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February 2, 2022
"Gender Favoritism Among Criminal Prosecutors"
The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:
Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.
February 2, 2022 at 09:31 AM | Permalink
Comments
Anyone aware of any data on most prominent personality types of career prosecutors?
Posted by: Mike | Feb 2, 2022 12:09:39 PM
Mike --
I think it's the type who like long hours for modest pay, while dealing pretty much continuously with opposing attorneys less than fully devoted to disclosing the unvarnished truth.
Posted by: Bill Otis | Feb 5, 2022 2:19:17 AM
In response to the above comments by Mr. Otis, when will prosecutors (and others) keep in mind that defense attorneys' primary duty is to vigorously and tirelessly advocate for their clients, and that defense attorneys hold no duty to seek or disclose "the unvarnished truth"?
Of course in contrast, while the duty of prosecuting attorneys IS to seek the truth, I sense that Mr. Otis believes that this system, in its present iteration, is inherently unfair and is in need of correction. If one does not like the system as it has been functioning for the past 246 years, one has the right and freedom (protected by the 1st Amendment) to advocate for change just as loud and as long as one so desires.
I know of several defense attorneys who would advocate on behalf of those who hold unpopular (and often wrong-headed) views. These attorneys would vigorously present your position, Mr. Otis (irrespective of their own personally held beliefs). They would do so as that is their job. And as long as the attorney does not suborn perjury or knowingly provide false information to the court, you would gladly pay them for their services.
Cmon Bill. This is Criminal Justice 101.
Posted by: 4 the Defense | Feb 6, 2022 5:45:27 PM
4 the Defense --
I appreciate the fact that you did not contradict or purport to contradict anything that I said, to wit, that defense attorneys are "less than fully devoted to disclosing the unvarnished truth." And thank you too for directly, and correctly, implying that they will engage in intentionally misleading and deceptive practices, so long as they tiptoe around "suborn[ing] perjury or knowingly provid[ing] false information to the court." Gosh, now there's a proud standard of truthfulness!
Is that what you teach your kid? That he can be as tricky as he can get away with as long as avoids directly lying? I don't know any parent who teaches that, but maybe you do.
Do you think there's a reason lawyers are held in such low esteem by the public? https://news.gallup.com/poll/388649/military-brass-judges-among-professions-new-image-lows.aspx
As for the 101 course, I teach at Georgetown Law after graduating from Stanford. You?
Posted by: Bill Otis | Feb 6, 2022 8:55:32 PM
4 the Defense --
Your admonition to me that private attorneys' "primary duty is to vigorously and tirelessly advocate for their clients" put me in mind of a story from just last week that might be thought to shed some light on this subject. I apologize for neglecting to mention it earlier. Here is is, from MSNBC:
https://www.cnbc.com/2022/02/04/verdict-reached-in-michael-avenatti-fraud-trial-over-stormy-daniels-book-money.html
A few excerpts:
A New York jury convicted disgraced celebrity lawyer Michael Avenatti of swindling his former client, porn star Stormy Daniels out of money she was owed for a book.
The guilty verdict is the second conviction for Avenatti in Manhattan federal court. He was previously convicted at a separate trial of an extortion scheme against athletic apparel giant Nike.
Avenatti before his downfall had been a leading critic of former President Donald Trump.
Posted by: Bill Otis | Feb 6, 2022 10:32:39 PM
To Bill Otis,
Bill, I appreciate the fact that you did not contradict or purport to contradict anything that I said, to wit, that defense attorneys are "less than fully devoted to disclosing the unvarnished truth."
Seems that you missed the point. Obligations and duties of prosecutors and defense attorneys are NOT THE SAME. Get it? (Crim. Jus. 101). Irrespective of your emotions, this is the system that we have. You may howl at the moon all night about it, but it won't change the basic premise of our criminal justice system. (I'm sure you teach this to your students,right?).
As to Avenatti, seems he's about as solid a citizen as Rudy Giuliani, and the rest of the Trump "lawyers" (some I understand to be former AUSA's, etc). Didn't they all pretty much present false and misleading information to 60 courts about imagined voter fraud? Aren't they knowingly and intentionally attempting to mislead the courts on behalf of Dear Leader? The Courts evidently believed their arguments to be false and misleading, and many said so in their rulings. Any comments about that?
