AI and the Law: What’s possible for public defense
From the July – August 2024 Criminal Defense Newsletter
I’m an AI evangelist.
That doesn’t always make me friends in the legal community.
Typically, when I start to talk to other lawyers about using AI in my work, I get one of two responses:
(1) people’s eyes begin to gloss over as if I’m giving them a step-by-step guide to watching paint dry; or
(2) I see the fear in their eyes as their mind wanders back to the various plots of the Terminator movies (did you know there are six of those movies outlining the disastrous ways that AI could bring humanity to its end?).
Despite the skepticism, I hope to spread my excitement about the possibilities that come with AI to public defenders and other lawyers representing indigent clients. The technology has the potential to level the playing field for those without the resources of the government and big corporations.
The reasons why the rapid developments in AI have me feeling optimistic about how this technology will positively impact the field of public defense work are many.
Here are my top five reasons why I’m all in on AI for public defense:
#1: The ability to analyze data to make legal arguments
Indigent defendants are disproportionately affected by systemic issues within the criminal justice system. People who come from historically disadvantaged communities are more likely to receive harsher sentences, less favorable plea deals, and be subject to pretrial detention.
Systemic issues such as racial bias and socioeconomic disparities result in the uneven application of laws to poor people and people of color, leading to a cycle of disadvantage that is difficult to break.
One of the most effective ways to fight back against these disparities is to tell a clear story of the systemic issues using data.
A clear example of how data can be used to achieve justice in cases where systemic issues are in play is the United States Supreme Court’s decision in the Curtis Flowers case.1
Curtis Flowers is a Black man who was tried six times for the 1996 murders of four people in a furniture store in Winona, Mississippi. His sixth trial resulted in a conviction and a death sentence.2
Flowers’ appellate attorneys argued that his conviction should be overturned based on prosecutorial misconduct that included the systematic exclusion of African American jurors.
The data that was gathered by Flowers’ team showed that the prosecutor, Doug Evans, struck 41 of 42 Black potential jurors over the course of six trials. His lawyers also conducted a comparative juror analysis that highlighted specific instances where Black jurors were struck for reasons that were not equally applied to white jurors.
Even more persuasive than the statistics from Flowers’ individual case, however, was the data gathered by his lawyers about the history of Evans’ disproportionate exclusion of Black jurors over the course of his entire career. The data from the prior cases showed that Evans struck Black potential jurors at a much higher rate than white potential jurors.
In overturning Flowers’ conviction, the Supreme Court recognized the broader pattern of Evans’ racial discrimination in finding that the exclusion of Black jurors was a violation of his constitutional rights. The additional data presented by Flowers’ attorneys about the long-term nature of Evans’ discriminatory practices may have made the difference between Flowers’ freedom and a death sentence.
There are so many circumstances in the representation of indigent clients where the ability to quickly gather and analyze data could produce fairer results. The problem for most public defenders and assigned counsel has historically been that they lack the resources to conduct extensive data collection and analysis.
Most jurisdictions do not maintain comprehensive, easily accessible records of case outcomes, making it difficult to establish patterns of bias or inequality. Without solid data, it becomes nearly impossible to advocate for meaningful reforms or to hold the system accountable.
This lack of transparency and data-driven advocacy perpetuates the cycle of disadvantage for indigent defendants as systemic problems remain unaddressed and continue to undermine the fairness of the criminal justice system.
AI has the potential to revolutionize the collection and analysis of data for public defenders by automating and streamlining processes that were previously time-consuming and complex.
Advanced AI algorithms can quickly sift through vast amounts of data from court records, police reports, and case files, identifying patterns and correlations that might be missed by human analysis. Natural language processing tools can analyze legal documents and extract relevant information, while machine learning models can predict outcomes based on historical data, helping public defenders identify systemic biases and disparities.
AI-powered analytics platforms can generate comprehensive reports and visualizations, making it easier for public defenders to present evidence of systemic problems to courts and decisionmakers.
Imagine that for an individual client’s case, you could collect and analyze data on sentencing outcomes based on race, identify patterns of racial disparities in sentencing, and present that data in a sentencing memo to advocate for a more equitable sentence for your client. And imagine that instead of taking months, it took you a couple hours.
AI makes it possible
Imagine that in filing a motion to suppress, you were able to quickly analyze arrest data to show that there is a disparity in arrest rates based on racial, gender, or socioeconomic factors.
