other income to supplement the defendant's income such that the defendant was actually able to hire a lawyer despite apparent eligibility for assigned counsel.

Compliance was lowest for the 57 baseline and 76 ACES Summary defendants whose income qualified them for assigned counsel only if facing felony charges but who were charged with misdemeanors (29.8% and 26.0%, respectively). Although the guidelines suggested that these defendants had sufficient income to retain private counsel at the misdemeanor level, few were actually able to secure private defense services as of the second appearance.

Compliance rates were also similar for the 361 baseline and 265 ACES Summary defendants who were eligible for assigned counsel at both the misdemeanor and felony levels but were instructed to retain (48.1% and 46.5%).

The compliance rate for this income-eligibility category was particularly low for the ACES DAT defendants (32.2%). It seems that the court observed defendant resources that were sufficient to override apparent eligibility for assignment and that for many of these defendants the assets met the expense of hiring a private attorney.

The largest differences between the two research periods occurred for defendants who were not eligible at either the felony or misdemeanor level and were instructed to retain. More than half (52.6%) of the 152 baseline defendants who were ineligible for assigned counsel and were instructed to retain returned to the second appearance with a private attorney compared to

-54only 46.6 percent of their 236 ACES period counterparts. It seems that the court instructed a greater volume of ACES defendants who were not eligible for assigned counsel to seek private defense services in accordance with the ACES income-eligibility charts but that, perhaps because the criteria were too stringent, a smaller proportion of the ineligible defendants who were instructed to retain were actually able to return to court with private counsel.

Half of ACES DAT defendants who were not eligible for assigned counsel and who were instructed to retain private counsel for the second appearance actually returned to court with private representation.

D.1. Defendant Average Weekly Take-Home Pay by Compliance with the Instruction to Retain Private Counsel for the Second Appearance Average weekly take-home pay was higher for ACES Summary and DAT defendants instructed to retain counsel who complied with the court's instruction than for those who did not comply but was not higher for baseline Summary defendants who retained private counsel as instructed. During the ACES research period, Summary defendants who retained private counsel as instructed reported higher mean and median take-home pay ($475 and $400) than did defendants who were instructed to retain private counsel at arraignment but failed to comply with the court's instructions by the second appearance ($411 and $350). Compliant ACES DAT defendants also showed higher mean weekly income ($339) than did ACES DAT defendants who did not retain private counsel as instructed by the court ($261), although the median take-home pay figures were identical ($300). During the baseline period, Summary defendants who retained private counsel as instructed did not show higher mean and median take-home pay than did their 'non-compliant' counterparts ($412 and $350 versus $490 and $350).

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D.2. Defendant Average Weekly Take-Home Pay by Income Eligibility For Assigned Counsel and Compliance with the Instruction to Retain Private Counsel Average take-home pay varied inconsistently by the type of attorney present at the second appearance for defendants who were eligible for assigned counsel based on their own income but who were instructed to retain. During the baseline period, Summary defendants who were income eligible but complied with the court's instruction and retained private counsel showed lower mean and median take-home pay than those who did not comply with the court's instruction ($236 and $200 versus $256 and $225), while during the ACES period both Summary and DAT defendants who complied with the court's instruction to retain despite eligibility for assigned counsel did show higher mean and median take home pay ($230 and $250 versus $213 and $200 for ACES Summary defendants and $216 and $200 versus $193 and $190 for ACES DAT defendants). However, as mentioned above, it seems that the court's decision to instruct defendants who were income eligible for assigned counsel might reflect the presence of assets in addition to the small personal incomes these defendants reported. Median defendant income figures for defendants who were not eligible for assigned counsel at the felony and misdemeanor level and who complied with the court's instruction to retain private counsel were no higher than those for similar defendants who did not comply with the Court's instruction for Summary defendants during either research period nor for the ACES DAT defendants. The mean figures for these groups also varied inconsistently. They were slightly higher during the ACES period for both Summary and DAT defendants and slightly lower for the Summary defendants during the baseline period.

