Mo' Money, Mo' Money
Cuyahoga County attorneys got good news the other day: the maximum fees they were allowed to receive for appointed criminal cases had been raised. Someone assigned to a drug possession case will get a maximum of $500, up from the current $400. And if you're lucky enough to spend a couple weeks in trial on a nasty rape case, take solace from the fact that your compensation will no longer be a meager $900, but an even grand. Guess you can have the operation now, huh?
The good news is somewhat tempered by the fact that the "raise" merely restored compensation levels to what they were five years ago, when the recession forced the County Commissioners to cut maximums by $50, then another $50. In fact, the compensation levels were "restored" to what they were when they'd been set back in the 1970's. With the cut/raise, defense attorneys in this county have seen their compensation increase exactly 0% in the past thirty years, while the minimum wage has increased 123% during the same time period. Reference to the minimum wage is appropriate; I've had several cases where my actual hourly compensation has worked out to slightly less than what the fry guy at McDonald's makes, and I don't even get to wear the cool paper hat.
A few weeks back I mentioned the case of State of Titsworth, in the context of the question of whether policemen can give expert testimony as to the identity of a drug. Titsworth is interesting for another reason, though. It contains perhaps the single most novel argument I've ever seen for an ineffective assistance of counsel claim:
Defendant argues that he was prejudiced when his trial counsel was not fairly compensated for his time. Specifically, defendant claims that the fee schedule established by Cuyahoga County does not allow any appointed defense attorney to dedicate sufficient time to the defense of any client, including himself.
The court of appeals mulled this over, decided Titsworth was right, and ordered the County Commissioners not only to raise appointed counsel fees, but to provide each attorney with an expense account and private car.
But Titsworth was onto something. Over in Virginia, the bar association and the National Association of Criminal Defense Lawyers are preparing a lawsuit over the state's indigent defense system, which actually is more generous than Cuyahoga County's: lawyers there get $90 an hour. The subject of the grievance, though, is the caps on the system: $1,235 for major felony cases (involving maximum imprisonment over 20 years), and $445 for all other felonies. Back in 2000, New York lawyers actually sued the state, successfully, to increase the appointed counsel fees, which had remained stagnant since the mid-80's.
I've done some research on this, and it appears that the real deciding factor is not the hourly rate, but the caps, the theory being that once the lawyer hits the cap, his decision-making -- like, say, whether to go to trial -- is going to be affected by the fact that he's now doing it for free. We'd all like to think that we're immune to that, but if you've defending someone who's charged with drug possession, and you know he's going to get probation on a plea, it's not too difficult to start selling that as a viable alternative to spending three days in trial for nothing.
The problem there is that Cuyahoga doesn't have a "rigid" cap, again, at least in theory: Local Rule Part II, 33(B) permits counsel to apply for additional fees in "extraordinary" cases. That's what the court used in Titsworth to shoot down the defense argument: additional compensation was available, it's just that trial counsel hadn't applied it. To be sure, this is sort of like saying that the reason I haven't been made a saint is that I've been tardy in getting the paperwork into the Vatican. The wording of the provision, coupled with the mechanism for its execution (it requires the approval of the trial judge, the administrative judge, and one other judge), indicates that nobody should count on funding their retirement plan with what they get for "extraordinary" fees.
Unfortunately, as long as the fees are available in theory, it's going to pose some problem with a lawsuit forcing a more adequate compensation package, a move which rumor has it might be in the works. It might be a good idea to routinely file a motion for extraordinary fees in any case which winds up being tried. The worst they can do is say no, and building a record that that's what they do may help down the road.