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 »


Rocking the boat

I'm going to file a motion for extraordinary fees in that rape trial I won last week, and I'm probably going to piss off a few criminal defense attorneys when I do that.

I'm not sure it's going to meet with any more success than the one I filed after the rape trial I had last month.  I mentioned that I'd asked for about half of what my actual fees would've been worth, at the exorbitant hourly rates of $50 and $60.  (Basically, if I've been assigned to handle your criminal case, I'm getting paid less than what a plumber would make for unclogging your toilet.  And that metaphor works on more than one level.)  The judge denied the motion.

We had a meeting of the board of directors of the CCDLA, the criminal defense bar association, later that week.  (I'm vice-president-elect, which means that if I don't get hit by a bus in the interim, I'll seize power in June of next year.)  I mentioned what happened, and the most vocal response by other board members was that I shouldn't have filed the motion in the first place.  "Don't rock the boat" was the clear message.

The fear isn't that they will pay us less.   We make squat now; the "raise" that we got in fees last month -- the first in a quarter century -- was simply a cost-of-living increase; our fees are still lower than virtually every other urban county in the State. 

The real fear is that they won't pay us at all.  They will simply replace us, expanding the public defenders office to take over all the indigent criminal cases. 

That fear is largely motivated county prosecutor Tim McGinty.  You'd be hard-pressed to find a criminal defense attorney who has had a good experience with McGinty, and the feeling is mutual.  McGinty has taken swipes at the defense bar for years, once blaming the fact his office was bringing crappy cases on assigned attorneys trying to protect their "six-figure incomes."  (Yeah, I didn't get it, either.)  That antipathy leads many to suspect that his true goal is to abolish the assigned counsel system here.

But McGinty made a major strategic error last year, using a consent agreement in Federal court on transferring defendants to county jail to appropriate for himself the role of proposing changes in the assigned counsel system.  He hired a consulting company to do a report on it.

The report backfired.  While it supported McGinty in his claim that assignments should be made randomly, rather than the current system in which the judges decide who to assign, it also recommended that the current division of indigent cases remain the same, and that assigned counsel fees be tripled.  It's going to be difficult for McGinty to credibly claim that assigned counsel be eliminated, when his own report recommends against that, and says we do our job so well that we should get paid a lot more money for it.

Besides, giving all the cases to the public defenders office here doesn't make economic sense.  It would require the hiring of 40 more lawyers, with the attendant support staff and office space.  The best guess is that this would be nearly as expensive as a big boost in assigned counsel fees, and that's before you add on things like pension contributions and other benefits.

So abolition isn't in the cards.  The only thing still in play is the way cases are assigned.  Currently, the judges do that.  McGinty's take on this is that the system is corrupt:  judges assign cases to defense lawyers who contribute to the judge's campaigns.  That argument got no traction last year, but that could change.

Whether that's a good or bad thing is hard to decide.  Judges claim they know the best lawyers to assign, and they're right; the lawyers handling the high-end cases are excellent lawyers.  But there's an "old-boy" network going on here:  Over 50% of the money received for assigned counsel fees went to just 15% of the lawyers who got fees.

There's another aspect, too:  as McGinty's report discussed, when judges assign cases, lawyers lose some measure of independence.  Hence, don't rock the boat.

And as we'll discuss tomorrow, there's a steep price to be paid for doing that.


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