“Ohioans’ right to attorney is muddled” – depends on your perspective, or experience with it!

What “the people” in my opinion need to be aware of is that’s the most important in all this is…The Plea Deal, Professional Courtesy, and Immunity!

These are things that most concern me when you have the NSA leak that EVERYTHING you say that could, can, and will be used against you in the court of law! You know, where perverts of the Constitution will use fear of the system against you when they take out of context what you may have or have not meant by a statement made years ago. Scary if you really think about it or have ever had to hire an Attorney. This 29 year old kid (if you will) call him that is about to find out how this system works! Hopefully an upstanding Attorney will join him in his fight for the public to know what their Government is doing.

Ohioans’ right to attorney is muddled

  • Jun. 10, 2013

MANSFIELD — Ohioans spent nearly $53.5 million last year on attorneys appointed to defend criminal defendants too poor to pay because of a half-century-old U.S. Supreme Court decision that experts say doesn’t guarantee individuals a quality lawyer — or even a sober, awake one.

“It’s not a happy anniversary. It’s not a happy birthday,” said Timothy Young, director of Ohio Public Defender’s Office, last month at a panel discussing Gideon v. Wainwright, which celebrated its 50-year anniversary March 18. “We have failed miserably. We have failed to meet Gideon’s promise of competent, qualified, well-funded counsel.”

Ohio’s system of appointing defense attorneys is flawed in the way it’s funded because 88 counties have 88 different rates and limits on how much can be spent on a case, Young said.

The system’s structure is also flawed because a separate U.S. Supreme Court decision eliminated the incentive for appointing quality lawyers by rubber stamping racist, unconscious and drunken attorneys as perfectly adequate counsel, Young said.

“It doesn’t matter how perfect it is in terms of delivering the service that you want, if you underfund it, it will fail,” Young said. “And the other side of that is also true. You can throw mountains of money at a poorly structured system, and you will still fail to meet Gideon’s promise. The unfortunate truth, in my judgment, is that Ohio has failed on both counts.”

Gideon’s promise is the right to counsel for people facing felony charges who are too poor to pay, specifically those who fall under 187.5 percent of the federal poverty level — less than $44,156 for a household of four. Defendants fill out affidavits that certify their income and net worth.

In June 1961, Clarence Gideon was charged with breaking into a Florida poolroom to steal $5 in change and a few bottles of beer and pop, which constituted a felony offense. He asked for an attorney because he did not have the money to pay for one, but the Florida court said counsel could be appointed for capital cases only.

Gideon defended the case himself, but jurors found him guilty and he was sentenced to five years in prison. Gideon appealed to the U.S. Supreme Court, where a unanimous court found that his rights had been violated.

“That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours,” U.S. Supreme Court Justice Hugo Black wrote in the opinion announced March 18, 1963. Gideon had a new trial and was acquitted.

The right to an attorney later was expanded to juvenile cases and misdemeanor cases where individuals face county jail time. Poor Ohioans do not have a right to counsel for minor misdemeanor cases, such as traffic tickets, because individuals cannot be incarcerated for those offenses; civil cases also are not covered.

Nationally, 80 percent of criminal defendants are too poor to pay, said Amy Borror, spokeswoman with the Ohio Public Defender’s Office. Few attorneys in less populated areas can make a living solely on privately retained clients, because so many defendants can’t pay, said Tom Elwing, who handles a caseload of between 80 and 100 court-appointed criminal cases in Fairfield County.

Individuals facing charges because of drug or mental health problems infrequently have the funds to acquire a skilled attorney without help from the court-appointed system, he added.

Attorneys who take these cases are paid by the county after cases are completed and the state reimburses counties for 35 percent of the bill.

Initially, state lawmakers promised to fund 50 percent of these cases but that amount has dropped, placing more of the burden on county governments. Gov. John Kasich’s proposed budget for the next two years sets the reimbursement rate at 40 percent.

County commissioners determine the rates and fee limits applied to these cases — a subject few commissioners fully understand, causing vast differences in the cost per case across Ohio, Borror said.

“The general feel is this is not an appropriate function for counties to be running,” said John Leutz with the County Commissioners’ Association of Ohio. “The practice of law is kind of out of our bailiwick. We don’t profess to be lawyers.”