AI makes it possible
Imagine that while waiting for the judge to take the bench, you’re able to track data on pretrial detention rates and durations so that you can advocate for fairer pretrial release practices that should be applied to your current client.
AI makes it possible
With AI, we’ll be able to track data for things like sentencing outcomes, arrests, pretrial release statistics, quality of outcomes based on representation factors, plea bargains, conviction rates, police practices, post-release outcomes, program effectiveness for rehabilitation and support programs, recidivism rates, resource allocation, and impact of legal reforms.
Being armed with that knowledge will allow public defenders to make compelling cases for systemic changes that promote fairness and equity in the justice system for indigent defendants.
#2: Providing the freedom to develop stronger and healthier client relationships
The thing that is so special about public defenders is the humanity that they bring to their work.
At the end of the day, the differences that I’ve made in the lives of my clients have been based on the relationships that I’ve built with them. The things they thank me for aren’t writing the most compelling brief or finding the right case in my legal research. They thank me for listening. They thank me for caring. They thank me for being there for them during one of the most difficult times in their lives.
There’s nothing more important to effective representation than building a strong attorney-client relationship. When public defenders have the time to establish trust and open communication with their clients, they gain deeper insights into the case and the client’s circumstances.
When attorneys gain this understanding, it allows them to craft more personalized and compelling defenses. Clients who feel heard and understood are more likely to participate actively in their defense. A good relationship helps clients feel more supported and less anxious about the process, which can improve their overall outcomes.
The challenge that many public defenders face currently is the inability to form the strong client relationships that are needed simply due to lack of time. Their days are often filled with drafting documents, sending emails, completing forms, and scheduling rather than visiting their clients.
Public defenders can leverage AI to automate routine and administrative tasks, freeing up valuable time to put their focus toward the human side of their practice – on building better relationships with their clients.
AI tools can handle document management, scheduling, form completion, and document drafting. The tools can cut down on time spent doing legal research, drafting, and processing of discovery.
The ability to offload many of those tasks to AI tools, or to cut down on time spent doing routine tasks, gives public defenders an opportunity to shift more of their time to client contact. This results in a more positive experience for both client and attorney and better outcomes in and out of court.
#3: Dealing with increasing amounts of discovery more efficiently
Over the past couple of decades, the amount of discovery that public defenders have been required to sift through in each case has increased significantly. With the rise of smartphones, social media, and other digital platforms, vast amounts of data have suddenly become relevant and available in criminal cases.
This includes text messages, emails, social media posts, GPS data, and video footage, all of which must be reviewed and analyzed. Advances in forensic science and the increased use of body cameras and dash cams by law enforcement have also contributed to the growing volume of evidence.
The increase in discovery has had a substantial impact on the workload of public defenders. Already dealing with high caseloads, public defenders now face the added burden of reviewing and analyzing mountains of evidence, often without corresponding increases in resources or staff.
This can lead to burnout, mistakes, and less time to dedicate to each case, ultimately compromising the quality of defense provided to indigent defendants, through no fault of the public defender. The sheer volume of discovery can make it challenging to identify the key pieces of evidence and to build a comprehensive defense strategy, putting public defenders and their clients at a disadvantage.
One of the most exciting promises of AI is in its ability to automate the review and analysis of large datasets such as those we see in discovery disclosures from the government.
Imagine being able to load your discovery into an AI tool that could quickly identify relevant information and patterns within the evidence.
Natural language processing algorithms can sift through documents to find crucial keywords or phrases in a matter of seconds. Machine learning models can analyze video footage to highlight important events or behaviors in no time flat.
In my use of AI to process discovery, tasks that would have previously taken me days to complete have been reduced to hours. Tasks that would have taken hours are reduced to minutes – or even seconds.
From free tools like ChatGPT3 or Claude4 to paid tools such as Clearbrief,5 Relativity,6 Everlaw,7 or Logikcull,8 the technology is already available to make review and analysis of discovery faster and to help us better integrate the available information into our client’s defense.
#4: Gaining an upper hand on our opponents
Prosecutors have historically had more resources at their disposal than public defenders. They have an army of police officers to investigate their case, they have dozens of expert witnesses at their fingertips, and state and federal agencies respond to their calls to jump with “how high?”
In speaking with a colleague about AI and public defense recently, he expressed some fears to me about it being adopted by lawyers in this field.
