Criminal Justice

Private criminal defense lawyers failed to show up for their cases more often than defendants, Philly study finds

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Some lawyers are less reliable than defendants when it comes to showing up in court, according to a study of criminal cases in Philadelphia courts during a 10-year span. Image from Shutterstock.

Some lawyers are less reliable than defendants when it comes to showing up in court, according to a study of criminal cases in Philadelphia courts during a 10-year span.

Privately retained or court-appointed private lawyers failed to appear in court at least once in 36% of their cases, according to an article on the study, Systemic Failure to Appear in Court, in the University of Pennsylvania Law Review.

Most people who didn’t show up at criminal court hearings were not the defendants, the authors wrote in a Dec. 1 op-ed for the Philadelphia Inquirer. Their study looked at cases filed after January 2010 and resolved before March 2020, using data from Philadelphia courts and the district attorney’s office.

“Over that decade,” they wrote in the Philadelphia Inquirer, “an essential police officer, civilian witness or lawyer failed to appear for at least one hearing in 53% of all cases. While defendants missed their court dates in only 19% of cases, police officers failed to appear in 31% of cases for which they were subpoenaed.”

The numbers are worse for victims and other witnesses. Victims failed to appear at least once in 47% of victim-involved cases, while other civilian witnesses failed to appear in 46% of cases. In domestic violence cases, the failure-to-appear rate was 70%.

Failure to appear by police officers or civilian witnesses may have led to dropped charges in 32,000 cases in Philadelphia during the decade, according to the authors’ calculations.

The study authors are Sandra G. Mayson, a professor at the University of Pennsylvania Carey Law School; Aurelie Ouss, a criminology professor at the University of Pennsylvania; Megan T. Stevenson, a professor at the University of Virginia School of Law; and Lindsay Graef, a criminology doctoral candidate at the University of Pennsylvania.

Is Philadelphia worse or better than other jurisdictions? Mayson says the researchers couldn’t answer that question definitively, but based on the anecdotal experience of people in other criminal court systems, “we don’t think it’s likely that Philadelphia is an extreme outlier.”

Mayson told the ABA Journal that the statistics don’t show the reason for failures to appear, but interviews with court participants—including police officers, prosecutors, defense attorneys, judges and victim-witness coordinators—offered some insights.

“For private lawyers, speaking generally, I think scheduling can be a challenge,” Mayson says. “Lawyers often have to be at several places at the same time,” including in different courthouses in different jurisdictions.

The failure-to-appear rate was negligible for public defenders and prosecutors, but they are usually in the same courthouse and can cover for one another.

The authors also heard that some private defense lawyers “fail to appear strategically,” Mayson says. Some have suggested that a failure to appear can lead to a continuance or could spur payment of legal bills, “but I can’t confirm that myself,” she says.

Like lawyers, police officers also miss hearings because of “some real scheduling and logistical problems,” she says. There could be other factors, as well.

The study found that officers’ failure to appear was highest for low-level, officer-initiated charges, such as drug and DUI offenses. Some officers may fail to appear if they see a case as less important, or they expect to be challenged on the legality of a stop or search, the study said.

And at least in some cases, officers don’t appear because their intent is to jail someone for a few days, rather than secure a formal conviction, according to the law review article, which dubs the practice “process is the punishment.”

“We do believe it is true that some officers occasionally intentionally skip court,” Mayson says. “But it’s also the case that a lot of officers who failed to appear are not willfully skipping court for nefarious reasons. They are doing the best they can, but there are are broader systemic organizational problems.”

Different reasons are at play when witnesses fail to appear. People don’t know when and where to show up, they may have trouble finding transportation or child care, and they may find it difficult to take time off work.

“And then people just get fed up with the process that drags on, and they have to keep coming back to court,” Mayson says.

Intimidation may be a problem, she acknowledges. And some victims may stay home because the ordeal of a court appearance isn’t worth the expected benefit or because they don’t want the defendant convicted, the law review article said.

So how can courts lower the failure-to-appear rate?

“There is no one silver bullet, but there are a lot of things that could help,” Mayson says.

One possible fix is addressed in the op-ed.

“Dentists’ offices manage to schedule appointments at specific times and provide effective notice through email and text messaging. Our criminal court system should be able to do the same,” the article said.

Mayson says the technology infrastructure for the Philadelphia courts and the district attorney’s office is fairly outdated, and an upgrade may be able to solve some organizational challenges. And currently, the district attorney’s office doesn’t have a way to check schedules for state police officers, who make a lot of DUI arrests.

Some have suggested that domestic violence victims could be better supported by sending social workers with police to domestic violence calls or to make visits afterward. The social workers could put victims in contact with prosecutors and support them through the process.

Another issue is that court schedules are often based on judges’ needs, rather than prioritizing civilians, the study authors heard. One possibility is a splitting up a docket into time slots, perhaps two hours long, in which case participants would have to be there. That could eliminate long waits in court.

“It’s so complicated, there are so many issues” regarding failure to appear, Mayson says. “There should be a lot of different targeted responses.”

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