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Making a list

The nice thing about the car ride from here to Columbus is it gives you time to think.  That is, if you can take your mind off the breathtaking vistas that the magnificent landscape in that stretch offers.

The Ohio Public Defenders Commission publishes the standards for attorneys who take assigned criminal cases.  They figured it was time for a re-write, and I was invited to be on the committee to do that.  So that's what I spent the ride thinking about.

The first thing that occurred to me is what standards are supposed to accomplish.  There are two ways to look at it:  the standards are supposed to ensure competent representation, or they're supposed to ensure effective representation.  There's a difference.  The bar for competent representation set by Stickland v. Washington is exceedingly low; my favorite is the line of 6th Circuit cases I discussed here (scroll down to second story) about just how long an attorney can sleep though his client's trial before he is deemed to have provided ineffective representation.  (In fact, you're much more likely to get your conviction reversed because a juror slept through your trial than because your attorney did.)

But you get to the bigger problem:  does it matter whether you're just trying to establish a floor or whether you're shooting for ensuring that every indigent defendant gets the same quality lawyer as he could if he had the money to hire one?

We'll wait now for the laughter to subside.

Okay, you're not going to get the cream of the crop.  For a lot of attorneys, the mark of becoming a successful criminal lawyer is taking your name off the assigned counsel list.  Probably the best you're going to be able to do is establish a general level of competence.

That gets you get back to the question of how do you do that, and that's where you run into problems, too.  The immediate problem with the standards is that the only thing they really require is trial experience:  you don't need any to get on the list, but you do to move up to handling higher-level felonies.  There's nothing wrong with that; there's no substitute for trial experience.  But at the same time, it's kind of ridiculous to have as your only standard something that happens so rarely.  If I had a choice between a lawyer who was good at trial and a lawyer who was good at plea negotiation and sentencing, I'd take the latter, because that's what going to be important 97% of the time. 

The larger problem is how you measure that.  How do you "quantify" what a good lawyer is?  Even the trial metric doesn't really work; just because you tried several cases doesn't mean you're any good at it.

That brings up another subject, one which we didn't address yesterday.  We've talked about lawyers getting on the list.  What about taking them off?  Should there be some evaluation process?  And who does the evaluating?  Judges get a pretty good idea of whether somebody's a good lawyer, but leaving the power of removal from the list in the hands of judges is a little disquieting to me, because I think it chills advocacy:  if you're worried about pissing off the judge and getting bounced off the assignment list, you may start pulling your punches. 

My guess is that we'll work something in about a CLE requirement -- 10 to 12 hours every two years seemed about right -- and maybe lower the trial thresholds a bit.  We might also put in a case experience requirement.  Experience doesn't come just with trials; I'm a lot more comfortable with somebody who's handled twenty-five criminal cases in the past two years than somebody who's handled three.  And we might put in some automatic disqualifiers.  There are some people on the list I know who never try a case:  if it looks like the case is going to go trial, they'll withdraw.  If you haven't tried a case in a couple of years, you probably shouldn't be getting assigned cases.

The net result will probably be to reduce the likelihood of an indigent defendant getting a lawyer who drools during voir dire, but that might actually be a step forward.

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