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Gold Rush

Well, we got our raise.

The last time assigned counsel fee caps were increased in Cuyahoga County, the Berlin Wall was still standing.  The caps limit the amount of fees which can be paid on any particular case, regardless of how much time you spend on it, and the caps are among the worst in the state; only eight counties have lower ones.  The result is that you can spend a week in trial on a third degree felony and get 600 bucks for your trouble.  A lawyer in Dayton, Columbus, or Youngstown would get paid five times that much.

Everybody agreed that the rates were an abomination, even Prosecutor Tim McGinty.  When an independent study commissioned by him recommended that the caps be tripled, he conceded at a public meeting on the study that "anyone who thinks the fees shouldn't be raised doesn't know what he's talking about."  The CCDLA, the local criminal bar, had been working with the judges on the fees even before that, so it was just a matter of time and how much.

So the time's here -- or will be, on March 1.  So how much did we get?

Well, let's not figure on moving up your retirement date, Sparky.

A little inside baseball here.  CCDLA presented a pitch to the judges which would have done the same as McGinty's study.  ( In fact, that's where the guy who wrote McGinty's report got it from:  I personally gave him one of the copies, and he included it verbatim in his report.)  That would have raised caps for 1st, 2nd, and 3rd degree felonies to $3,000 (from $1,000, $750, and $600, respectively),  and raised caps for 4th and 5th degree felonies from $500 to $2,500.  The judges came back with basically doubling the existing caps, and put that to the county council.  That would have increased the court's budget by $5 million, according to the court's bean-counters.  That was too rich for the council's blood, and they cut it by half.  So basically, instead of a 300% increase in fees, we get 50%.

Let's take a closer look.  (The full proposal is here.)  Caps for death penalty cases get the biggest boost:  from $25,000 for two lawyers to $60,000.  The county's actually going to save money here; McGinty has put a stop to his predecessor's promiscuous use of the penalty.  In 2012, Cuyahoga County grand juries returned capital indictments in 32 cases; there were only 94 throughout the entire state, and no other county had more than six.  The new numbers should show us at the latter number, and possibly even below it.

Non-capital homicide cases get slight bumps.  Aggravated murder without death specs is goes from $3,000 per attorney ($6,000 for two) to $4,500 ($8,000).  Plain old murder goes from up from $3,000 to $4,000. 

The "normal" felonies -- cases which basically don't involve the possibility of a life sentence -- go up by about 50%:



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There's a big change, though, in two types of non-homicide cases.  Under the old schedule, child rape was capped at $3,000, and two other offenses which could have led to a life sentence -- rape with a sexually violent predator spec, and kidnapping with the same -- maxed out at $2,000.  A third offense which was subject to a life sentence, gross sexual imposition with an SVP spec, had a cap of $1,600.  Under the new proposal, the maximum fee for defending a child rape is boosted to $4,000, and the cap for or any other offense with a possible life sentence is $3,500. 

But the latter cap also applies to a case with a repeat violent offender or major drug offender spec.  That makes things more interesting, especially for RVO specs, because they're handed out much more frequently; basically, if your client has a prior conviction for a 1st or 2nd degree felony that's an offense of violence, the indictment is going to include that specification, and you're going to be entitled to the larger cap.

Compensation for assigned appeals, a subject also dear to my heart, gets bumped, too.  The max for a death penalty appeal is tripled, to $15,000, although it's not clear if that's per attorney or for both attorneys.  (The Supreme Court rules require that two attorneys be appointed for death penalty appeals.)  Non-capital aggravated murder and murder cases get a bump of $500 (to $4,500) and murder goes up $750, to $2,250.  Other felonies, anything from 1st degree to 5th, get raised $125, to $1,125.    

Several provisions of the appellate fee schedule don't make any sense, and that's carried over.  Under the old schedule, you could get a maximum of $5,000 for voluntary or involuntary manslaughter, or negligent homicide.  (Note that this was the same as for a death penalty case.)  The new schedule doesn't separate out those cases.  Under the old schedule, aggravated vehicular homicide and vehicular homicide paid $750; now, they max out at $1,250.  Which means that you can get more for an appeal of a vehicular homicide, a first degree misdemeanor, than you can for a child rape:  unlike the trial schedule, the appellate schedule makes no distinction for appeals involving life sentences.  One good thing about the appeal schedule is that it raises the hourly rate from $40 to $50.

The fees are scheduled to go into effect on March 1.  That means that any case assigned after that date is subject to the new rates; you're still working for old money now.   You can give your comments to the rules anytime up to January 24 by directing them to Greg Popovich, the court administrator, on the 11th Floor of the Justice Center.


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