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.
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