Assigned counsel reform - Update
The word for the day is "stultifying." That's an apt description of the latest
meeting on the proposed reforms to the assigned counsel system here in Cuyahoga
County.
I did a number of posts on this a few weeks ago, starting here, but
let's do the "in last week's episode" routine.
A guy named Dumbroff filed a federal lawsuit against the county, claiming
that he sat in jail for five days without seeing a judge or a lawyer. Earlier this year the county entered into a
consent decree, basically agreeing that a defendant had to have an initial
appearance within 48 hours of arrest. As
part of the decree, County prosecutor Tim McGinty tasked himself with the
responsibility of coming up with a procedure to ensure this. McGinty, never one to think small, took the
opportunity to hire Dave Steelman of the National Center for State Courts to do
a study on how the assigned counsel system in Cuyahoga County could be
improved.
There are three major aspects to Steelman's report: how lawyers are appointed to represent
defendants, the qualifications of the lawyers, and how much they're
compensated. Actually, the Cuyahoga
County Criminal Defense Lawyers Association (CCDLA) had been working with a
committee of judges on both the compensation and qualification issues before
Steelman entered the picture. (In fact,
Steelman's recommendations on those issues are taken verbatim from the proposal
that CCDLA had submitted to the judges.)
A week ago, the judges agreed to raise the caps for lawyer compensation
by about $100% across the board. For a 5th
degree felony where you'd max out at $500, you can now get up to $1,000. Sure, it's not going to put your kid through
college, but it's a step in the right direction. It's not a done deal; ultimately, the County
Council has to approve it and appropriate the money. But even McGinty agrees that assigned
attorneys are due for a substantial increase; the last time the caps were
raised, the Berlin Wall was still standing.
This gets us back to the first issue, the assignment
system. This has been the Big Thing for McGinty
for years: he's convinced that the
present assignment system, in which lawyers contribute to judges' campaigns,
and then those judges appoint lawyers to handle the cases for indigent
defendants, is corrupt, and he points to the recent conviction of two judges in
the county corruption probe. His case isn't
helped by the fact that the corruption there involved the judges' activities in
civil suits, with them doing favors
for politicians and the parties in those suits.
If there's any evidence that judges are being bought off by the
contributions of criminal defense lawyers, McGinty should provide it. Given that the maximum a lawyer can
contribute to a judge's campaign is $575, that's not likely to induce anyone to
risk a few years in Federal prison.
Steelman's criticism of the system comes from a different
angle. He argues that it impinges on the
independence of counsel: that defense
counsel might be reluctant to advocate strongly for their client if it would
mean angering the judge upon whom they're dependent for appointments. There'd be a lot more merit to that claim if the
judge handling the case was the one making the appointment, and there were only
a handful of judges. Under the current
system, the judge in the arraignment room makes the assignment, and with 34
judges, the risk of upsetting one doesn't really play into any lawyer's
calculations.
That brings us back to the meeting last Thursday, the third
that's been held on Steelman's report. Meeting
of what? That's not really clear; it's
denominated as a subcommittee, but the membership seems to be "limited" to anyone
who shows up. Last week, that included
very few judges; they were off at a judicial conference in Columbus. Most of the meeting, as was the case with the
previous two, was devoted to the subject of "vertical representation": the idea that the same attorney should handle
the case from the initial appearance throughout. And as was the case with the previous two,
everybody with the exception of McGinty and Steelman agrees that this simply
won't work, from a logistical standpoint.
You can't get lawyers to blow off an entire morning to go out and handle
an initial appearance in one of the 12 suburban courts. It was tried before, and it just didn't
work. Plus, given the limited nature of
the initial appearance, making sure that the same attorney handles the case
from that point on carries little benefit.
It's not exactly a bonding experience; I've never had an assigned case
where the client asked me, "Hey, what happened to the lawyer I had at the initial
appearance?"
But that's a sidelight; the way cases are assigned is the
real battleground here. McGinty's stake
in that was made clear by who was at
the meeting last week: at least 40
assistant county prosecutors. I'm
guessing that their participation was spurred more by a nudge from their boss
than by intellectual curiosity. And the
latest salvo in this battle was fired by Steelman himself: last Friday, he sent out an email with two
spreadsheets attached, the first supposedly showing the names of attorneys
appointed by each judge, and the second showing how many case assignments each
attorney received during the four-year period covered by the report.
I say "supposedly" because it turns out that the data was
wrong. This probably wasn't as troubling
as the fact that the data had been supplied to Steelman by McGinty's
office. McGinty's role in all this has proven
discomforting to many defense lawyers and judges, particularly given the third
of the twenty-five recommendations contained in Steelman's report: "Indigent defense assignments in proceedings
before the Court of Common Pleas or any Municipal Court in Cuyahoga County
should be free of any involvement or influence by the Office of the Cuyahoga
County Prosecutor."
Steelman followed up his initial email with another
confessing that the data was in error, but that nonetheless a more accurate
study should be done, so that we could make "evidence-based decisions about
felony indigent defense assignments in Cuyahoga County." I'm all for that, but it seems to me that the
most essential question here is one that's not mentioned in the emails or in
Steelman's forty-eight page report: Is the assigned counsel system in
Cuyahoga County providing quality representation to indigent criminal
defendants? After all, that's its whole purpose.
It would be easy to find the answer to that question.
You could ask judges about it; they see criminal defense lawyers -- assigned,
retained, and public defender -- every day. You could talk to appellate
judges, to see if they're getting more substantial assignments of error on
ineffective assistance of counsel. You could check to see how many cases
get reversed for ineffective assistance, and whether assigned attorneys are
disproportionately represented there. You could check with the bar
associations here and in neighboring counties to see if Cuyahoga County
assigned counsel get disproportionately more disciplinary complaints.
That's the kind of evidence I'd be interested in seeing.
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