Monday, August 11, 2008

Unstoppable constitutional right meets immovable political object

Nobody likes criminals. Well, maybe mystery writers. Security system salespeople. Gun manufactures (for the same reasons as the security system.)

You'll never find a politican running on a soft on crime platform. You'll never have a politican suggest that we need to reduce the criminal penalities for crime. If there's an inequity found in the system (such as the sentencing difference between crack cocaine and powder cocaine), then the result is to increase the less harsh result to remove the "inequity."

This wasn't always so. There was a group of politicians, long since gone, realized that there was no area where government regularly places enormous restraints on liberty than in the criminal justice system. But they also realized that people accused of crimes are politically vunerable group. So, they enshrined the most imporant protections in our Constitution, so that they would be almost impossible to be eroded by the political will.

And that is why the Founding Fathers, those bleeding hearts of liberty, enshrined the right of counsel in the Sixth Amendment to the United States Constitution. If only the Framers had the mindset to mandate that the right of counsel in defense was equal to the public resources dedicated to seek the person's incarceration.

In Ohio, indigent defendants can receive their legal counsel from one of two methods. The first is that the County can establish a Public Defender Office where the county employees salaried attorneys solely to serve as defense counsel for indigent defendants. The other is that court can have a list of private attorneys who can be appointed to represent you at a reduced costs (in most areas roughly $40 an hour for out of court to $50/hr. for in-court legal work.) Oh, and there's a cap to how many hours your attorney can charge under this second system. In Butler County, it works out that your court-appointed attorney can spend less than a full work week on your case. Which is great, unless your case goes to trial (which normally takes at least two to three days.)

Ohio law requires that if a county has a Public Defender Office, then it must appropriate as many resources as it does for the county prosecutor's office. So, what the political consequence of this mandated equity? You guess it. Most counties don't have a Public Defender's Office (which I could write a separate post on the problems with them as well.

Lately, two Butler Common Plea judges have criticized the current private appointed system in the county. They have complained that the current system is too expensive, that some of the 50-odd attorneys on the list are inefficient and padding the billing leading to waste and taxpayer fraud leading to criminal investigations and bar complaints. Right now, one attorney has a pending indictment for billing for work other attorneys did (she reportedly left the country for Mexico before she was indicted.)

So the judges (elected officials), want to create a hybrid system. They want to fire all but fourteen of the court-appointed attorneys. Assign two defense attorneys per judge, and pay those attorneys a salary as opposed the hourly rate. The judges claim that this new system will (somehow) save money from the current system and that these 14 attorneys (who will handle over one hundred felony cases a year) will still have time for a part-time private practice despite handling the same number of cases currently managed by over fifty attorneys. Not surprisingly, the Butler County Bar Association has expressed concerns about this plan and expressed downright skepticism about the judges' claimed savings and benefits.

Surprisingly, the local paper, the Hamilton Pulse-Journal, seemed to see right through this proposal for the politics it is. I was impressed with the paper's understanding of this issue:

Butler County's seven common pleas judges say the current system of providing defense attorneys for indigent clients is too expensive, is often abused by attorneys who overbill the county, is inefficient and is just plain "broken." Currently public defenders for felony cases are appointed from a list of about 50 attorneys who are paid $50 an hour for courtroom work and $40 an hour for work outside the courtroom — at an annual cost of about $1.1 million to the county.

Judges Michael Sage and Keith Spaeth are pitching a plan to commissioners for reducing the costs — to about $700,000 annually — and reducing the number of attorneys appointed by the county. Their plan calls for only 14 defense attorneys to be hired on a part-time basis — each earning an annual salary of $46,000 — and to be assigned to specific courtrooms. In other words, each judge would have two public defenders assigned to his court, serving the clients who need legal representation.

Ohio Public Defender Tim Young and Greg Howard, president of the Butler County Bar Association, have criticized the plan on a few points with which we tend to agree:
• Young contends that public defenders' loyalty will be with the judge for whom they effectively work, not with their clients. "If an attorney is handpicked by a judge to service all of the cases in front of the judge, and if the attorney is compensated through a contract approved by the judge, and if the attorney's continued employment is conditioned upon the judge's satisfaction with the attorney, there is more than a fair chance that the attorney will be in a position, whether intended or not, that loyalties will be compromised between the judge and client," he said in a letter to county leaders recently. We think he's correct.
• Howard, in noting that the proposed system "would not provide effective representation for the indigent population of Butler County," said the 14 attorneys would be spread too thin. (The 14 "part-time" defense attorneys will be permitted to continue their private practices on the side. To which cases do you think they will devote the most time and energy?)
• Howard also notes that the judges will not be able to hire the "14 best attorneys on the (current list) ... They're also going to get ones they don't want, that don't have the experience, and they'll have the same problems they're experiencing now." In other words, it's likely indigent clients will wind up being represented by less successful (and presumably less skilled) attorneys who need the work.