-56IV. INCOME ELIGIBLE BUT INSTRUCTED TO RETAIN PRIVATE COUNSEL As mentioned in earlier sections of this report, the attorney-assignment decision at arraignment is not always consistent with the income and number of dependents guidelines suggested by the Standards. Two hundred sixty-five (265) ACES Summary defendants and 66 ACES DAT defendants were instructed to retain private counsel even though their own income qualified them for assigned counsel at both the misdemeanor and felony charge levels. There were 62 additional Summary defendants who were income eligible for assigned counsel only at the felony level and who were felony charged but who were instructed to retain private counsel. In this section, income-eligible defendants who were instructed by the court to hire a private attorney are compared with their income-eligible counterparts who were not instructed to retain private representation. The goal is to identify the factors not reflected in the defendant income-eligibility rating that were associated with the judicial decision to deny these defendants assigned counsel.

A. THE DEFENDANT’S EMPLOYMENT STATUS Many defendants who were rated income eligible for assigned counsel based on their own income but who were instructed to retain private counsel were actually employed. Although some even worked full-time, their earnings were within the income range to qualify for publicly funded counsel in accordance with the income-eligibility guidelines established by the Committee. It was expected that the defendants who were deemed eligible for assigned counsel but whom the judge instructed to retain private representation might be drawn primarily from the group of defendants who earned marginal incomes. The data suggest that this is true to some extent. Income-eligible defendants who were instructed to retain private counsel were twice as likely to be employed full time as their counterparts who were assigned counsel. Among Summary

-57defendants, almost half of the income eligible who were instructed to retain private representation were actually employed full time, compared to barely a quarter of those who were assigned counsel. The comparable figures for income-eligible DAT defendants were 36 and 18 percent, respectively.

TABLE IV.A. Defendant Employment Status For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

SUMMARY

Defendant Employment Status: Employed Full Time Employed Part Time SUBTOTAL Employed Unemployed SUBTOTAL Not Available TOTAL Income Eligible

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 144 32 176 119 295 32 327

% 48.8 10.8 59.7 40.3 100.0

DAT

ASSIGNED COUNSEL N 672 270 942 1806 2748 220 2968

% 24.4 9.8 34.3 65.7 100.0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 21 9 30 28 58 8 66

% 36.2 15.5 51.7 48.3 100.0

ASSIGNED COUNSEL N 31 27 58 112 170 28 198

% 18.2 15.9 34.1 65.9 100.0

B. BANK ASSETS Income-eligible defendants who were instructed at arraignment to secure private representation were more likely to have reported that they had a bank account than were income-eligible defendants who were assigned publicly funded counsel. Among the income eligible who were instructed to retain private counsel, the DAT defendants were more likely to report bank assets than were Summary defendants.

-58TABLE IV.B. Presence Of Defendant Bank Account For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

SUMMARY

Defendant Has Bank Account: YES NO SUBTOTAL Not Available TOTAL Income Eligible

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 69 206 275 52 327

% 25.1 74.9 100.0

DAT

ASSIGNED COUNSEL N 244 2636 2880 88 2968

% 8.5 91.5 100.0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 26 38 64 2 66

% 40.6 59.4 100.0

ASSIGNED COUNSEL N 32 166 198 0 198

% 16.2 83.8 100.0

Many defendants did not report the balance of their bank accounts.

However, the mean bank account balance reported was over $1000 for the income-eligible defendants who were instructed to retain, even when several very high values were excluded, and the mean was higher for those instructed than for those who were assigned counsel. The median was $500 for Summary defendants who were income eligible but who were instructed to retain private representation, but only $200 for the Summary defendants who were income eligible and assigned counsel.

C. THE DEFENDANT AS A DEPENDENT It was hypothesized that income-eligible defendants who were instructed to retain private counsel might be younger defendants dependent on parental income or married defendants dependent on spousal income. The sections that follow compare the age distributions, parental employment status for defendants under 21, marital status and spousal employment status for married defendants,

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for income-eligible defendants who were instructed to retain private counsel and for those who were assigned publicly funded representation.

C.1. Defendant Age The data indicate that, at least for the Summary arrestees, income-eligible instructed defendants were younger than income-eligible defendants who were assigned publicly funded counsel. More than a third of the Summary defendants who were instructed to retain private counsel despite income eligibility for assigned counsel were under 21, compared to only a quarter of income-eligible defendants who were assigned counsel. Similarly, among DAT defendants, almost half of the income-eligible defendants who were instructed to retain private counsel were under 21, compared to little more than a quarter of the income eligible who were assigned counsel.

