Welcome to The Briefcase

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


Update on assigned counsel reform

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."

That's not an entirely fitting description.  First, it's not clear that this was a "committee."  True, there were probably about 75 people in attendance, pretty much evenly divided between judges and criminal defense lawyers.  The one sitting on the dais and conducting the discussion was County Prosecutor Tim McGinty.  As I'd explained a few posts before, in the settlement agreement resolving a lawsuit filed over the failure to provide speedy initial appearances after arrests, McGinty had "consented" to draw up policies for the assigned counsel system.  This was a bit like saying, "Okay, I'll consent to take over Poland," and more than a few judges and lawyers expressed misgivings over McGinty's even having a role in all this. 

And that's where we come to the ideas part.  Like the first meeting, much of this one was consumed by the debate over "vertical representation":   the idea that the same lawyer who represents a defendant at the initial appearance should represent him throughout the case.  As I explained before, this is not merely impractical, it's pointless:   there's really nothing for the attorney to do but ask a few questions of the defendant so that he can make an argument for bond.  During the course of the meeting, it became apparent that McGinty's real motivation for arguing for this was his belief that it might help resolve cases at the first appearance.  Frankly, a defense attorney's trying to resolve a case at that point would be malpractice; there's simply no way that she could have sufficient information to competently advise a client on that issue at that point.

There are only three real issues to be resolved with an assigned counsel system:  who appoints the attorneys, who's eligible to be appointed, and how much they get paid.  Even McGinty expressed his support of increasing the compensation, mainly because a contrary opinion would be indefensible.  Attorneys here haven't seen an increase in their maximum fees -- $1,000 for a 1st degree felony, $500 for a 5th -- since 1989; if the same thing had happened to judges, their present salary, adjusted for inflation, would be $14,000 a year.  Who gets appointed is slightly more problematic.  It doesn't seem like there's much disagreement that the standards at the top have to be tightened somewhat, but what it takes to get on the list -- and what it takes to remove someone -- is a subject that merits some debate.

The real sticking point, though, is how the attorneys get selected.  McGinty's railed for years against the current system, which has the judge in the arraignment room making the assignments.  His claim that this leads to corruption is baseless; judges aren't throwing cases because somebody gives them campaign contributions.  Nor are they appointing unqualified lawyers to handle cases, at least serious ones.

But while corruption isn't a problem, economic favoritism is.  There's no question that for a variety of reasons -- contributions and insider status among them -- assignments go more frequently to a select group of defense lawyers.  An implicit recognition of this is contained in Local Rule 33(F), which provides that "during a Judge's two week service in the arraignment room, no attorney may receive more than four criminal assignments for four different Defendants."  But even that hasn't proven much of a safeguard in light of the court's switch several months ago to one-week stints for judges in the arraignment room.  I've talked to a number of young lawyers who haven't gotten an assignment since.  "The judges used to give the insiders all the assignments the first week, and then I'd get the dregs the next," one told me.  "Now, there aren't any dregs."

There's certainly an argument to be made that this doesn't matter.  After all, the purpose of the appointed counsel system isn't to spread the wealth, it's to make sure that competent attorneys are assigned to represent indigent defendants.  And it does that, again, at least for the serious cases.  Given that, it's hard to make an argument for a big change in how counsel are assigned.

Especially if you consider the economics.  There are a lot of criminal defense lawyers who derive a sizable portion of their income from assigned counsel fees.  We'll talk about that tomorrow.  Honest.  You can trust me.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions