Update on assigned counsel reform
I told you I'd talk today about the economics of the
assigned counsel system, as it pertains to the guy getting the
assignments. But I wanted to update you
about the meeting last week of the committee to discuss proposed changes to the
assigned counsel system here in Cuyahoga County. It wasn't nearly the debacle of the first
meeting, which I thought on several occasions might devolve into an exchange of
gunfire. This was more cordial, but it
brought to mind the century-old description of a committee offered by a member
of the British Parliament: "a cul-de-sac
down which ideas are lured and then quietly strangled."
That's not an entirely fitting description. First, it's not clear that this was a
"committee." True, there were probably
about 75 people in attendance, pretty much evenly divided between judges and criminal
defense lawyers. The one sitting on the
dais and conducting the discussion was County Prosecutor Tim McGinty. As I'd explained a few posts before, in the
settlement agreement resolving a lawsuit filed over the failure to provide
speedy initial appearances after arrests, McGinty had "consented" to draw up
policies for the assigned counsel system.
This was a bit like saying, "Okay, I'll consent to take over Poland,"
and more than a few judges and lawyers expressed misgivings over McGinty's even
having a role in all this.
And that's where we come to the ideas part. Like the first meeting, much of this one was
consumed by the debate over "vertical representation": the idea that the same lawyer who represents
a defendant at the initial appearance should represent him throughout the
case. As I explained
before, this is not merely impractical, it's pointless: there's
really nothing for the attorney to do but ask a few questions of the defendant
so that he can make an argument for bond.
During the course of the meeting, it became apparent that McGinty's real
motivation for arguing for this was his belief that it might help resolve cases
at the first appearance. Frankly, a
defense attorney's trying to resolve a case at that point would be malpractice;
there's simply no way that she could have sufficient information to competently
advise a client on that issue at that point.
There are only three real issues to be resolved with an
assigned counsel system: who appoints
the attorneys, who's eligible to be appointed, and how much they get paid. Even McGinty expressed his support of
increasing the compensation, mainly because a contrary opinion would be
indefensible. Attorneys here haven't
seen an increase in their maximum fees -- $1,000 for a 1st degree felony, $500
for a 5th -- since 1989; if the same thing had happened to judges, their
present salary, adjusted for inflation, would be $14,000 a year. Who gets appointed is slightly more
problematic. It doesn't seem like
there's much disagreement that the standards at the top have to be tightened
somewhat, but what it takes to get on the list -- and what it takes to remove
someone -- is a subject that merits some debate.
The real sticking point, though, is how the attorneys get
selected. McGinty's railed for years
against the current system, which has the judge in the arraignment room making
the assignments. His claim that this
leads to corruption is baseless; judges aren't throwing cases because somebody
gives them campaign contributions. Nor are
they appointing unqualified lawyers to handle cases, at least serious ones.
But while corruption isn't a problem, economic favoritism
is. There's no question that for a
variety of reasons -- contributions and insider status among them -- assignments
go more frequently to a select group of defense lawyers. An implicit recognition of this is contained
in Local Rule 33(F), which provides that "during a Judge's two week service in
the arraignment room, no attorney may receive more than four criminal assignments
for four different Defendants." But even
that hasn't proven much of a safeguard in light of the court's switch several
months ago to one-week stints for judges in the arraignment room. I've talked to a number of young lawyers who
haven't gotten an assignment since. "The
judges used to give the insiders all the assignments the first week, and then
I'd get the dregs the next," one told me.
"Now, there aren't any dregs."
There's certainly an argument to be made that this doesn't
matter. After all, the purpose of the
appointed counsel system isn't to spread the wealth, it's to make sure that
competent attorneys are assigned to represent indigent defendants. And it does that, again, at least for the
serious cases. Given that, it's hard to
make an argument for a big change in how counsel are assigned.
Especially if you consider the economics. There are a lot of criminal defense lawyers
who derive a sizable portion of their income from assigned counsel fees. We'll talk about that tomorrow. Honest.
You can trust me.
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