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Power Play

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.  

McGinty, who spent the twenty years prior to his election as a common pleas judge and the ten before that as a top assistant county prosecutor, has always had big ideas about how the criminal justice system should run, ideas solely dedicated to making it run more quickly.  There's been progress in that regard; some reforms he proposed as a judge have been adopted, and the time between arrest and indictment has shrunk from 90 days to about 25.  But he was only one of 34 judges, so there was a limit to what he could do.  No matter how many times he called his fellow judges corrupt, they just wouldn't listen to him.

Let's get back to Dombroff.  We'll cut out the sausage-making, and get to the sausage.  Dombroff didn't get an earlier hearing because the policy was to have felony cases go to common pleas court for that.  The parties fixed it by having the municipal courts handle initial appearances for felonies, like they'd done before the policy.  They did it in roundabout way:  since the only parties to the suit were the county and the sheriff, the judge didn't have the power to tell the muni court judges anything.  Instead, the parties agreed that the Sheriff couldn't accept prisoners into the jail from a suburb unless the prisoner had had an initial appearance within 48 hours.  Problem solved:  basically, it meant that any municipality which didn't provide a hearing within 48 hours was going to pick up the tab for the defendant's jail stay.

So, end of the matter, right?  Well, no; there was another provision in the consent agreement:  the county, "through the Prosecutor's Office, shall establish a policy to require that a warrantless arrestee charged with a felony has legal representation at the initial appearance and is provided with reasonable discovery prior to or at the initial appearance."

Why the prosecutor should have a role is in ensuring that defendants get legal representation at the initial appearance is anybody's guess, but McGinty wasn't interested in trifles.  He contracted with the National Center for State Courts (NCSC) to study the whole indigent defense system here and make a recommendations on how to change it.  Dave Steelman, a representative of the NCSC, spent two days talking to a some judges, prosecutors, and defense lawyers (I was one), and other people, and came up with a report containing 25 recommendations for how the criminal justice system here should be changed.

The report has a little bit of everything -- how criminal cases should be assigned, the qualification of assigned counsel, evaluating their performance, among others -- but what it doesn't have is any facts.  This wasn't a "study."  You're not going to find out whether what happened to Dombroff happened to 10% of all prisoners or 5% or 50%.  The report was simply a proposal to implement various changes based on the "best practices standards" of the ABA.  (We'll talk about those in much more detail over the next couple weeks.)

That's all well and good, but it boils down to, "here's a bunch of solutions for problems you may or may not have."  This become apparent ten minutes into the meeting last week of judges, prosecutors, and lawyers to discuss the report.  The entire ninety minutes was consumed debating a single one of the proposals, "vertical representation":  the idea that the same lawyer should represent the defendant throughout the criminal proceedings, from the initial appearance on.

Now, in a perfect world, I like that idea.  But I don't live in a perfect world; how does the idea work in mine?  It doesn't.  There are twelve suburban courts, and it takes about a half hour to get to any of them.  That means that within a day's notice, an appointed lawyer has to blow off his morning schlepping out to a muni court and back for $60 an hour, knowing that he's basically doing it for free because once he spends eight hours on a case he's maxed out his fee, and he surely would have done that without the side trip.  And there's not a lot of lawyers who just happen to be free for a whole morning on a day's notice.

And what's the benefit here?  To put it charitably, handling an initial appearance does not require a lawyer to summon the full panoply of his skills and talents.  The next case that gets reversed for ineffective assistance of counsel at the initial appearance will be the first.  So let's provide a hearing and a lawyer, but not invest a lot of time and effort in making sure the same lawyer handles the case from that point on.

But that's all a sideshow.  The more significant proposals would severely limit or eliminate the judges' role in determining who's eligible to appear before them as an assigned lawyer for an indigent defendant, what the qualifications of those lawyers should be, and how much they should be paid. 

That's what McGinty is after.  He has always had contempt for the entire assigned counsel process, believing it completely corrupt, with defense lawyers "buying" judges through campaign contributions.  I'd sleep easier knowing that Judge X is going to risk shame and disgrace, not to say a few years in the pokey, to throw a case for me just because I gave him a hundred bucks so I could eat lukewarm food at his fundraiser, but frankly, I don't see it happening.  And McGinty's fulminations about corruption would probably resonate better if he had a shred of evidence less than a quarter century old to back it up.  While two judges here did go to prison a couple of years ago in the county corruption debacle, they were corrupted not by lawyers or parties, but by ... ahem... elected politicians.

The problem, though, is that McGinty is playing chess while the judges are playing checkers.  Getting a significant portion of thirty-four judges, let alone all of them, on the same page evokes the hackneyed herding cats metaphor.  But the stakes are huge:  this is about who's going to call the shots in a significant aspect of the criminal justice system.  If the judges don't stand up for their independence, there's nobody else who's going to do it for them.

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