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Pay to play?

Remember how embarrassing it was in high school English class when the teacher would pepper you with questions about a book you hadn't read?  That's sort of what it was like for George Tsunis in the Senate hearing on his nomination for ambassador to Norway.  Tsunis had never been to the country, referred to the president it doesn't have (it has a king and prime minister), then described Norway's third-largest party, which is part of the coalition government, as "fringe elements" who "spew hatred."  Then again, nobody pretended that the depth of his knowledge of all matters Norwegian was the reason for his nomination.  In the past several decades, about 30% of all ambassador assignments are made because the nominee was a major campaign donor, and Tsunis had bundled $1.3 million in contributions for President Obama's 2012 presidential campaign.

Tsunis withdrew his nomination after the disastrous Senate hearing, but nobody suggested that Obama had committed a crime in nominating him.  Apparently, at least to County Prosecutor Tim McGinty, the judge who assigned me a criminal case after I gave him $100 at a campaign fundraiser did.

Or might have; that's still kind of murky.  Two weeks ago, McGinty announced that as part of his campaign pledge to "stamp out political corruption," he was issuing a five-page records request for every scrap of paper -- the old-fashioned or electronic kind -- from just about everyone in the Justice Center about the judges' assignments of lawyers for criminal defendants, pursuant to an "investigation" into the courts' "political practice of assigning counsel to indigent criminal defendants through a system of patronage."  This wasn't a recent insight on his part; he's been making the same argument for over a decade, including when he was a judge.

The "investigation" has its own problems.  One defendant has already filed a motion to disqualify McGinty's office from his case, and more such motions are probably coming.  You wouldn't want to be represented by an attorney in a criminal case who was being investigated by the county prosecutor's office.  For the same reason you probably wouldn't be too keen on the attorney who's prosecuting you investigating the judge who's going to conduct your trial and possibly sentence you.  In a later statement, McGinty seemed to back off a bit, saying that whether an investigation is warranted "cannot be determined" until he reviews the records.  In other words, there has to be an investigation to determine whether there should be an investigation.

The more problematic issue is whether any crime has been committed.  The closest fit is the bribery statute, and there is indeed a recent case -- involving a Cuyahoga County judge, no less -- that provides some guidance.  Stephen Terry was appointed to the common pleas bench here in 2007, and enlisted the aid of Frank Russo, the county treasurer and major player in the Democratic party, in his bid for election the following year.  Russo was himself being investigated by the Feds at that time, and wiretaps on his phone caught him being told by a lawyer that the lawyer wanted the bank's motion for summary judgment in a foreclosure case denied.  Terry was the judge in the case, and Russo promised he would call Terry and make sure he did what he was "supposed to do."  Russo called Terry, told him to deny the motion, and that same day Terry did just that, without reviewing the files or motions, or even talking with the magistrate who was handling the case.

Even assuming the worst -- that a judge subsequently assigned a lawyer a criminal case in return for the lawyer's campaign contribution -- that's a far cry from what happened in Terry's case.  In fact, the 6th Circuit pretty much distinguished Terry's situation from the one presented here:  "Without anything more, a jury could not reasonably infer that a campaign contribution is a bribe solely because a public official accepts a contribution and later takes an action that benefits a donor."

That's not to suggest that McGinty's complaint about the system is completely unfounded.  I don't buy the corruption charge, and the lawyers who are appointed must still be on the assigned counsel list, which subjects them to at least limited vetting of their qualifications.  And more than that for the higher level felony list; from what I've seen, there's no basis for claiming that unqualified lawyers are being appointed to represent defendants charged with major crimes. 

But the system is not without its problems.  One is economic fairness:  young lawyers have difficulty getting into the system because many of the same people keep getting the appointments.  A rule was put in several years ago to counter this, limiting a judge from appointing the same lawyer to more than four cases during the judge's two-week stint in the arraignment room, and while it's alleviated this problem, it hasn't come close to eliminating it.

The bigger problem, though, is that lawyers know that their livelihood depends to a certain extent upon judges assigning them cases, and that, however subtly, creates a "go along to get along" mentality.  Obviously, the effect is attenuated; the judge assigning you the case isn't the one handling the case.  Still, word gets around:  you're not going to be getting many assignments if you get reputation for being a difficult lawyer, and for some judges, being a "difficult lawyer" means making them try cases rather than working out pleas.

While the charges of "corruption" are overwrought, there is some legitimacy to complaints about the system.  The problem I have with McGinty's approach is that he's using his power as a prosecutor not to address a criminal problem, but to press a policy argument.  The use of his power in that fashion worries me more than whether some judge is doling out criminal assignments to a lawyer who ponied up a hundred bucks and ate cold food at a fundraiser so he could get an assignment where he'll wind up making about $40 an hour.


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