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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Assigning counsel

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.

As I explained last week, the County got sued last year in Federal court because people were being held in jail too long before appearing in front of judge.  The plaintiff and the County entered into a consent agreement, called the Dumbroff decree, and one of the provisions was that McGinty's office would come up with a policy to make sure that initial appearances were held within 48 hours of arrest.  Instead, he hired a policy center to prepare a report and recommend changes in the entire assigned counsel system. 

McGinty doesn't like the present system, not merely because he believes it's inherently corrupt for judges who assign criminal cases to get contributions from the people they assign them to is inherently corrupt -- more on that in a minute -- but also because he doesn't really care for defense lawyers.  Even former prosecutor and serial Brady violator Carmen Marino's name will elicit fond memories from most defense attorneys.  I've never heard one speak of a pleasant experience they had with McGinty, and often describe their experiences in bitterly profane terms.  That enmity is returned:    earlier this year, McGinty urged the County Council's judiciary subcommittee to abolish the assigned counsel system, and instead have all the indigent cases handled by the public defender.

That's not going to happen, at least anytime soon.  Last year appointed attorneys handled 5,526 felony criminal cases here.  Dumping that on the public defender's lap would require hiring about 40 additional lawyers and their support staff, and renting office space to accommodate them.  Even McGinty's report recommends that we keep the present system.

But with some major modifications, one being the way cases are assigned.  The report proposes reinvigorating the moribund county public defender commission:  the commission would hire an administrator (a lawyer with "a reputation for integrity" who would also have to give up the practice of law while he's doing this gig) who would set the qualifications for attorneys to become eligible to handle assigned cases, would assign the attorneys (either "randomly or by fixed rotation"), and would monitor their performance. 

Most defense lawyers figure the judges would never agree to this, because if they could no longer assign cases, lawyers wouldn't contribute to their campaigns.  (And yes, Virginia, defense lawyers do contribute to judges in the expectation of receiving assignments.)  This may be whistling past the graveyard, though, because it greatly overvalues the significance of contributions.  The head partner at Baker Hostetler can collect more in a day than defense lawyers are going to contribute in the entire campaign.  Besides, contested elections are a rarity:  in the last two cycles of common pleas elections, primary and general, only one out twelve was decided by a margin of less than twenty percent, and in two-thirds of the races, the judge ran unopposed.  If McGinty turns up the heat by going on his "corruption" kick about the judges being too cozy with defense lawyers because of campaign contributions, it's not difficult to envision the judges deciding they don't need the hassle.  And the recent hiring of someone off the Plain Dealer editorial board as one of McGinty's top assistants might be an indication of his willingness to go public on this.

It's legitimate to question whether there's a point to all this, though.  The goal of what the report calls an indigent defense delivery system (I think it's a subsidiary of FedEx) is to provide quality representation for poor people.  I haven't even heard an argument that the assigned counsel portion of the system isn't doing that, at least on par with what public defenders provide.

Still, I think something's going to happen.  It's certainly not going to be hiring of an administrator.  If it's random assignments you want, you don't need to pay some guy north of a hundred grand a year to pick numbers out of a hat.  There's a computer down in the arraignment room programmed to randomly assign a judge in a case, and I'm guessing that it wouldn't require a Microsoft Task Force to fix it so that the lawyer is assigned the same way.  It may be something substantially less than a fully random system.  But it's going to be something.  McGinty has pushed this for too long and too hard to shrink away from it.

Actually, that might be of benefit to the criminal bar, because the proposal also includes changes to compensation.  We'll talk about that tomorrow.


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