TABLE IV.C.1. Age Distributions For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

SUMMARY

AGE: 13-15 16-20 21 or older Subtotal Age Not Available TOTAL Income Eligible

INSTRUCTED TO RETAIN PRIVATE COUNSEL N % 5 1.5 114 34.9 208 63.6 327 100.0 -327

DAT

ASSIGNED COUNSEL N 40 724 2200 2964 4 2968

% 1.3 24.4 74.2 100.0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N % 0 0.0 32 48.5 34 51.5 66 100.0 -66

ASSIGNED COUNSEL N 0 55 143 198 -198

% 0.0 27.8 72.2 100.0

C.2. Parental Employment The ACES interview included items on parental employment, income and bank accounts for all arrestees under age 21 and on spousal employment,

-60income and bank accounts for all arrestees who reported that they were married.

These data were not available for the 32 ACES Summary defendants whose income qualified them for publicly funded counsel but who told the ACES interviewer that they intended to hire a private attorney. As mentioned earlier, the ACES interview was not conducted for these defendants, so no supplementary income source information is available for analysis here.

As shown in the table below (Table IV.C.2.), young defendants who were income-eligible for assigned counsel based on their own income but who were instructed to retain private counsel were more likely to report that their parents were employed than were their counterparts who were assigned counsel. Nine of every ten income-eligible Summary defendants under age 21 who were instructed to retain private counsel reported that at least one parent worked full time, compared to only six of every ten income-eligible young defendants who were not instructed. Although full-time parental employment was less frequently reported by young DAT defendants than by young Summary defendants, the DAT defendants who were instructed to retain also showed the higher proportion of full-time-employed parents (63.3% versus 43.5%).

TABLE IV.C.2. Parental Employment Status For Income-Eligible Defendants Under Age 21 Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

Parental Employment Status: Employed Full Time Employed Part Time SUBTOTAL EMPLOYED Not Employed SUBTOTAL Not Available

TOTAL Income Eligible Under Age 21

SUMMARY INSTRUCTED TO RETAIN PRIVATE COUNSEL N 83 2 85 9 94

% 88.3 2.1 90.4 9.6 100.0

DAT

ASSIGNED COUNSEL N 371 28 399 208 607

% 61.1 4.6 65.7 34.3 100.0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 19 2 21 9 30

% 63.3 6.7 70.0 30.0 100.0

ASSIGNED COUNSEL N 20 2 22 24 46

25

157

2

9

119

764

32

55

% 43.5 4.3 47.8 52.2 100.0

-61As was shown earlier among all income-eligible defendants, some young income-eligible defendants were actually employed full time but earned less than the cutoff to disqualify them from assigned counsel. However, the proportion of under-21-year-olds who were income-eligible despite full-time employment is small, ranging from 14 to 18 percent for Summary and DAT defendants, and was not related to the judicial attorney-assignment decision.

C.3. Marital Status Defendants who were instructed at arraignment to hire a private attorney, despite income eligibility for assigned counsel at both charge levels were more likely to report that they were married than were income-eligible defendants who were assigned counsel at arraignment. Among Summary defendants, more than a quarter of those instructed to retain private counsel despite income eligibility for assigned counsel were married, compared to only 14.5 percent of those who were not instructed. Among DAT defendants, the comparable percentages were 29 and 19, respectively.

TABLE IV.C.3. Marital Status For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

Marital Status: Single Married Divorced, Widowed or Separated SUBTOTAL Not Available TOTAL Income-Eligible

SUMMARY INSTRUCTED TO RETAIN PRIVATE COUNSEL N % 234 71.8 83 25.5 9 2.8 326 1 327

100.0

DAT

ASSIGNED COUNSEL N 2353 427 171

% 79.9 14.5 5.8

2951 17 2968

100.0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N % 43 65.1 19 28.8 4 6.1 66 0 66

100.0

ASSIGNED COUNSEL N 128 37 28

% 66.3 19.2 14.5

193 5 198

100.0

-62C.4. Spousal Employment Status Income-eligible married defendants who were instructed to retain private counsel were more likely to have reported that their spouses were employed than were income-eligible married defendants who were not instructed. However, this finding is weak because so many defendants did not report their spouses’ employment status. The data were more complete among income-eligible married DAT defendants, but there are so few income-eligible married DAT defendants who were instructed to retain private counsel (19) that the high proportion of employed spouses (12 of the 16 with complete data) may not be reliable.

