August 2013 Archives
Yesterday I talked about why most criminal defense lawyers will rely on assigned cases for a significant portion of their income. To do that, though, you have to get on the list of attorneys who are qualified to take assignments. We've talked about who should appoint lawyers from the list (judge v. commissioner v. machine), and we've talked about how much the lawyers should get paid. Today we'll talk about who should be getting appointed. In other words, how do you get on the list?
One of the lawyers in my office was retained to handle a death penalty case last year. He and his co-counsel split $100,000. He was also assigned to handle seven other death penalty cases last year. On those seven cases combined, he made just a tad over $20,600. I don't know how much time he spent on the retained case, but I'll bet he made more per hour than the $43.63 the County paid him on the assigned cases.
So, how is it a viable business model that you'll take 40% of what your normal fee would be to handle seven times as many cases?
Because that's where the money is.
I told you I'd talk today about the economics of the assigned counsel system, as it pertains to the guy getting the assignments. But I wanted to update you about the meeting last week of the committee to discuss proposed changes to the assigned counsel system here in Cuyahoga County. It wasn't nearly the debacle of the first meeting, which I thought on several occasions might devolve into an exchange of gunfire. This was more cordial, but it brought to mind the century-old description of a committee offered by a member of the British Parliament: "a cul-de-sac down which ideas are lured and then quietly strangled."
Getting to guilty. A couple of years ago, the Yale Law Journal published a paper with the beguiling title, How Much Difference Does a Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes. (Okay, beguiling to me. Victoria's Real Secret: Sex Tips from the Victoria's Secret Models might be more in line with the general definition of that word.) The "startling" findings, based on a study of Philadelphia homicide cases, were trumpeted in the New York Times: the study found that the conviction rate of defendants with public defenders was 19% lower than those with court-appointed lawyers, and their expected time served in prison was 24% lower. They were also far less likely to get a life sentence.
A trial judge in Ohio has a wide range of sentencing options. The low and high of the sentencing range for a first degree felony varies by a factor of almost four. Throw consecutive sentencing into the mix, and one judge can impose a sentence that's a fraction of what the judge in the next courtroom might impose.
Yesterday, I gave you profiles of various types of lawyers who handle assigned criminal cases. I could have done the same thing for public defenders, or even for criminal defense lawyers who don't handle assigned cases, and the profiles would be similar. You'd have White Collar Crime Lawyer, well-connected, polished, and experienced, and well worth the $450 an hour he's charging. But you'd also have Scuffler, the guy who can't even make the assignment list, but operates on the principle that some people just feel better paying a lawyer instead of taking a public defender, and the $2,500 you'd charge for a kiddy-rape is within their means, if barely. You'd have Dedicated Public Defender, the guy who's in it for life because he really believes that keeping the government honest is God's work, but you'd also have TimeKiller, the guy who's a public defender because the only way he was ever going to make a living was off the government. (Note to self: someday do post of prosecutor profiles. TimeKiller works both sides of the aisle.)
All of the names and some of the details have been changed, but you get the point.
Ellen thought she had it made, getting a job with a white-shoe firm right out of law school. Then Big Law took it in the shorts, and suddenly Ellen was on the street with a $1700-a-month tab on a student loan staring her in the face. She always kind of liked criminal law, or at least thought she did, so she gets on the assignment list -- you've got to sit second-chair through two trials -- and hustles for assignments. Not just dropping off a card for the judge in the arraignment room, but hitting up the bailiffs for probation violation hearings. It's tough; criminal defense, at least in this town, is a Boy's Club, and an older Boy's Club at that. She does manage to get some, and had her first jury trial six months ago. She won. She'd gone out to the scene, gone out to interview witnesses, went over to see her client in the jail every week, researched the law, prepped for the voir dire and cross of the State's key witness... That's a lot of work, and she'd blown through the $500 cap a month before trial. There's no substitute for experience in criminal law - she'd almost made a critical mistake by putting her client on the stand, but some older lawyers talked her out of it. But dint of hard work can cover up for a lot of errors. She enjoyed doing the work, and it's not like she had anything else to do.
Yesterday I told you about a friend of mine who made $77,000 from the county last year for representing indigent defendants. That sounds like a lot of money -- hell, it is a lot of money -- but what I didn't tell you is what he did for that: he was assigned 71 cases, and he spent 1,377 hours working on them. That comes to an hourly rate of just under $56, or a good bit less than what you'd pay a plumber to come out to fix your toilet.
I know a guy who made $77,000 in assigned counsel fees last year. He's a good lawyer. Not a great one. If you've got $50,000 to spend on defending a criminal charge, his name's not going to be on the short list. But I do a lot of appeals, and I read a lot of transcripts, and the best cross-examination of a lead detective in a homicide case I've ever read was by him. He tries a lot of cases, and there's no substitute for experience. He's a good lawyer.