Posted by: SG | Feb 7, 2022 5:07:15 PM
5G --
"Obligations and duties of prosecutors and defense attorneys are NOT THE SAME. Get it? (Crim. Jus. 101). Irrespective of your emotions, this is the system that we have."
So you're OK with the following argument, yes?: "The Constitution expressly contemplates the death penalty. Get it? (Crim. Jus. 101). Irrespective of your emotions, the death penalty is the system that we have."
Ummmmmmm, did you forget that it's OK to disagree with "the system that we have"? Or maybe you don't care for dissent, is that it? Or maybe you think that it's fine when so much of the public is skeptical of the legal profession precisely because of its reputation for sleaze. Are you? Do you think a degree of greater respect for candor might improve both the practice of law and how the public sees that practice?
"(I'm sure you teach this to your students,right?)."
Pay the tuition, sign up for the class, and find out for yourself.
As for Trump and his lawyers -- Hey, nice pivot from your hero Avenatti. But pivoting is what you guys do! I confess it's amusing, though, to see all the urgency with which you tell us in the first part of your comment that a little sleaze and a less than robust devotion to the truth "is the system that we have," and then, in the next paragraph, get all huffy that Trump's lawyers believe the same thing you do.
Posted by: Bill Otis | Feb 7, 2022 6:15:00 PM
Well look who's pivoting now!!! Bill Otis - clumsily dodging the issue and trying to get me to go for the rotting bait about capital punishment and Avenatti (not the issues at all, Bill).
And you have no idea what my position is on capital punishment because I've never uttered (or typed) a single word about it.
And then you try (again, quite clumsily) to put words in my mouth (which I never said) about dissent, sleaze, etc. (Your operatic characterizations are not endorsed by this author).
I know how much you DESPISE it when folks assign words to you which you never uttered (or typed) in these quaint little back and forths. I seem to recall that you go quite apoplectic when that occurs. If you take a deep breath, hold on to your stomach, and re-read what I had originally posted, you will note that I had specifically mentioned that quite a few defense attorneys who would vigorously advocate on your behalf IN DISSENT OF THE SYSTEM (your position, evidently - I don't want to put words in your mouth), irrespective of their own personal beliefs, as that is the function and duty of an advocate representing a client. (Crim Jus. 101). (I can't afford Stanford or Georgetown, so I'll just have to remain without an education).
Ok. Go ahead. Pivot.
Posted by: SG | Feb 7, 2022 11:17:46 PM
5G
You're just here to stick your tongue out. Not really of interest to me; there are plenty of people I can talk to here who are more polite and more serious. But I'll try one more time, anyway.
"Well look who's pivoting now!!! Bill Otis - clumsily dodging the issue and trying to get me to go for the rotting bait about capital punishment and Avenatti (not the issues at all, Bill)."
But Trump's lawyers are? The ones you brought up out of thin air? Hello??
"I know how much you DESPISE it when folks assign words to you which you never uttered (or typed) in these quaint little back and forths. I seem to recall that you go quite apoplectic when that occurs."
I might ask you to give this kind of looking-down-your-nose tone a rest, if I thought it would do any good. Would it? But now that you mention it, I dislike it when people misrepresent my position, you bet. Should I be fond of it?
Your response to my pointing out that defense lawyers have a less-than-robust devotion to telling the unvarnished truth was not to deny it, even a small bit, but to lecture me that -- in your exact words -- "this is the system we have." Do you really not understand why that answer is so empty? The "system we have" includes the death penalty, use of acquitted conduct at sentencing, extensive use of plea bargains, qualified immunity and on and on. If, when these things get criticized, as they have been dozens if not hundreds of time on this blog, I were to answer by saying, "This is the system we have," I would (correctly and loudly) be ridiculed as dumb as a rock. The whole notion of debate about legal reform PRESUPPOSES that "the system we have" isn't as good as it could be and can be improved. Just to say, "It's the system we have" is at best blind and more likely willfully obtuse.