TABLE IV.C.4. Spousal Employment Status For Married Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

SUMMARY

Spousal Employment Status: Full Time Part Time SUBTOTAL EMPLOYED Unemployed SUBTOTAL

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 16 5 21 15 36

% 44.4 13.9 58.3 41.7 100.0

DAT

ASSIGNED COUNSEL N 87 21 108 108 216

% 40.3 9.7 50.0 50.0 100.

0

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 12 0 12 4 16

% 75.0 0.0 75.0 25.0 100.0

ASSIGNED COUNSEL N 9 1 10 12 22

Not Available

47

211

3

15

TOTAL Income-Eligible Married

83

427

19

37

% 40.9 4.5 45.4 54.5 100.0

D. SUMMARY OF SUPPLEMENTARY RESOURCES Examination of the supplementary resource information available for instructed-though-income-eligible defendants indicated that eight percent of the Summary and 18 percent of the DAT defendants reported that their spouses

-63were either employed, full or part time, or had a bank account. Almost three of every ten Summary and DAT defendants reported that their parents were either employed, full time or part time, or had a bank account. Among the defendants who were under the age of 21, 76 percent of the Summary and 66 percent of the DAT defendants reported either parental employment (full or part time) or bank accounts.

The table presented below summarizes the supplementary resources of all defendants who were instructed to retain private counsel despite income eligibility for assigned counsel (Table IV.D.). Since many defendants reported more than one type of resource, the categories are ranked in the order they

TABLE IV.D. Defendant Supplementary Resources For Income-Eligible Defendants Who Were Instructed to Retain Private Counsel and Those Who Were Assigned Counsel ACES

Defendant Supplementary Resources: Defendant’s Bank Account Parental Employment Parental Bank Account Spousal Employment Spousal Bank Account.

SUBTOTAL No Supplementary Resources: Defendant Not Employed Defendant Employed SUBTOTAL Not Available TOTAL Income Eligible

SUMMARY INSTRUCTED TO RETAIN PRIVATE COUNSEL

DAT ASSIGNED COUNSEL

N 69 68 0 9 0 146

% 24.6 24.3 0.0 3.2 0.0 52.1

N 244 332 4 80 0 660

% 8.4 11.5 0.1 2.8 0.0 22.8

52

18.5 29.3 100.0

1546 689 2895 73 2968

53.4 23.8 100.0

82 280 47 327

INSTRUCTED TO RETAIN PRIVATE COUNSEL N 26 12 0 6 0 44

10 12 66 0 66

ASSIGNED COUNSEL

% 39.4 18.2 0.0 9.1 0.0 66.7

N 32 18 0 7 1 58

% 16.2 9.1 0.0 3.5 0.5 29.3

15.2 18.2 100.0

106 34 198 0 198

53.5 17.2 100.0

appear in the table. For example, a young defendant with a bank account whose parents are employed is tallied in the “Defendant’s bank acct.” category.

-64Income-eligible defendants who were instructed to secure private representation were far more likely to report some supplemental resources than were their counterparts who were assigned counsel. More than half of the Summary defendants and two-thirds of the DAT defendants who were instructed despite income eligibility had at least one source of supplementary resources, compared to roughly a quarter of income-eligible defendants who were not instructed. Yet almost half of the Summary and a third of the DAT defendants whose income qualified them for assigned counsel but who were instructed to retain private counsel reported no personal bank account and no parental or spousal employment or bank assets.

Table IV.D. also presents the employment status of income-eligible defendants who had no supplementary resources. Income-eligible defendants who were assigned counsel were far more likely to report that they were not employed ( 53.3% and 53.5% for Summary and DAT defendants) than were defendants instructed to retain private counsel despite income eligibility (18.5% and 15.2% for Summary and DAT defendants). This suggests that, at least for some defendants, the income-eligibility criteria were deemed too generous by the court and defendants with incomes below the cutoff and with no supplementary resources were told to retain private counsel.

The category of defendants who were instructed to retain a private attorney despite income eligibility for assigned counsel and who were not employed and who reported none of the supplementary resources examined thus far is of interest here. More detailed examination of these defendants may illuminate additional factors the court considers in the attorney-assignment decision, even though there are only 52 Summary and ten DAT defendants in the category. For example, eight (12.9%) of the 62 defendants reported that they carried a mortgage on their primary residence. This seems to be a rather high proportion of home ownership, even shared home ownership, in a defendant group. Only six percent of the other income-eligible defendants who

-65were instructed to retain private counsel reported that they carried a mortgage as did only one percent of the income-eligible defendants who were assigned counsel. The presence of the mortgage responsibilities, or the presence of ‘hidden’ resources that meet the mortgage obligation, may have influenced the attorney-assignment decision.

