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Stiffing a lawyer

Dick the Butcher's phrase from Shakespeare's Henry VI -- "first thing we do, let's kill all the lawyers" -- wasn't far from the minds of some Cleveland citizens as the Anthony Sowell trial wended its way toward its inevitable conclusion this summer.

Two years before that, police had discovered the bodies of 11 women in his house, and Sowell was subsequently indicted on 85 counts, including 11 for aggravated murder with death penalty specifications.  The course of true love doth never run smooth, and justice along the Cuyahoga has its hiccups, too.  The first judge assigned to the case recused himself a few days later because of a conflict.  The second judge was removed by the Supreme Court because of concerns of "an appearance of impropriety" due to derogatory comments about one of the defense attorneys showing up on a cleveland.com blog which were later traced to the computer in her chambers.  (She claimed her daughter, on break from law school, penned the remarks.)

This county and its prosecutor's office don't have the best of reputations with the Ohio Supreme Court or the 6th Circuit, and after that inauspicious start the powers that be were probably tossing and turning with nightmares about the judgment entry in Sowell's future Federal habeas claim ending with the words, "Petition GRANTED, because this case was screwed up seven ways from Sunday."  So they decided to do something about it; mainly, turn on the money spigots.

I've written before of the penurious approach Ohio, and particularly this county, take toward indigent defense, most notably here, and oddly enough, that's not limited to non-capital cases.  I say "oddly," because most authorities have recognized that death is a qualitatively different punishment, and finding that a capital defendant has not been provided the necessary means to defend himself is easier than a similar finding for someone the government isn't seeking to kill.  Your client may be looking at a double-digit sentence for child porn, but good luck convincing a judge to give you five grand to hire an expert to see how the stuff got onto his computer.  But if the State wants to put a needle in your client's arm, the wallets open up.

Not here, though.  One of the most important people on a capital defense team is the mitigation expert:  she's the one who's going to interview all the family members, co-employees, employers, teachers, and just about everybody who knew your client, who's going to go through all the medical records, psych records, school records, employment records...  You get the idea.  Properly done, that can involve hundreds of hours of work.  A couple years ago, the maximum that could be paid to a mitigation expert here was $5,000.  Then the county lowered it to $2,500.  (By comparison, in the trial in Federal court last January of Antun Lewis, accused of setting a fire which killed eight children and a woman, the mitigation experts' fees ran close to six figures).

That went out the window in the Sowell case, though.  The money flowed not only for mitigation experts, but for various other evidentiary experts, and other things as well.  Sowell's house, it turned out, was within the site line of the video surveillance cameras of a nearby business, so the court appropriated money for a group of paralegals to sit and watch three years worth of video tapes to see whether there was anything which might be helpful to Sowell's defense.  To no one's real surprise, there wasn't, but those are the kinds of things you do in a death penalty case that you don't do otherwise.

What about the lawyers?  That's where things get interesting.  Appointed counsel in Cuyahoga County are paid at the rate of $50 an hour for out-of-court time and $60 for in-court time, or slightly less than what a plumbing company will charge you for the guy who comes out and snakes out your shower drain.  That applies to death penalty cases, too, and the fees are capped at a total of $12,500 for each of the two lawyers assigned to the case.

The cap's not too bad when you're talking about a capital case where the defendant got overly excited while robbing the 7-11 and waxed the cashier.  But it's an entirely different matter when you're talking about crimes which occurred over several years, and a trial which would take over two months.  After a series of meetings with the powers that be, Sowell's lawyers, John Parker and Rufus Sims, worked out a deal:  the fees would be $95 an hour, uncapped.

All of this, of course, wasn't done under the radar.  Any enterprising Plain Dealer reporter could check out the online docket, studded with entries awarding payment for all these items.  That only included the defense costs, of course, but if the enterprising reporter had a pocket calculator and a good sense of what it costs to prosecute a case like this, he could have figured out that, on the eve of trial, the total tab was heading north of half a million dollars.

Over the next ten weeks, the trial plodded toward the conclusion everybody knew was coming:  Sowell wasn't nuts, at least in the legal sense, and having 11 dead bodies found in your house is not, as we say in the law biz, consistent with any reasonable theory of innocence.  The guilty verdicts were followed by the other conclusion everyone foresaw.  Cuyahoga juries have been recently loathe to dispense death sentences, but the horrific facts of Sowell's case broke that pattern.  In a town as marred by the Great Recession as this one has been, using up some $600,000 of taxpayers dollars arriving at what most believed was a foreordained result didn't make many people happy, and when Sowell's lawyers filed a motion to vacate the verdict because of jury misconduct (which was denied), the gloves came off, with comments to the various Internet news postings, like cleveland.com, suggesting that the lawyers had earned "millions" of dollars, and even had signed book and movie deals.

Well, not quite.  Remember that part about the agreement not to cap the fees?  That turned out to be so five minutes ago.  On August 11, the day after the jury came back with its recommendation of death, the judge signed an order capping the fees at $150,000.  So no millions, no book or movie deal.  In fact, Parker wound up being compensated at the rate of $18.50 an hour for his trial time.  (Sims got nothing; the cap had been reached before he got in his fee bill for the trial.)

So that's a little over a grand for the time in trial, plus whatever else he made during that time.  Which probably wasn't much, because here's what you else you do when you're in trial:  nothing.  Being in trial all day, day after day, is tremendously mentally taxing.  You don't have an on/off switch; you don't come back to the office from the courtroom and figure that you're going to return client's calls or work on those other files that you've got or see if you can drum up some new business.  Especially if you're like most lawyers, and spend time thinking about what you could've done in trial that you didn't do, the question that you shouldn't have asked, the objection you should've made, and the hundred and one ways to second-guess yourself.  And then factor in that those second-guesses come with the thought that your client might pay for any mistakes you made with his life.

The judge in the case is a good guy, and I have to figure that the powers that be leaned on him.  This is, after all, the same county that recently removed the water coolers in the jury rooms because they couldn't afford them.  The judge's order, which you can read here, contained the usual language about how assigned attorneys "understand that they will not be compensated at the same rate as attorneys who are retained by clients with the ability to pay for representation," and how it's "part of the attorney's contribution and commitment to serve the interests of justice and the public good, to accept less than full consideration for their efforts on assigned counsel cases."

Maybe the entry should've been posted as a comment on cleveland.com.


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