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Shutting up, and pro bono work

This will probably not come as a surprise to many of my regular readers, but I sometimes have a problem keeping my mouth shut.

Exhibit 347 was my Christmas story post, relating the trial of Elizabeth, a home health care aide.  I was defending her against a charge of theft, based upon her having written checks for her car payment on the account of her patient, a wheelchair-bound man with cerebral palsy and the functional IQ of a 6th-grader.  Normally, the names and places in my war stories are disguised, but in this one I made the mistake of mentioning the precise courtroom.  The outcome of the trial, of course, was a foregone conclusion, and when I returned last Thursday for the sentencing, I found that someone had provided the judge and the prosecutors with a copy of the post.  The judge, to my abundant relief, was pleased with it. 

The prosecutors, not so much.  I asked the guy who tried the case whether the victim and his family were going to be there, and he said no, but he was going to say something on their behalf.  "Does that mean you're going to use a wheelchair when you do?" I asked, displaying my customary sensitivity to the plight of others less fortunate.  "If I do, are you going to blog about it?" he replied testily.  I guess having someone write a public post spending a paragraph about how pointless your cross-examination of the defendant was will do that to you.

Elizabeth got probation, but barely.  She insisted she'd done nothing wrong, and that God knew what the truth was.  Judges at sentencing would rather hear remorse than that a higher power is looking askance at what is going to happen.  In light of her being able to go 43 years without a criminal record, though, the judge gave her paper, but not before admonishing her for being "self-righteous."

As most criminal lawyers know, the only thing more surprising than how many defendants are tuned in to what the Almighty thinks of their cases is how many times the Almighty seems to be on the same page with them.  That same afternoon, I narrowly averted a trial in a domestic violence case where my client was charged with having punched out his mother.  We actually got to the point of starting jury selection, with a panel that featured among its first twelve members two employees of the county prosecutor's office, a prior victim of domestic violence, and the chief of police of a local suburb.

Not that it mattered; let's face it, other than the Menendez brothers, you're going to have a hard time finding a sympathetic juror in that kind of case.  The topper was that during the lunch break, I had to sit in the holding cell, trying to come up with voir dire questions that would ferret out latent mother-beating tendencies among the prospective jurors, while I listened to my client tell me how Jesus would make sure the truth was known and that he would be acquitted.   "So what happened when you picked up the ten to twenty-five for the agg robb back in 1996?" I finally asked.  "Jesus on vacation that week?" 

Calmer heads prevailed, we finally worked out a plea, so I trotted back to my office to file the fee bill in Elizabeth's case.  With the two-and-a-half days of trial, I'd spent a total of 38 hours in the case, for which I'll be rewarded with a $400 check in about four weeks.

When I got back to the office, though, I found an email from the Supreme Court waiting for me.  There's been some agitation over the past few years to impose a pro bono requirement on attorneys; in addition to the mandatory 24 hours of Continuing Legal Education, including the 2½ hours of "professionalism, ethics, and substance abuse" (in which we're biennially reminded why it's a bad idea to call our fellow lawyers scumbags, steal from our clients, or do a couple lines of blow before heading off to a hearing), we'd be required to give away 50 or so hours a year of our time.

Last November, in perhaps an incipient move toward this, the Supreme Court announced that it was "urging" attorneys to document the pro bono work they do.  The next step in this process was the email, which included a link to a "six-question external electronic survey"  about pro bono work that the attorney had provided.  The first question was, "In what practice area(s) did you provide pro bono legal services?  (Select all that apply.)"   Thirty-nine separate areas of law were listed, with a nifty little checkbox next to each one. 

Criminal law wasn't one of the thirty-nine areas.

Well, to the people who emailed me the survey, here's the way it goes.  As I've mentioned in the past (here and here, to name a couple of times), indigent criminal defense in Ohio, and particularly in Cuyahoga County, is a joke.  That $400 I'm getting for Elizabeth's case was the maximum allowed for a 4th degree felony here; it's since been raised to a whopping $500.  I could've applied for extraordinary fees, but if a guy who spent five weeks in trial is going to get denied them, I figure I don't have much of a shot.  There are a lot of very good lawyers -- lawyers far more skilled at trial than I will ever be -- who handle appointed criminal cases.  They don't do it for the money.  No one, save for young guys just trying to build a practice, does it for the money.

So Ohio, and most states for that matter, have decided to satisfy a defendant's Sixth Amendment right to counsel on the backs of underpaid public defenders, and undercompensated private counsel.  Well, that's my pro bono work, guys.  It'll just have to do.


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