In contrast, 11 (17.7%) of the 62 defendants reported that they owned a car. This rate is similar to the 14.8% car ownership among income-eligible instructed defendants with some type of supplementary resources and the 19.6% among all income-eligible defendants who were instructed to retain private counsel regardless of supplementary resources data or data availability.

However, only eight percent of income-eligible defendants who were assigned counsel reported that they owned a car.

Almost half of the income-eligible defendants without apparent supplementary resources who were instructed to retain private counsel (29 of 62, taking Summary and DAT defendants together) reported that they lived with their parents. This seems unexpectedly high, especially since only 13 of these defendants were under age 21. Thus, 26 (41.9%) of the 62 in the category were 21 years old or older and lived with their parents, including several defendants in their thirties. Defendants who were similarly income-eligible for assigned counsel and who were similarly instructed to retain private counsel but who reported some type of financial resources, even their own marginal employment, were far less likely to be 21 or older and living with their parents (3.9%). Perhaps the court instructed the defendants who had no apparent resources to retain private counsel in anticipation of the continued support of their parents, even though the ACES data collection form did not gather information on parental resources of adult defendants, even if they shared a residence. The parents of some adult defendants who reside together may be dependent on the adult defendant.

Perhaps the presiding judge questioned these defendants who were

-66over 21 about the resources of their parents. Almost a fifth of income-eligible defendants who were assigned counsel and were aged 21 or older also reported living with at least one of their parents.

E. COMPLIANCE WITH INSTRUCTION TO RETAIN PRIVATE COUNSEL FOR INCOME-ELIGIBLE DEFENDANTS WHO WERE INSTRUCTED

BY DEFENDANT SUPPLEMENTARY RESOURCES Among the income-eligible defendants who were instructed to retain private counsel, compliance at the second appearance was fifty percent or lower for each category of potential supplementary resources examined. Defendants who reported some supplementary resources were more likely to return to court with a private defense attorney than were the defendants who had no potential supplementary resources (Table IV.E.1.). However, defendants who were marginally employed (that is, defendants who were employed but earned less than the cutoff to be ineligible for assigned counsel) were less likely to comply with the instruction to secure private representation than were their counterparts who were not employed at all (33% versus 38%).

The pattern is similar for private counsel retention rates at any time during the course of case prosecution in the Criminal Court (Table IV.E.2.) as it was for compliance at the second appearance. Roughly two-thirds of the defendants who were instructed to retain counsel despite income eligibility for assigned counsel ever hired a private attorney. The lowest rate of private counsel retention (49%) was found among the defendants who were income eligible and showed no apparent supplementary resources beyond their own marginal employment to account for the judicial instruction to secure private representation. These defendants were employed, with earnings within the income range suggested by the Standards to qualify for assigned counsel. They

-67did not have a bank account, nor did their spouses. If the defendants were under age 21, their parents were not employed and also had no bank assets.

TABLE IV.E.1. Compliance Rates at the Second Appearance for Income-Eligible Defendants Instructed to Retain Private Counsel at Arraignment by Defendant Supplementary Resources ACES Defendant Supplementary Resources: Personal Bank Account Parental Employment or Bank Account Spousal Employment or Bank Account SUBTOTAL No Resources: Defendant Not Employed Defendant Employed SUBTOTAL Not Available TOTAL Income Eligible

Compliance Rate at Second Appearance

Not Available

SUBTOTAL

N 45 35 7 87

% 50.0 44.9 50.0 47.8

N 90 78 14 182

% 100.0 100.0 100.0 100.0

N 5 2 1 8

23 29 139 31 170

38.3 32.6 42.0

60 89 331 46 377

100.0 100.0 100.0

2 5 15 1 16

45.1

100.0

TOTAL N 95 80 15 190 62 94 346 47 393

TABLE IV.E.2. Private Counsel Retention Rates Prior to Disposition for Income-Eligible Defendants Who Were Instructed at Arraignment to Retain Private Counsel by Defendant Supplementary Resources ACES Defendant Supplementary Resources: Personal Bank Account Parental Employment or Bank Account Spousal Employment or Bank Account SUBTOTAL No Resources: Defendant Not Employed Defendant Employed SUBTOTAL Not Available TOTAL Income Eligible

Private Counsel Retention Rates N % 63 66.3 51 63.8 9 60.0 123 64.7 42 46 211 36 247

67.7 48.9 61.0 66.4

TOTAL N 95 80 15 190 62 94 346 47 393

% 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

The most surprising finding of the effort to explore defendants who were instructed to retain private counsel despite income eligibility for assigned counsel

-68is that the private counsel retention rates they show are virtually the same as those shown by instructed defendants who reported far higher incomes and did not qualify for assigned counsel.

