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Mea Culpa

Last week I discussed a series of articles the Plain Dealer recently ran, accusing County Prosecutor Bill Mason of prosecuting hundreds of cases without any solid evidence to back them up.  I explained why I didn't think the article found the mark.   Any prosecutors' office is going to wind taking cases to trial only to have them completely fall apart; that's not necessarily an indication that there was nothing to the case to begin with. 

But Common Pleas Judge Tim McGinty took to the pages of the Cleveland Plain Dealer last Sunday to make an argument that somebody else is to blame for "weak or borderline cases" that should "never have even gone to the grand jury." 

Me.

Well, not just me.  Other criminal defense attorneys, too, those "who benefit at taxpayers' expense from an assignment system to a tune reaching six figures annually."  None of this would happen, he explains, if  "the public defender and the defense bar timely performed their constitutional duties and started representing the accused right after charges were filed."

The argument's pretty much of a non sequitur.  McGinty points out the various steps in the process that results in an indictment -- the police investigation, the prosecutors' evaluation, the grand jury presentation -- and notes that the whole thing can take three to six weeks after arrest, and "another two weeks may go by before the accused finally gets an attorney."  The discerning reader is left to wonder how, if we're not appointed until two weeks after the indictment, we're supposed to start representing him before that.  If I had the prescience to predict who the court was going to appoint me to represent six weeks before that happened so I could begin investigating his case before that, I'd certainly be earning a six-figure income, but from picking stocks, not handling crack-pipe cases for $500 a pop.

The problem with the piece is that it's really a promo for the county's Early Disposition Court, which McGinty has enthusiastically backed; instead of simply sticking to that, he lobbed some cheap shots at defense attorneys, too.  About now, you won't be disappointed to learn that McGinty is a former prosecutor.

The EDC was designed to streamline the process described above:  instead of the case sitting around in a municipal court for a week or so, waiting for a preliminary hearing and bindover to the grand jury, a felony charge is immediately referred to the county prosecutor's office.  The lower-level cases are set up for early disposition conference:  an attorney is assigned, and the conference is set for a few days later.  The attorney will get the police report and discuss it with his client, the client will waive his right to grand jury indictment and enter a plea to an information, then be sentenced about three weeks later.  Ideally, from arrest to sentencing, the whole process can take 45 days or less.

I'm not sure whose "ideal" that is, though.  To be sure, having people languish in jail for six weeks until they even get a lawyer isn't desirable, and there are a lot of cases that can, and should be, expedited in this fashion.  But there are a lot of cases that can't, and it's often difficult to distinguish between the two.  While McGinty refers to "low-level" cases, I've seen second degree felonies handled in that fashion. 

And even for the low-level cases, there's no reason for unseemly haste, at least if the client's not in jail.  We're not talking about making widgets in a factory, we're talking about giving people a felony record.  I want to do everything I'm supposed to do to ensure that they get a fair shot to avoid that.  Even where there's no doubt as to facts, I have a job to do, and I try to do it conscientiously.  I don't want my first meeting with my client to be interpreted by him as an attempt to get him to plead to something.  I've found that many defendants assume that, because you're getting paid by the state to represent them, you're really working for the state; it takes a little while to build a relationship of trust with him.  And then there's the matter of sentencing.  I don't want to just look at his record.  I want to talk with him, and with his family.  Does he have a drug problem?  Mental problems?  Has he gotten treatment?  How'd that work out?  How's his support system?  Answers to all that take time.

Of course, that could simple be me trying to justify the six-figure income I and many defense attorneys make from handling appointed cases. 

In our dreams.  I've talked about this before, like in this post from four years ago, listing the appointed fee hourly rates and caps for the five largest counties in Ohio, with Cuyahoga County finishing an abysmal last.  (Since that post was written, though, the in-court and out-of-court fees have been raised by $10 an hour, and the cap has jumped from $900 all the way to $1,000.  Happy days are here again!)  Or this post, about a Cleveland lawyer who spent six weeks in trial on an appointed case, and then saw his application for extraordinary fees turned down, leaving him with $900 to show for the 180 hours he put into the case. 

I haven't had anything quite that bad happen to me.  To be sure, I've wound up trying my share of cases, and when you're appointed, with the caps we have here, that means you're trying the case for free.  Like the crack-pipe case for the 46-year-old transvestite with 26 prior drug convictions, which is immortalized for posterity here.  And I remember another case from a few years ago, one involving a health aide who was charged with stealing money from one of her patients.  That took forever to talk the prosecution and the client into going into diversion, only to have her rejected for that because the victim's family objected.  That meant we had to try the case, which took the better part of three days.  I went back and checked my fee bill:  it showed 42 hours.  I got $400 on the case.

Tim McGinty might remember that one, too.  He was the judge.

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