The public doesn't trust lawyers and sees them as slick and slippery. Perhaps the public's perception of lawyers, and lawyering itself, could be improved if there were at least a modest adjustment in legal ethics away from client-uber-alles and toward truth-telling. This prospect is worth more than the gosh-Bill-why-don't-you-know-better dismissal you give it.
"I can't afford Stanford or Georgetown, so I'll just have to remain without an education."
....or instead of being cute and smarmy, you could just tell us what your education and experience are. And your name, for that matter. Doug Berman does, because he takes responsibility for what he says and how he says it. I do as well, for the same reasons. Perhaps it would be best if you did too.
Posted by: Bill Otis | Feb 8, 2022 12:07:23 AM
And so Mr. Otis, your solution is what?
Would you prefer that defense attorneys stand before the jury and state that their client is guilty? Admit to facts that will result in a conviction? Please, Mr. Otis, I'm serious. This is not meant to be "smarmy". I am humbly requesting for a real-world illustration as to how the ideal "ethical defense attorney" (dedicated to putting the truth above the interest of their client) would then advocate before a jury? "Yes, my client shot and killed the victim. I won't lie about it. After all, I don't want you fine jurors to think that we defense attorneys are sleazy or deceitful".
Or is the solution to be defense attorneys foregoing trials and pleading their clients guilty early on in the proceedings? We should not make the government prove their case? Is the image of the profession more important than due process and/or a vigourous defense?
Please believe me when I say that I am seriously interested in how you see this playing out in the real world.
And by the way, the vast majority of defense attorneys with whom I have worked were ethical, honorable and professional, and in no way would they have ever been slandered as "sleazy".
Moreover, I have been involved in numerous cases (mostly in federal criminal prosecutions, but also in State cases as well) in which the prosecutor knowningly committed Brady violations; hid/sat on police reports, forensic analysis and expert's conclusions adverse to the prosecutor's case; refused to test evidence at the request of the defense; regularly overcharged the defendant with the intent of forcing deft. to plea in spite of either known factual innocence or at minimum not guilty of the charges filed against them; offered plea bargains to defendants while sitting on exculpatory evidence, or admissions of guilt by co-deft's. exculpating the deft., and that if disclosed prior to the plea, would have caused the case either to be dismissed or the defendant's refusal
of the plea and subsequent decision to go to trial.
I'm sure you are familiar with all the "sleazy" things that prosecutors have done over the years. (I have not even mentioned the racially based motivations of some prosecutors and/or supervisors). So please don't look down your nose and pretend that this "sleaziness" exclusively exists in the souls of defense attorneys. That would be wholly unfair, and perhaps even a bit sleazy.
As to "smarminess", would you not call the following posts "smarmy", Bill?
From Bill Otis:
"Gosh, now there's a proud standard of truthfulness!"
And: "Is that what you teach your kid? That he can be as tricky as he can get away with as long as avoids directly lying? I don't know any parent who teaches that, but maybe you do".
And finally:
"...there are plenty of people I can talk to here who are more polite and more serious. But I'll try one more time, anyway."
Would you not characterize such comments as "smarmy", Bill?
Posted by: SG | Feb 8, 2022 3:45:58 AM
5G --
OK, you're a die-hard criminal defense attorney. You make that clear. But you still withhold your name, education and much of your background. To what purpose? I'm not hiding. Doug's not hiding. What other than staying behind the screen does it gain you?
And why are you so furious that I should speak up for truthfulness? Is it that bad?
"Or is the solution to be defense attorneys foregoing trials and pleading their clients guilty early on in the proceedings?"
That is in fact the solution over 90% of defense attorneys choose, precisely because they view it as serving the interests of their client (a view that overwhelmingly turns out to be correct because the client would be toast at trial). Sometimes the plea is earlier in the proceedings and sometimes later, but that is the route defense counsel almost always take.
I am not responsible for this and it is not my choice. To the contrary, I have publicly criticized the frequency with which cases are resolved by pleas rather than trials, https://www.youtube.com/watch?v=3i92-ojQ8to. Have you? And have you encouraged clients to negotiate pleas rather than put the government to its proof? If you have not, you're the first defense lawyer I ever met who didn't.
"We should not make the government prove their case?"