How much he'll make in the future in assigned counsel fees, if anything, is one of the subjects of the criminal justice reforms being pushed by County Prosecutor Tim McGinty.
Some interesting juxtaposition on sentencing. On Sunday, Nicholas Kristoff had a story in the New York Times about Edward Young. Young committed some burglaries in his mid-20's, but had married after his release from prison in 1996, married, gotten a steady job, and stayed out of trouble. While helping a neighbor widow sell her husband's belongings, he found seven shotgun shells and set them aside so the children wouldn't find them. Young became a suspect in some local robberies, and the police searched his home and found the shells. He was cleared of the burglaries, but the seven shells and a prosecutor looking to do nothing beyond putting another notch on his belt were enough to earn Young Armed Career Criminal status and a 15-year minimum mandatory sentence in prison.
Here in Cuyahoga County, the 8th District remarked upon an "extremely light" sentence for child pornography, and a judge gave Walter Cooperwood near-maximum consecutive sentences of 22 years -- on a plea, no less -- for crimes he committed as a 17-year-old.
I skipped over the court of appeals cases last Monday, so we've got two weeks' worth of them to go through. Let's hit the highlights.
Last August Andrew Dombroff sued Cuyahoga County in Federal court because he'd been kept in jail for five days after his arrest without a bond hearing. The result was a consent settlement that gave new County Prosecutor Tim McGinty the opportunity to do what he's wanted to do for decades: radically change the criminal justice system here.
The video of what happened on the No. 5 RTA bus in Beachwood on September 18th starts with... well, you take a look:
The police were called to the scene, came out, interviewed people, and filed a report. Artis Hughes, the bus driver, told them that Shi'dea Lane, the passenger, had grabbed his throat and spit in his face, which is what prompted him to punch her. Three witnesses, one a friend of Lane, indicated she was intoxicated, and basically corroborated Hughes' version of events. And while the video doesn't confirm that version, it is consistent with it; you see Lane starting to approach Hughes, what happens between them is obscured by the guy in the yellow jacket, but whatever did happen, it was enough to enrage Hughes.
Nobody was arrested; in fact, the police dropped Shi'dea off at the restaurant where she works. Actually, there was thought that Lane might be prosecuted, but a week later, Hughes came in to the station and signed a
form saying he didn't want to press charges. And that was the end of the matter.
Not much. A mere three weeks ago, the 8th dispensed twenty-one decisions in criminal cases, each brimming with insight and wisdom. This past week? Only four decisions, and a solitary criminal case.
So that case, State v. McLin, is the one I'm going to write about. On the surface, it's just another case holding that a judge's denial of a motion to withdraw a plea is rarely going to be reversed on appeal. But I've been harping about the importance of plea bargaining, because the vast majority of our cases are going to wind up in one. McLin is a good case to look at, because it raises a number of problems that occur in that context.
Normally, I do the case update on Mondays, but with SCOTUS out of session and the Ohio Supreme Court not handing down any decisions, that's a little tough. Well, that's not quite true; the latter court made two orders with regard to a death penalty case, State v. Slagle, demonstrating the acceleration of the legal process when the defendant's date with the gurney approaches. Celerity would not seem to be a concern, given that Slagle committed his crime during Reagan's second term. But no; on Tuesday the court ordered the State to reply no later than Friday at noon to Slagle's motion for stay of execution, and followed that the next day by ordering the State to file a motion a response to Slagle's motion to vacate his sentence, the response due again by Friday noon. So there were some momentous life-and-death decisions to be made.
And then Slagle went and hanged himself in his prison cell over the weekend. So I guess we'll never know what would have happened.
So I figured I'd use today for my annual recap of the US Supreme Court's past term. If you need to find it, or my recaps from previous terms, in the future, type "Supreme Court Recap" and the year you're looking for in the search box at the right. Below is a quick recap of each decision, with links to posts I did discussing oral argument or the decision. The decisions here only involve those which might apply to state cases; I'll have a post on cases significant for Federal practitioners next week.
On Tuesday, I talked about the8th District's en banc decision in State v. Rivera, which held that it was plain error for a trial court to fail to consider the issue of allied offenses at sentencing. This raises an issue that I've been thinking about for a while: just what is a defense attorney's obligation at a sentencing hearing? (Not the only issue I've given thought to; I've also pondered the great philosophical questions, like whether Anthony Weiner's emailing pictures of the maleness of his anatomy to various women is some sort of cosmic joke.)
Anyway, on to more important things. There you are, standing next to your client at the hearing. You are not a mere potted plant, you tell yourself in your best Brendan Sullivan impersonation. (Hey, look it up. That's why God invented Google.) What is your purpose? A couple of issues:
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