Indigent assignments and the "Top 20"
Tim McGinty is nothing if not persistent. For years, as a common pleas judge here in Cuyahoga County, he railed that the system of assigning counsel for indigent defendants was "corrupt": judges would assign lawyers cases in return for campaign contributions. He took up the cudgel when he became county prosecutor two years ago.
McGinty's argument gained traction this past year when one judge, locked in a heated race for re-election, spent ten weeks, instead of the ordinary one or two, on the arraignment bench doling out case assignments. He fired off a five-page public records request to the court, demanding every scrap of paper concerning the assignment system over the past five years. The resulting brouhaha with John Russo, the court's administrative judge, attracted the attention of Chief Justice Maureen O'Connor, who "persuaded" the parties to kick the whole thing over to the Commission on the Rules of Superintendence. And last week, a sub-committee of the commission heard statements by McGinty, Russo, and two representatives of the Cuyahoga Criminal Defense Lawyers Association, one a current president and one a past president.
The problem with McGinty is that he is perhaps the worst possible advocate for changing the system. First, as prosecutor, he's got skin in the game; his spearheading the assault on the system smacks too much of trying to select his courtroom opponents. Secondly, the "corruption" argument is an easy one to refute. The notion that a judge (or a lawyer) is going to throw a case over a few hundred dollars is absurd.
That's not to say that the system is without its problems, two of them, to be specific. The first is that every study done says that the assignment of lawyers should be independent from the judiciary: you don't want lawyers worrying that too zealous representation of their clients might irritate the judge and lead to fewer assignments in the future. The second is that it leads to favoritism, which is reflected in a simple statistic: in Cuyahoga County, 60% of the assignments go to 20% of the lawyers on the assigned counsel list.
The first is easier to defend. I've often wondered what it would be like to work in a county where you had to worry about pissing off the one or two judges that held court there. That's not a problem in Cuyahoga County, with 34 judges, especially keeping in mind that the judge who assigns you the case isn't the one hearing it. I wound up with three cases in front of McGinty when he was a judge in 2006. It was the first time I'd appeared in front of him in his 14 years on the bench at that point. Luck of the draw. (For the record, he treated me and my client fairly both times.)
The two CCDLA representatives did the best they could on the other point. The fact is that it's ridiculously easy to get on the assigned counsel list for major -- 1st and 2nd degree -- felonies. All that's required is to have been trial counsel in two criminal jury trials and "assistant trial counsel" in two others. "Assistant trial counsel" is a creation of Cuyahoga County, and implements Woody Allen's observation that 90% of life is just showing up: you receive that designation by sitting second chair, except that you don't have to do anything but sit there. Theoretically, you could qualify to defend an attempted murder case by doing a couple of OVI's and watching somebody else try a couple of crackpipe cases. The argument is that by allowing judges discretion as to whom to appoint, you ensure that defendants are represented by an experienced attorney, rather than by one whose name happened to be next on the list.
Whether that will be enough -- or should be enough -- to overcome the equity argument is another matter. And give credit to McGinty on this: he nailed the equity argument by turning it into one on diversity, pointing out that of the 20 lawyers who earned the most from criminal assignments over the past five years, all but one was a white male.
I'm not sure where the smart money is on this. When O'Connor initially intervened, I thought some major change was a done deal: you don't go back to the Chief Justice of the Supreme Court and tell her that her concerns were unfounded. But the problem for the Commission is that they're not writing a rule for Cuyahoga County, they're writing a rule for the whole state. Accommodating what happens in Cuyahoga County, with 34 judges, and Highland County, with one, is going to be a chore.
And Russo seems to have gotten the message that something needs to be done. He indicated he's already addressed the problem with the judge being on the arraignment bench for ten weeks; I'm guessing that a rule is being put in place limiting the judges to two weeks in any year. Other changes have been made. It used to be that lawyers would drop off a card in the room of the judge who'd be handling arraignments that week, and some would go and sit in the arraignment room in the hopes of getting a case. No more; now there's a locked box outside the arraignment for dropping off cards (limited to one a week, the notice said), and attorneys aren't allowed in the arraignment room unless they have been retained.
I'm not sure how that broadens the number of people getting assignments, and in fact, it could serve as a hindrance to young lawyers trying to break into the system. The "top 20" don't need to drop off cards or spend a couple hours in the arraignment room.
My guess is that something's going to happen. The problem isn't "corruption," it's that there's an old boy network, and the same people benefit from it, while the rest are shut out. That has something to do with merit, but not everything, by a good stretch. Something's going to be done about that, because something should.