Who's in the pool?
Yesterday, I gave you profiles of various types of lawyers who handle assigned criminal cases. I could have done the same thing for public defenders, or even for criminal defense lawyers who don't handle assigned cases, and the profiles would be similar. You'd have White Collar Crime Lawyer, well-connected, polished, and experienced, and well worth the $450 an hour he's charging. But you'd also have Scuffler, the guy who can't even make the assignment list, but operates on the principle that some people just feel better paying a lawyer instead of taking a public defender, and the $2,500 you'd charge for a kiddy-rape is within their means, if barely. You'd have Dedicated Public Defender, the guy who's in it for life because he really believes that keeping the government honest is God's work, but you'd also have TimeKiller, the guy who's a public defender because the only way he was ever going to make a living was off the government. (Note to self: someday do post of prosecutor profiles. TimeKiller works both sides of the aisle.)
The Sixth Amendment means we've got to provide lawyers for all defendants, and considering that 80% can't afford one, we've got to pay lawyers to do it. One of the questions is how good do they have to be, especially considering that we're paying substantially below market value. There's a problem here: the standard for ineffective assistance for counsel has been dumbed down to the point where anything short of drooling on the trial table will be ascribed to "trial strategy and tactics." The first thing we have to do is divorce ourselves from the idea that "competent" and "ineffective" are flip sides of the same coin. Our goal is to provide good representation, not merely representation that isn't catastrophic.
The next question is, how do we do this? There are a number of "indigent defense delivery systems": public defenders, assigned counsel, "contracted" counsel (instead of working a case on an assigned basis at an hourly rate, the attorney agrees to accept a definite number of cases on a flat fee), or some combination. Here in Cuyahoga County, one-third of indigent defense cases are given to the public defender's office, with the rest going to assigned counsel.
That leads to the question: who provides better representation? There have been all kinds of studies done. Some show no difference between public defenders and assigned counsel (in fact, some show no difference between public defenders and retained lawyers), but many show an edge for the defenders. Part of that is probably due to economies of scale and the intrinsic advantages of organizations. If I want an investigator for a particular case, I've got to call around and find out who's available, I've got to file a motion with the court asking for one to be appointed, I've got to get the judge to rule on it, and if there's a discrepancy between what the investigator wants and what the judge is willing to allow, I've got to smooth that out. If a defender wants an investigator, she picks up the phone and calls the one who's on staff. And she can call up the appellate division if she has a legal question, or have a paralegal interview witnesses, assets not necessarily available to private attorneys.
But overall, at least in this county, things seem to be working well. As I said before, I handle a lot of appeals, so I get to read a lot of trial transcripts, and for the most part, the system does what it's supposed to do: provide quality legal representation for poor people. I don't see any difference between assigned counsel and public defenders. The worst case of ineffective assistance I've ever seen was by a retained lawyer. Still, the system can be improved; there are some lawyers who simply shouldn't be handling assigned cases, or at least serious ones.
So what to do? The court's list is divided into three tiers: murder and aggravated murder, "major" felonies (1st, 2nd, and 3rd degree), and low felonies (4th and 5th). The murder list needs to be expanded to include any case that involves a possible sentence of life imprisonment, which many sex offenses now do. It should be very hard to get on that list. With the current practices of the parole board, a life sentence often means just that, and if that's what's on the line, you should have the best. It would be very easy to get on the low felony list, and the moderately hard to work your way onto the high felony list.
So how do you get on it? All of the qualifications presently used (they can be found in Local Rule 33) address trial experience as the sole criterion: you have so many jury trials, and you get on the list. The present requirements are too lax, and should be tightened, Right now, to get on the major felony list, you have to have tried two cases yourself and watched somebody else try two others. So you could try two crackpipe cases, watch somebody else try two more, and be assigned to represent some guy charged with an armed home invasion of a family of five, and he's looking at doing 15 years easy. That shouldn't happen.
But it has to be about more than trials. It makes no sense to focus exclusively on something that happens less than once in every forty-three cases. One of the ideas that CCDLA, the county defense bar, proposed was the creation of a mentoring program, where young lawyers would follow the lawyer throughout the case, learning how to investigate it, strategize it, and how to talk with the client, the prosecutor, and the judge to resolve it. Learning how to do that is just as important as sitting through a trial.
And you have to have a way to get people off the list. The assignment lists are renewed every two years, and if you haven't had a single trial in those two years, and especially if you have a habit of withdrawing from cases, that's a pretty clear indication that your client's interests are running a distant second to your own.
This leads to the final question: who comes up with the qualifications, decides who's on the list, and decides who gets thrown off? To understand that, we've got to talk about the economics of the assigned counsel system. We'll do that on Monday.