On average, attorneys received $465.85 per Ohio case last year, but county figures varied wildly from $203 per case in Noble County to more than $1,000 per case in Gallia, Brown and Erie counties. Hourly fees averaged from $27.09 in Pickaway County to $63.72 in Geauga County, according to data from the Ohio Public Defender’s Office.

The most expensive cases, at more than $19,800 per case, involved defending death penalty defendants. Appeals court cases were the second most expensive at $949 per case, followed by juvenile abuse, dependency and neglect cases, which often necessitate more than one attorney, at $835 per case, according to Ohio Public Defender’s Office numbers.

In Richland County, taxpayers paid more than $1.7 million or $484 per case to defense attorneys last year. The number of cases involving people too poor to pay has dropped 4.7 percent in the past five years, but the cost per case has increased 3 percent, according to Ohio Public Defender’s Office data.

Death penalty cases were the most expensive in Richland County at $10,784 per case, followed by $1,399 per case for appeals and $1,067 per case for juvenile abuse, dependency and neglect cases, which often necessitate more than one attorney, according to the Ohio Public Defender’s Office data.

Attorneys in Richland County cases received an average hourly rate of $52.04, the eighth highest in Ohio.

“The dilemma is that we have 88 different ways to do this and that’s probably constitutionally dangerous,” Leutz said.

The commissioners’ association has pushed for a five-year transfer of fees to the state government with the Ohio Public Defender’s Office presiding over standardizing rates and quality measures. That effort has seen little support, Leutz said.

The way Ohio appoints attorneys also is fundamentally unfair because judges who select the lawyers must approve their bills at the end of the case, Young said.

“If you went to a sporting event, and you found out that one of the teams was hand selected by the referee, and at the end of the game, the referee was going to choose how much to pay those players, you would get up and demand your money back. You wouldn’t stay. And it doesn’t matter how perfectly the referee called the game, not one single error in making a call, you still would fundamentally distrust that system, because it’s flawed in its structure,” Young said.

Because of heavy case­loads and limited resources, the quality of defense an attorney can provide to a paying client versus a court-appointed client is vastly different, Elwing said. In cases where clients are too poor to pay, defense attorneys must prove an expert witness is necessary before receiving the funds to appoint one, he added.

“It’s kind of like a catch-22 situation,” Elwing said.

A 1984 U.S. Supreme Court decision, Strickland v. Washington, set a low bar for the quality of attorney that defendants too poor to pay are entitled to, Young said. That opinion stated defendants could receive a new trial only if they could prove the outcome would have been different with a competent lawyer.

“All manner of just horrible lawyering, just behavior that would shock the conscious of the average citizen has been approved as competent counsel,” said Young, adding that drunken lawyers, lawyers asleep for portions of the trial and racist lawyers have all been approved as effective.

Attorneys are not paid based on the quality of their representation, but rather the number, length and types of cases. The system of paying these attorneys has little oversight or transparency, Young said.

The Ohio Public Defender’s Office is working on a way to refuse reimbursement for attorneys who fall below certain standards or reimburse inefficient counties at lower rates. Currently, the office only can withhold reimbursement from the entire county, which would cost counties hundreds of thousands of dollars and hasn’t been done, Borror said.

The office also is working on administrative code that would prevent individuals fresh out of law school from trying a murder case, Borror said. The hope is that judges appointing attorneys to highly complicated cases would have standards on their experience, but there is no statewide requirement, she said.

Still others would like to see Gideon’s promise extended to civil proceedings involving basic human needs, such as shelter, safety, health and child custody, said Mike Smalz, senior attorney with the Ohio Poverty Law Center. This could be paid through additional dollars to legal aid organizations or a requirement for pro bono work among certain lawyers, he added.

“Poverty is not singular to criminal justice. Poverty affects people’s lives from the moment they wake up to the moment they go to bed at night,” said Young, adding that funding attorneys to help with civil cases would reduce the need for criminal attorneys later. “Being poor drives people to horrible decisions.”

jbalmert@centralohio.com

740-328-8548

Twitter: @jbalmert

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