I also expressed some fear.
But here’s my fear:
What if public defenders wait to adopt AI into their practices, while prosecutors move forward with learning how to harness this technology to gain convictions more easily?
My hope is rather that public defenders will take the lead in adopting the use of AI so that they can be on the cutting edge in using this technology to the advantage of their clients. Leading in the use of AI rather than following will ensure that public defenders can use the technology to level the playing field and achieve more fairness in our system.
Imagine being able to use an AI tool to analyze a prosecutor’s case history to identify their weaknesses and predict their strategies.
AI makes it possible
Imagine having a tool to analyze juror data to identify how to use your challenges.
AI makes it possible
Imagine being able to knock out a killer response to a prosecutor’s brief in a tenth the time it took them to write theirs.
AI makes it possible
If public defenders work to adopt AI now, they’ll leave prosecutors in the dust and have a secret weapon that will take away the prosecutor’s advantage.
#5: Reducing the workload on overworked and underpaid public defenders
Public defenders face immense pressures in their work. Many struggle to balance work with their personal lives, resulting in stress and burnout.
There is tremendous possibility in the use of AI in public defense work, with an opportunity to alleviate a great deal of that pressure by reducing the workload and stress that is currently placed on public defenders.
However, it is important for us to keep in mind that while AI carries that potential, it is crucial to ensure that this newfound capacity does not simply lead to an increase in their overall workload.
Trevor Noah recently appeared on Possible, a podcast where he discussed the use of AI in the entertainment world. He says about AI:
“I think one of the most important discussions we should be having is around people, purpose, and the plans around what we are going to do when these technologies evolve, as opposed to thinking of the technologies as some sort of boogeyman, because the technology isn’t.”
There must be an intentional discussion in the world of public defense about how to best take advantage of the efficiencies that AI can provide. Instead of burdening public defenders with more cases or additional responsibilities, the reduction in workload should be leveraged to improve the quality of defense they provide, allowing them more time to focus on strategic planning, client interaction, and professional development.
Thoughtful public policies and management practices must prioritize the well-being of public defenders, ensuring that AI serves as a tool to enhance work-life balance and effectiveness rather than a means to perpetuate overwork and burnout.
It is essential to address the broader systemic issues that contribute to the high caseloads and stress levels of public defenders. Public policies should aim to improve the overall funding and support for public defense services, ensuring that public defenders have the necessary human and technological resources to manage their caseloads effectively. By reducing the systemic pressures on public defenders, AI can be more effectively integrated as a tool for enhancing efficiency and effectiveness rather than merely compensating for broader deficiencies in the system.
By getting public policy right, we can transform AI from a potential boogeyman into a valuable ally for public defenders.
A future full of possibilities
Here’s to a future where AI and public defenders join forces to create a more efficient, fair, and accessible justice system. It’s a partnership that promises to bring a little more balance to the scales of justice.
In the end, AI isn’t just a tool; it’s a game-changer. It’s here to reduce your workload, make justice more accessible, and give public defenders the edge they deserve. So, let’s embrace this brave new world with open arms. Because if there’s one thing public defenders know, it’s how to fight the good fight – and now, they’ve got a powerful new ally in their corner.
Keeley D. Blanchard
Keeley Blanchard is an attorney, trial consultant and trial skills trainer. A former criminal defense and civil rights lawyer with Blanchard Law, Keeley now assists other lawyers in preparing their cases for trial through her company, LawStory. She is also the Project Manager for the MIDC Trial Skills Simulation Program, providing free training to public defenders and assigned counsel across Michigan through a Byrne-JAG grant. You can find out more by visiting her website, https://winningstory.law/ or subscribing to her newsletter here.
Endnotes:
1. Flowers v Mississippi, 588 US 284 (2019).
2. For a detailed history behind the scenes of Flowers’ case, check out Season 2 of The New Yorker’s In the Dark podcast. https://features.apmreports.org/in-the-dark/season-two/ (accessed July 24, 2024)
3. https://chatgpt.com (accessed July 24, 2024)
4. https://claude.ai (accessed July 24, 2024)
5. https://clearbrief.com (accessed July 24, 2024)
6. https://www.relativity.com (accessed July 24, 2024)
7. https://www.everlaw.com (accessed July 24, 2024)
8. https://www.logikcull.com (accessed July 24, 2024)
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