That hardly seems fair in a county that already spends twice as much on a Prosecutor's Office.

As they make their decision, county commissioners need to consider the right of an individual — innocent until proven guilty — to receive a fair trial, with legal representation that is not inherently overmatched by the prosecution. The judges' proposal seems to stack the deck against the clients, and in favor of one that's merely easier for the judges to manage.

We understand that judges are trying to avoid the creation of an official public defender's office — by suggesting this "hybrid" plan — but we think commissioners should give thought to whether the time has come to establish such an office. Certainly the current economic times aren't right for adding expenses, but the judges' proposal appears as flawed as the current system.


As much as we appreciate the efforts of the judges and commissioners to control expenses and be good stewards of the taxpayers' money, the bottom line in this discussion must always be providing the best possible and affordable legal representation for those who cannot afford their own attorneys. If the current system is broken, then let's fix it — but not at the expense of those awaiting trial and counting on a fair shake from the county's judicial system.

It's not easy to write that a person who is accused of a felony should have as much in taxpayer resrouces dedicated to his defense if he cannot afford his own counsel than being used for his prosecution. Most papers wouldn't have the courage to point out the obvious: that without the parties on equal footing, a fair trial cannot be had.

Kudos to the Pulse-Journal's editorial board. You would have made our Founding Fathers proud.


Anonymous said...

Anyone who thinks a lawyer can operate an office on $40/$50 per hour is an airhead. Unfortunately, there are too many such airheads in Ohio.

Seneca County closed its Public Defender Office in 2001 because the Commissioners were angry with the head Public Defender who tried to get equal pay for his employees, vis a vis the County Prosecutor. The excuse they used was that it would be "cheaper" to hire private counsel to do the work. (I believe a bridge in Brooklyn, NY was also part of that deal...).

IN any event, I have to agree with your salute to the editors of the Pulse-Journal!

J.W. Fruth
former assistant Seneca County Public Defender

Modern Esquire said...

I was under the impression that they had to allocate as much funds for a Public Defender's Office as they do the Prosecutor's. I guess that doesn't always translate to salaries.

I don't see where the "savings" are going to come from by this "hybrid" plan in Butler County. As a private attorney who used to do appointed criminal work, I don't think that system works. In Hamilton County, there have been a number of studies to call into question the integrity of a Public Defender's system as well.

I think it's time we all publicly declared the obvious. Neither system really works so long as the political pressure is to take the budgetary ax to the public defense of indicted felons- a politically vunerable group.

We see county after country try to "tweak" the system to work by refining it or mixing components of the two systems. And the result is the same, it doesn't work.

The hourly rate paid for appointed attorney is, on average, less than half what those attorneys make in the private practice. The caps on the total amount per case that can billed only works in the cases which lead to quick pleas. To actually try a case, the system isn't priced for that.

In granted a right to counsel, the Framers didn't do so because they felt a person charged with a felony and facing possible imprisonment needed an attorney at the bargaining table; he needs an attorney in the courtroom. For the Founders gave him a right to trial, a right to a jury, a right to confront and the right to compel. But none of these other rights mean anything without the right to counsel.

We need to create a system for indigent defendants which adequately provides the resources for any case to go to trial.

Right now, we simply DO NOT DO that. Whether its a public defenders office, or a private attorney appointment system, that isn't where the unfairness truly lies. The unfairness of the system is that politicians wnat to give as much money and resources to the prosecutors and law enforcement as they can while "saving" as much money as they can to provide for an adequate defense so long as the closest to the absolutely minimum they believe they are "required" to provide under the Constitution.

As a result, politicians are putting their cash jammed fingers down on the scale, creating a system where one side has more resources as the other. And it becomes increasingly hard to say that any conviction under such a system is truly a fair affording of due process.

Anonymous said...

Where do you find the requirement in the law that Prosecutor and Public Defender funding is to be on par? Is it in the Admin. Code or somewhere else? I'd like to have it if you can share the information.


J.W. Fruth