Making a list, checking it twice
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?
First, the list should have several tiers. The goal of the system is to provide effective representation, and that varies substantially with the gravity of the crime. Someone could provide very effective representation on a drug possession case and be wholly at sea in a child rape case. In the past, there's been a "murder" tier: the attorneys qualified to handle homicides. (Death penalty cases require additional qualifications.) That should be expanded to include the vastly growing number of offenses which carry life sentences, and only the very best attorneys on the assigned counsel list should be eligible for those.
It's exactly the opposite for the bottom of the list. All you have to do now is sit through two trials as a silent "co-counsel," watching somebody else try the case. That's probably how it should be. Sure, there are going to be screw-ups, but at least the consequences of them are minimized.
The middle, 1st and 2nd degree felonies, is where it gets muddy. One case might involve a defendant facing thirty or more years in prison for a series of home invasions. Another might be the 43-year-old woman with no criminal record who got riled up at a family outing and stabbed her cousin in the chest with a barbecue fork, and who's not going to prison under any circumstances. That's where selection by the judge, if she bothers to take a look at a case before making the assignment, is so valuable. She's going to be able to match up the lawyer to the case much better than a computer can.
A problem I have here is that the only thing the qualifications address is trial experience. To get on the tier for 1st, 2nd, and 3rd degree felonies, you need to have tried a certain number of cases. Actually, the minimum qualification -- which is all that matters -- is having served as trial counsel in two cases, and having served as "assistant counsel" (watching somebody else try a case) in two others. I'm not sure that's enough, but I also think it ignores the other skills that a defense attorney has to acquire: negotiation, investigation, case evaluation, and client management. One of the things CCDLA is contemplating is the creation of a mentoring program, which is basically like the "assistant counsel" thing, except that the lawyer (the "mentee") attends all the pretrials, client meetings, and strategy sessions. I think going through that would count for something in place of simply looking at the number of trials the lawyer had. And there should probably be some other qualifications, like having so many hours of criminal law CLE per year.
Up to now, we've only talked about getting on the list. What about taking somebody off of it?
This presents a whole new set of problems. Up to now, the criteria have been purely objective: you do this, you get on the list. Kicking people off involves subjective criteria, and also raises the question of who's going to be making those judgments. Having the judges do it raises questions of the independence of the defense bar, with the possibility that defense lawyers might curb their advocacy for fear of offending judges who could have them removed from the list. Having defense lawyers do it raises questions of favoritism.
Or maybe you could just apply objective criteria for removal, too. If you haven't tried a case in three of four years, it's likely that your clients' interests run a distant second to your own; you'll do just about anything to get out of trying a case. And if you've got a habit of withdrawing from cases after you max out your fee, you shouldn't be on the list, either, for the same reason. You can make a living doing this, but you've got to provide quality representation in return. If your only goal is to make money, do something else.
There's another meeting of whatever committee is supposed to be deciding this coming up in late September. I'll have more to say about the subject then. I'm off for a long weekend, and I'll be back on Tuesday with my more normal schedule: an update on recent cases, and a review of what the 8th District's been up to recently.