The defense bar should do that more often than it does, IMHO. But I don't make their choices for them.
"Is the image of the profession more important than due process and/or a vigourous defense?"
The public's perception of something as powerful as the legal profession is quite important. And I have absolutely nothing against a VIGOROUS defense (say, for Kyle Rittenhouse for one example, or for the officers falsely accused by the corrupt prosecutor Marilyn Mosby, for another, or for the fraternity men maliciously indicted in the Duke rape hoax by a political hack of a prosecutor, Mike Nifong). But I have plenty against a DECEITFUL defense, whether or not the deceit is undertaken with direct lies or more subtly. In each of the instances I've just pointed to, it was precisely the truth that set the defendants free. But my point is that the legal profession should do more to promote truthfulness regardless of whose ox gets gored, because truthfulness is more important than whether A or B wins the case.
"I'm sure you are familiar with all the "sleazy" things that prosecutors have done over the years. (I have not even mentioned the racially based motivations of some prosecutors and/or supervisors). So please don't look down your nose and pretend that this "sleaziness" exclusively exists in the souls of defense attorneys."
Glad you brought up race. (1) What race are most murder victims? Very good -- black people. (2) Who has the better claim on public approbation, the people who defend their killers or the people who want the killers held accountable? (3) In Georgia v. McCollum, 505 U.S. 42 (1992), was it the prosecutor or the defense that urged the Court to approve racist jury strikes in the name of a "zealous defense"? Are you proud of the defense's stance in that case? If not, why not?
Your steaming dislike -- and I'm using gentle wording here -- of prosecutors or people (like me) who used to be prosecutors boils up through your posts. Their sins, real and otherwise, outrage you. If your clients' activities bother you at all, you don't say so. Maybe they don't. One way or the other, your tone is as often belligerent and rude as it is smarmy (although that too). But there is one question I asked that you oddly label "smarmy" that I'm going to repeat, because it's very important to question of truthfulness and the role of truthfulness in the legal profession that lies at the heart of our differences:
Is engaging in intentionally misleading and deceptive practice (as long as it's not directly soliciting falsehoods or knowingly providing false information) the standard of acceptable honesty you teach your kid? Because if it's not -- and I strongly suspect it isn't -- I would ask you to consider whether it's wholesome for society to accept in one of its most important professions a standard of truthfulness it would not accept in a ten year-old.
Posted by: Bill Otis | Feb 8, 2022 5:22:31 AM
So far you have specifically characterized me as being"furious", that I have a "steaming dislike" of the opposition in legal disputes, that I am "outraged" by prosecutorial misconduct (ok, admittedly I am outraged when that is done intentionally), that I am "belligerent" and "rude", and of course your seemingly personal favorite "smarmy". Oh, and that I respond to you as a form of "sticking my tongue out" at you. That was a good one.
Mr. Otis, I know you are a well-educated professional, and are likely familiar with common psychological phenomenons. One such phenomenon is "projection". I will not be condescending nor rude by providing a definition as I am sure you understand the term.
As to the argument regarding the inherently separate and discrete functions of prosecution and defense in criminal litigations, it seems your argument boils down to "defense attorneys should plead their clients out to the charges earlier and more often". The end. I see you offer no other reasonable solutions, nor accurate illustrations of your perceieved problem(s). I say this respectfully and sincerely.
Your critique of the system, from what you have posted up to now, does not appear to have much substance. The "sleaze" and the avoidance of "the truth" to which you refer occurs on both sides of the aisle, with equal frequency, with equal moral repugnancy, and has been occurring historically for over two centuries.
By pointing your finger exclusively at the defense bar, you illustrate, in my belligerent and rude opinion, your overt bias, "fury" and "steaming dislike" of defense attorneys. I would give your argument a bit more credence if you would include those with whom you seem to share a common bond, culture and identification. Wouldn't you agree? (I ask this knowing that you are admittedly not one who, by nature, would agree with others who present opposing views. And I sincerly hope that this response is not too rude or belligerent for your sensibilities). (I would have said 'delicate sensibilities' but you have now trained me not to be rude, belligerent, condescending or smarmy. Thank you for that).
Posted by: SG | Feb 9, 2022 5:40:59 PM
