Wednesday 9 February 2011

Public defenders don't have clients' best interests at heart

The Plain Dealer's recent series "Presumed guilty" examined weak or borderline cases that made it all the way through grand jury indictment, trial and acquittal. Most of these cases would never have even gone to the grand jury had the public defender and the defense bar timely performed their constitutional duties and started representing the accused right after charges were filed -- instead of waiting a month to begin.
Attorneys in Cuyahoga County are not assigned as counsel until after indictment and county arraignment. Now that may be quite convenient for the attorney (especially those who benefit at taxpayers' expense from an assignment system to a tune reaching six figures annually), but it's hell on the client sitting in the county jail. And it often means indictments issued that were entirely avoidable.
Justice is all about everyone doing his or her job and filtering out the bad or overcharged cases as they move through our criminal justice system. The first filter comprises the patrol officers on the street who make the initial credibility judgments of the witnesses and the weight of the evidence as they decide whether to make an arrest. Next, their supervisors and the detectives review the case before a city prosecutor approves a felony charge. By the time a case is brought to a county prosecutor and presented to the grand jury, three to six weeks have passed since the arrest. If the grand jury indicts, another two weeks may go by before the accused finally gets an attorney.
That is our antiquated system here in Cuyahoga County.
Assigning the attorney after indictment is as ridiculous waiting to send in the physician until after the patient has been buried. The doctor can't even do a good autopsy.
When the county commissioners brought in best-practice experts to investigate, the Justice Management Institute report concluded that our process and culture were slow, expensive and delivered substandard justice to both the victims and accused. Not surprisingly, we were told that there was a better way.
Copy the simple process that has been proven to work well in more effective court jurisdictions across the nation; analyze the cases and assign defense counsel early instead of late. Do it and Cuyahoga County can cut its disposition time averages dramatically while improving the quality of justice it delivers to the community. Give the parties an early disposition court opportunity to resolve the low-level cases, and half the cases will resolve quickly and never have to go the grand jury.
We studied the recommendations in the JMI report and started the Justice System Reform program. We created a governing board that has included Cuyahoga County Commissioner Tim Hagan as chair (County Executive-elect Ed FitzGerald will assume this role), the sheriff, police chiefs, law directors, court administrators, defense bar, public defenders, city and county prosecutors, municipal and county judges. This is the first time in our history that all these principals ever sat down together as a group. They have worked hard, and the results are amazing. We created a pilot Early Disposition Court proving the "analyze and assign early" process works. This reform has saved taxpayers up to $8 million in prisoner costs alone. The vast majority of the JSR agencies want to expand this EDC to include the entire county.
Ironically, the proponents of protecting the right of the accused to counsel are the county prosecutor, Cleveland chief of police and safety director, and the county administrator. Opposition is led by the public defender and members of the defense bar. Their opposition cannot be in the best interest of the persons it is their duty to represent. However, I look forward to hearing their rationale in this public forum.

Timothy J. McGinty

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