-69-

V. SUMMARY OF FINDINGS New screening procedures were implemented in the Queens County Criminal Court in June 1993, to assess defendant eligibility for publicly funded representation. The goal was to provide information to the court to aid in the determination of eligibility based on the income, assets and dependency status of the defendant. This report describes the demographic and court-related characteristics of the research population (defendants arraigned during the first two months of the program) and addresses the issues of change in the patterns of assigning counsel at arraignment and of compliance with arraigning judges' orders to retain private counsel.

A. ELIGIBILITY FOR ASSIGNED COUNSEL Most defendants arraigned in Queens County Criminal Court reported relatively low incomes. More than eight of every ten Summary defendants (83%) for whom the ACES form was completed were rated income eligible for publicly funded counsel at the misdemeanor level and nine of every ten (91%) were income eligible at the felony level. The eligibility rate was similar among DAT defendants where 88 percent reported incomes that qualified for publicly funded counsel at the misdemeanor level. The eligibility ratings were also very similar for the baseline comparison group of Summary defendants. In all, few defendants were ineligible for assigned counsel.

B. INSTRUCTION TO RETAIN PRIVATE COUNSEL Implementation of ACES did not increase the volume or proportion of Summary defendants who were instructed to retain private counsel at arraignment (about 800 defendants, 16% of those whose cases were continued at arraignment during both research periods). The proportion of DAT defendants who were

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instructed rose somewhat, from 21 percent during the baseline period to 31 percent during the ACES implementation period. This was a large increase in private counsel assignment.

During both research periods, defendants who were not income eligible for assigned counsel were far more likely to be instructed to retain private counsel at arraignment than were those who were eligible for publicly funded defense services. This finding indicates that, even without formal screening for assigned counsel eligibility, the attorney-assignment decisions generally reflected defendants' economic status. However, the findings also show that the implementation of ACES served to strengthen the relationship between income eligibility and attorney assignment.

During the ACES-implementation period, the proportion of Summary defendants who were income eligible at the misdemeanor and felony levels who were instructed to retain was slightly lower (8%, versus 11%) and the proportion of ineligible defendants who were instructed to retain was substantially higher (68%, versus 52%) than during the baseline period.

The income-eligibility rating was more closely associated with the attorneyassignment decisions in Summary cases than in DAT cases. Only eight percent of baseline Summary defendants whose cases were continued at arraignment and who were income eligible for assigned counsel were nevertheless instructed to retain private representation, compared to 25 percent of similarly situated DAT defendants. Forty-two percent of Summary defendants who were instructed to retain private counsel were actually eligible for assigned counsel based on their own income compared to more than two-thirds of similar DAT defendants.

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C. COMPLIANCE Barely half of the defendants who were instructed to retain private counsel by the arraigning judge complied and returned to court for their second appearance with private representation. The baseline and ACES Summary defendants showed little difference in the proportions without private representation at arraignment who were instructed to retain private counsel and who, in fact, returned with a private attorney (50.0% during the baseline period and 46.5% during the ACES period).

Unlike the Summary defendants, DAT defendants who were instructed to retain private counsel by the arraigning judge were more likely to be represented by private counsel at the second appearance during the ACES (39.8%) than during the baseline (31.8%) period. However, most DAT defendants did not comply with the judicial instruction to retain private defense services.

Although the rate of instruction increased for Summary defendants who were deemed ineligible for assigned counsel, compliance rates decreased. More than half (53%) of the 152 baseline Summary defendants but only 47 percent of their 236 ACES-period counterparts who were ineligible for assigned counsel at either the felony or misdemeanor level and who were instructed to retain, returned to court for their second appearance with a private attorney.

It seems that the court instructed a greater volume of ACES defendants who were not eligible for assigned counsel to seek private defense services in accordance with the ACES income-eligibility charts but that, perhaps because the criteria were too stringent, a smaller proportion of the ineligible defendants who were instructed to retain were actually able to return to court with private counsel.

