November 9, 2016 (Fault Lines) — By the time you read this, it is likely (per FiveThirtyEight) that we will have our first female President. That is the seed for this post, even though it’s written in advance.
As the seed began to sprout, I remembered that my former law partner was part of a family of male lawyers that dated back to the 1880s in Nebraska. But, Ed, my partner, also had a sister by the name of Barbara.
She was older than Ed, and Barbara is now gone. Her father forbade the young woman from going to law school because, I assume, the practice law was not ladylike, but she went anyway. She became a criminal defense lawyer (CDL) in Texas. In fact, she was one of the first female lawyers to become board certified as a criminal defense lawyer by the Texas Board of Legal Specialization.
The foregoing then caused me to ask whether it makes a difference to a jury or sentencing judge whether the CDL is a man or a woman assuming everything else (nature of case, judge draw, jury composition, competency, experience, etc.,) is relatively equal? This question can be illustrated in a mathematical manner, although I cannot perform any of the computations.
Let me just show it in pictorial terms:
I did not want to answer the titular question based upon my own experiences. Frankly, I don’t trust them.
Rather, I sought out empirical information to determine whether CDL gender mattered at the trial level, ceteris paribus. Perhaps not surprisingly, I found almost nothing to answer my question. There is one 20-year-old empirical study that tangentially gets at the question using students as evaluators (see here), but none that I found worthy of serious consideration on the specific question I have posed. There are some old mock jury studies that I do not trust both because they are old and mock jury studies are notoriously inaccurate. There is one empirical study of the federal courts of appeal that shows that “in the average Courts of Appeals case, judges are generally more likely to side with female attorneys, even in the absence of a “women’s issue.” (Emphasis in original.)
So, I was without any convincing empirical help at the trial level. Thus, I am compelled to fall back on my five-plus years as a federal magistrate judge and my nearly 25 years as a federal district judge.
Holding everything else roughly equal*, I don’t think the gender of the CDL matters to juries or sentencing judges, at least at the federal level.** With that, let the fun begin!
Richard G. Kopf
Senior United States District Judge (Nebraska)
* I appreciate that we cannot hold everything else equal. But even treating this as a mere thought experiment is worthwhile for a number of reasons. For example, a criminal defense practice by the unique nature of the practice may be one of the few places in the legal profession where gender differences are non-existent or minimal when it comes to success. But, then again, consider the source. See, e.g., Richard G. Kopf, On being a dirty old man and how young women lawyers dress, Hercules and the umpire, (March 25, 2014).
** Relatedly, while I am not sure that I trust it, there is research showing that whether you hire your own CDL or whether you have one appointed for you makes no or very little difference. See Richard D. Hartley, Holly Ventura Miller, and Cassia Spohn, Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Vol. 38 Journal of Criminal Justice 1063–1070 (2010).