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


Attorney independence

Here in Cuyahoga County, indigent defendants are assigned a lawyer by the judge who's in the arraignment room that week.  Some judges, very few, just go down the list of lawyers who are on the assigned counsel list one by one.  Other judges pick whoever they want from that list.

County Prosecutor Tim McGinty sees this as a system where criminal defense lawyers make contributions to judge's campaigns in return for criminal assignments.  He's right.  That's exactly what happens.

Whether this is corrupt, as he believes, is an entirely different matter.  It would be one thing if indigent defendants were going to prison because judges were assigning lawyers using campaign contributions rather than competence as a guide.  That's not happening.  If you're charged with a major crime in this county and can't afford a lawyer, you'll be assigned one who's a very good.  Hacks don't get on the major felony list.

Keep in mind this is the system we have.  I'd guess probably 80% of lawyers feel that we'd be better off with merit selection for judges.  But the voters have decisively rejected that every time it's been proposed.  Well, if you want a political system, you're going to have politics in it, and this is part of it.

But there is a down side to that, and that's how we come to John Parker.

John is an excellent attorney; he may not have the flash of some of the top trial lawyers, but you'll find few who are as smart and well-prepared as he is.  He was on the assigned counsel list, of course, and that's what he probably spent half his time doing (though certainly not getting half his income from it), handling around thirty or forty cases a year.  It came as no surprise when he was one of the two lawyers assigned in late 2009 to represent Anthony Sowell on capital charges of kidnapping, raping, and murdering eleven women over a three-year period.

Fees in death penalty cases here are capped at $12,500 per lawyer.  That's not too bad when you're talking about a capital case where the defendant got overly excited while robbing the 7-11 and waxed the cashier.  But it's an entirely different matter when you're talking about crimes which occurred over several years, and a trial which would take over two months.  After a series of meetings with the powers that be, Sowell's lawyers, John Parker and Rufus Sims, worked out a deal:  the fees would be $95 an hour, uncapped.

The case finally went to trial nearly two years later, plodding toward the conclusion everybody knew was coming:  Sowell wasn't nuts, at least in the legal sense, and having 11 dead bodies found in your house is not, as we say in the law biz, consistent with any reasonable theory of innocence.  The guilty verdicts were followed by the other conclusion everyone foresaw.  Cuyahoga juries have been recently averse to dispensing death sentences, but the horrific facts of Sowell's case broke that pattern.

At which point, the judge announced that the fees would be capped at $150,000 for the two lawyers.  Parker wound up making about a thousand dollars for the ten weeks he spent in trial.

And that's all he made during that time, because here's what you else you do when you're in trial:  nothing.  Being in trial all day, day after day, is tremendously mentally taxing.  You don't have an on/off switch; you don't come back to the office at night and figure that you're going to return client's calls or work on those other files that you've got or see if you can drum up some new business.  You come back and prepare for the next day.  And you try not to think about what you could've done in trial that you didn't do, the question that you shouldn't have asked, the objection you should've made, and the hundred and one ways to second-guess yourself.  And then factor in that those second-guesses come with the thought that your client might pay for any mistakes you made with his life.

So while Parker was in trial, his practice went down the toilet.  He told me that the year after the Sowell case was the worst year financially that he'd ever had.

Parker didn't take that lying down.  He sued the county, and after several years of wending its way through the courts, the dispute was resolved through mediation a couple weeks ago. 

In the three years since he raised a stink about the fees, Parker has been assigned less than half a dozen cases. 

We talked yesterday about the fear in some quarters of the criminal defense bar of rocking the boat, of asking for too much in fees and having the county instead assign all the indigent cases to the public defenders.  Not going to happen, for reasons I explained then, but there is a downside to the current assignment system:  while lawyers aren't going to be shut out as a group, an individual lawyer who rocks the boat too much can be shut down. 

We talk about judicial independence, but at least when it comes to assigned cases, there has to be some independence from the judiciary as well; a lawyer has to be able to do what he believes necessary without fearing financial retribution.  I have a lot less problem with the fact that some lawyers are getting assigned a lot of cases than with John Parker getting assigned virtually none.  


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