Half of ACES DAT defendants who were not eligible for assigned counsel and who were instructed to retain private counsel for the second appearance actually returned to court with private representation.

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Average weekly take-home pay was higher for ACES Summary and DAT defendants instructed to retain counsel who complied with the court's instruction than for those who did not comply but was not higher for baseline Summary defendants who retained private counsel as instructed.

D. RE-INSTRUCTION Re-instruction rates were higher for ACES-period Summary defendants who did not comply with the arraigning judges' initial instructions to retain than for their baseline period counterparts (24% versus 14%). Of course, the number of cases continued from appearance to appearance grew smaller and consequently, the number of defendants re-instructed to retain private counsel was small: 92 baseline defendants and 148 ACES defendants at the second appearance.

The DAT defendants in the ACES sample were no more likely to be reinstructed to retain at the second appearance (25%) than were DAT defendants in the baseline sample (27%). Again, the number of defendants who were reinstructed was very small (39 baseline and 27 ACES defendants).

E. PRIVATE COUNSEL RETENTION RATES Among both Summary and DAT defendants who were instructed at arraignment to retain private counsel for subsequent appearances, the ACES defendants were somewhat more likely to eventually retain private counsel (64.5% versus 61.5% among Summary defendants and 56.1% and 50.0% among DAT defendants).

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Among all defendants whose cases were adjourned at arraignment, baseline and ACES defendants were almost equally likely to have retained a private attorney for at least one appearance during the course of their prosecution in Criminal Court (25% of ACES defendants and 24% of baseline defendants). In fact, the proportion of Summary defendants whose cases were continued at arraignment who ever hired a private attorney were identical for the two research periods (23%). However, the proportion of defendants who ever retained private counsel was higher among DAT defendants whose cases were continued at arraignment during the ACES period (39%) than among otherwise comparable defendants arraigned during the baseline period (27%). The particularly high incidence of private representation among ACES-period DAT defendants did not appear to be entirely attributable to the implementation of ACES since the increase occurred both for defendants who were instructed at arraignment to retain private counsel as well as for defendants who were assigned publicly funded counsel.

F. LENGTH OF CASE The average number of appearances from arraignment to disposition in Criminal Court was about the same for the ACES and baseline periods (mean of 3.8 appearances, median of 3.0 appearances) for Summary defendants and for baseline DAT defendants and slightly lower for DAT defendants arraigned during the ACES period (mean of 3.6 and median of 3.0). However, the mean was somewhat higher for those who ever retained private counsel, regardless of instruction to retain, than for those who did not. Moreover, the mean for those who complied with an instruction to retain at arraignment was slightly higher than for those who did not comply with that instruction. Finally, these differences were somewhat greater during the ACES than the baseline period. These findings may reflect the greater tendency for judges in the ACES period to adjourn the case and re-instruct non-compliant Summary defendants to retain

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private counsel. Or, cases represented by private counsel may require more appearances to reach disposition in Criminal Court.

G. OTHER FACTORS ASSOCIATED WITH THE INSTRUCTION TO RETAIN PRIVATE COUNSEL Income-eligible defendants who were instructed to secure private representation were far more likely to report some supplementary financial resources than were their counterparts who were assigned counsel. More than half of the ACES Summary defendants and two-thirds of the DAT defendants who were instructed despite income eligibility for assigned counsel, had at least one source of supplementary resources, compared to roughly a quarter of income-eligible defendants who were not instructed. Yet almost half of the Summary and a third of the DAT defendants whose income qualified them for assigned counsel but who were instructed to retain private counsel reported no personal bank account and no parental or spousal employment or bank assets.

H. CONCLUSION Implementation of ACES did not increase the volume or proportion of Summary defendants who were instructed at arraignment to retain private counsel. The proportion of DAT defendants who were instructed rose somewhat.

The attorney assignment decision at arraignment appears to have been somewhat more appropriate with the additional ACES information: fewer Summary defendants who were income eligible for assigned counsel were instructed to retain while more defendants who were ineligible for assigned counsel were told to seek private counsel.

Compliance at the second appearance with the instruction to retain private representation did not increase, generally remaining under 50 percent.

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The proportion of instructed defendants who retained private counsel at any point during their prosecution in Criminal Court was slightly higher during the ACES-implementation period, perhaps reflecting the greater tendency for judges to reinstruct non-compliant ACES defendants.

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