Power Play
Last August Andrew Dombroff sued Cuyahoga County in Federal
court because he'd been kept in jail for five days after his arrest without a
bond hearing. The result was a consent settlement that gave new County Prosecutor Tim McGinty
the opportunity to do what he's wanted to do for decades: radically change the criminal justice system
here.
McGinty, who spent the twenty years prior to his election as
a common pleas judge and the ten before that as a top assistant county prosecutor, has always had big ideas about how the criminal justice
system should run, ideas solely dedicated to making it run more quickly. There's been progress in that regard; some
reforms he proposed as a judge have been adopted, and the time between arrest
and indictment has shrunk from 90 days to about 25. But he was only one of 34 judges, so
there was a limit to what he could do.
No matter how many times he called his fellow judges corrupt, they just
wouldn't listen to him.
Let's get back to Dombroff.
We'll cut out the sausage-making, and get to the sausage. Dombroff didn't get an earlier hearing because
the policy was to have felony cases go to common pleas court for that. The parties fixed it by having the
municipal courts handle initial appearances for felonies, like they'd done
before the policy. They did it in roundabout
way: since the only parties to the suit
were the county and the sheriff, the judge didn't have the power to tell the
muni court judges anything. Instead, the parties agreed that the Sheriff couldn't accept prisoners into the jail
from a suburb unless the prisoner had had an initial appearance within 48
hours. Problem solved: basically, it meant that any municipality which
didn't provide a hearing within 48 hours was going to pick up the tab for the
defendant's jail stay.
So, end of the matter, right? Well, no; there was another provision in the
consent agreement: the county, "through
the Prosecutor's Office, shall establish a policy to require that a warrantless
arrestee charged with a felony has legal representation at the initial
appearance and is provided with reasonable discovery prior to or at the initial
appearance."
Why the prosecutor should have a role is in ensuring that defendants get legal representation at the initial appearance is anybody's guess, but McGinty wasn't interested in trifles. He contracted with the National Center for State Courts (NCSC) to study the whole indigent defense system here and make a recommendations on how to change it. Dave Steelman, a representative of the NCSC, spent two days talking to a some judges, prosecutors, and defense lawyers (I was one), and other people, and came up with a report containing 25 recommendations for how the criminal justice system here should be changed.
The report has a little bit of everything -- how criminal cases should be assigned, the qualification of assigned counsel, evaluating their performance, among others -- but what it doesn't have is any facts. This wasn't a "study." You're not going to find out whether what happened to Dombroff happened to 10% of all prisoners or 5% or 50%. The report was simply a proposal to implement various changes based on the "best practices standards" of the ABA. (We'll talk about those in much more detail over the next couple weeks.)
That's all well and good, but it boils down to, "here's a
bunch of solutions for problems you may or may not have." This become apparent ten minutes
into the meeting last week of judges, prosecutors, and lawyers to discuss the
report. The entire ninety minutes was
consumed debating a single one of the proposals, "vertical representation": the idea that the same lawyer should
represent the defendant throughout the criminal proceedings, from the initial
appearance on.
Now, in a perfect world, I like that idea. But I don't live in a perfect world; how does
the idea work in mine? It doesn't. There are twelve suburban courts, and it
takes about a half hour to get to any of them.
That means that within a day's notice, an appointed lawyer has to blow
off his morning schlepping out to a muni court and back for $60 an hour,
knowing that he's basically doing it for free because once he spends eight
hours on a case he's maxed out his fee, and he surely would have done that
without the side trip. And there's not a lot
of lawyers who just happen to be free for a whole morning on a day's notice.
And what's the benefit here? To put it charitably, handling an initial
appearance does not require a lawyer to summon the full panoply of his skills
and talents. The next case that gets
reversed for ineffective assistance of counsel at the initial appearance will
be the first. So let's provide a hearing and a lawyer, but not invest a lot of time and effort in making sure the same lawyer handles the case from that point on.
But that's all a sideshow.
The more significant proposals would severely limit or eliminate the
judges' role in determining who's eligible to appear before them as an assigned
lawyer for an indigent defendant, what the qualifications of those lawyers should
be, and how much they should be paid.
That's what McGinty is after. He has always had contempt for the entire
assigned counsel process, believing it completely corrupt, with defense lawyers
"buying" judges through campaign contributions.
I'd sleep easier knowing that Judge X is going to risk shame and disgrace,
not to say a few years in the pokey, to throw a case for me just because I gave him
a hundred bucks so I could eat lukewarm food at his fundraiser, but frankly, I
don't see it happening. And McGinty's fulminations about corruption would probably resonate better if he had a shred of evidence less than a quarter century old to back it up.
While two judges here did go to prison a couple of years ago in the
county corruption debacle, they were corrupted not by lawyers or parties, but
by ... ahem... elected politicians.
The problem, though, is that McGinty is playing chess while the
judges are playing checkers. Getting a
significant portion of thirty-four judges, let alone all of them, on the same
page evokes the hackneyed herding cats metaphor. But the stakes are huge: this is about who's going to call the shots
in a significant aspect of the criminal justice system. If the judges don't stand up for their
independence, there's nobody else who's going to do it for them.
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