Volume One: Final Report with Recommendations - Cuyahoga

FELONY INDIGENT DEFENSE ASSIGNMENTS IN CUYAHOGA COUNTY, OHIO

Volume One: Final Report with Recommendations July 8, 2013

David C. Steelman, Esq., Principal Court Management Consultant

Daniel J. Hall, Vice President Court Consulting Services

707 Seventeenth Street, Suite 2900 Denver, CO 80202-3429

(303) 293-3063

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© 2013 National Center for State Courts

This document was prepared under an April 2013 agreement between the County Executive and County

Prosecutor of Cuyahoga County, Ohio, and National Center for State Courts (NCSC), working in consultation with representatives of the Supreme Court of Ohio (SCO), the Ohio State Public Defender’s Office (State PD), the Cuyahoga County Court of Common Pleas (Common Pleas Court), the Cuyahoga County Council (County Council), the Cuyahoga County Clerk of Courts (Clerk of Courts), the Cuyahoga County Public Defender Oversight Commission (County PD Commission), the Cuyahoga County Public Defender’s Office (County PD), the Cuyahoga County Defense Lawyers Association (CCDLA), the Municipal Judges Association (Municipal Judges), and the North East Ohio Municipal Prosecutor's Association (NEOMPA).

The points of view and opinions expressed in this report are those of the author and do not necessarily represent the official position or policies of the SCO, the State PD, the Common Pleas Court, the County Executive, the County Prosecutor, the County Council, the Clerk of Courts, the County PD Commission, the County PD, the CCDLA, the Municipal Judges, or the NEOMPA.

NCSC grants the SCO, the State PD, the Common Pleas Court, the County Executive, the County Prosecutor, the County Council, the Clerk of Courts, the County PD Commission, the County PD, the CCDLA, the Municipal Judges, and the NEOMPA a royalty-free, non-exclusive license to produce, reproduce, publish, distribute or otherwise use, and to authorize others to use, all or any part of this report for any governmental or public purpose.

Online legal research provided by LexisNexis.

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Table of Contents

Volume One: Report and Recommendations

Page

Preface and Acknowledgments .................................................................................................................. v

Executive Summary of NCSC Recommendations ...................................................................................... ix

Chapter I. Indigent Defense Systems ......................................................................................................... 1 1. Indigent Defense System Options ..................................................................................................... 1 2. Indigent Defense System for Cuyahoga County Felonies ................................................................. 4

Chapter II. Felony Indigent Defense Administration in View of National Standards and Best Practices...................................................................................................................................... 10 1. Independence ................................................................................................................................. 10 2. Mixed System of Defender Office and Private Bar ......................................................................... 13 3. Client Eligibility Screening and Timely Appointment ...................................................................... 14 4. Early and Confidential Contact with Client ..................................................................................... 18 5. Attorney Caseload/Workload ......................................................................................................... 19 6. Attorney Qualifications ................................................................................................................... 21 7. Vertical Representation .................................................................................................................. 24 8. Parity of Resources ......................................................................................................................... 27 9. Attorney Training ............................................................................................................................ 30 10. Attorney Performance .................................................................................................................. 32

Appendix. Dombroff Consent Decree Requirements for Future Conduct ............................................. 34

List of Figures and Tables

Page

Figure 1. County-Level Indigent Defense Systems in Ohio ......................................................................... 3

Table 1. ABA Ten Principles of a Public Defense Delivery System .............................................................. 9

Table 2. Best Practices for Indigent Defense Eligibility Determination .................................................... 16

Table 3. Comparison of Cuyahoga County Assigned Counsel Fee Schedule with OPD Guidelines &

Those in Other Urban Ohio Counties .................................................................................................. 29

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Table of Contents

Volume Two: National Standards & Best Practices

Page

Part A. ABA Ten Principles of a Public Defense Delivery System ................................................................ 1

Part B. Brennan Center Guidelines for Indigent Defense Eligibility Determination ................................... 8

Part C. NLADA Standards for the Administration of Assigned Counsel Systems ...................................... 35

Part D. ACCD Best Practices Committee on ABA Ten Principles in Assigned Counsel Systems ............... 48

Part E. NACDL Assigned Counsel Policies .................................................................................................. 66

Part F. Characteristics of Deficient and Effective Contract Defender Systems ........................................ 71

Resource Volume: NLADA Compendium of Standards for Administration of Defense Services

Page

Acknowledgements .......................................................................................................................... iv

Introduction ...................................................................................................................................... 1

State Legislation and Court Rule Parallels to Standards for the Administration and

Performance of Criminal Defense ......................................................................................................... 3

List of Standards and Table of Key Elements ....................................................................................... 7

A. Defense Services Administration and Standards ............................................................................ 11

B. Scope of Representation .............................................................................................................. 14

C. Financial Eligibility ....................................................................................................................... 28

D. Right to Counsel .......................................................................................................................... 52

E. Plan for Defense Services or Public Defender ................................................................................ 57

F. Mixed Systems ........................................................................................................................... 115

G. Public Defender Offices ............................................................................................................. 122

H. Assigned Counsel Systems ......................................................................................................... 130

I. Contract Defense ....................................................................................................................... 158

Appendix: NLADA Defender Training and Development Standards ................................................... 178

http://www.mynlada.org/defender/DOJ/acknow.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1intro.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1key.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1a.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1b.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1c.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1d.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1e.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1f.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1g.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1h.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1i.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1appendix.htm

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Preface and Acknowledgments

In August 2012, the sheriff and general county government of Cuyahoga County, Ohio, were sued

in federal district court on claims of violating the Eighth and Fourteenth Amendments to the US

Constitution as well as Ohio law.1 The plaintiff claimed that the defendants had a policy under which

felony defendants were initially held without bail in municipal jails until they were transferred to

the county jail and held until bail was set by the Common Pleas Court. Reflecting the settlement of the

case in early 2013, a consent decree was issued requiring that, within 48 hours after any warrantless

arrest, the defendant must make an initial appearance before the municipal court of the municipality

of the arrest to determine probable cause and set bond. The consent decree also provided that

“Cuyahoga 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.” (See Appendix for a copy of

the relevant section of the consent decree.)

Engagement of NCSC

Following the issuance of the consent decree and the agreement by the County Council in March 2013

to pay the agreed settlement amounts, the County Executive and the County Prosecutor entered an

agreement in April 2013 with the National Center for State Courts (NCSC) to study indigent defense

assignments in Cuyahoga County felony cases in view of national standards and best practices, and to

make recommendations for the most suitable way to administer indigent defense services for felony

cases.

NCSC Meetings and Interviews in Cuyahoga County

On May 14-15, 2013, the NCSC representative visited Cleveland to conduct meetings and interviews

with the Presiding/Administrative Judge and other judges of the Court of Common Pleas; two

municipal court judges who are members of the Municipal Judges Association; a member of the

Cuyahoga County Council; the County Executive and members of his staff who process fee bills; the

County Prosecutor and some of his senior assistant prosecutors; the Clerk of Courts, a member of the

County Public Defender Commission; the County Public Defender and his senior felony supervisor;

private criminal defense lawyers in the Cuyahoga County Defense Lawyers Association (CCDLA); and

representatives of the North East Ohio Municipal Prosecutor's Association (NEOMPA). NCSC also

solicited the perspective of the Ohio Public Defender, the State Court Administrator, and members of

his staff.

1 See Andrew Dombroff vs. Cuyahoga County, et al., U.S. Dist. Court, N.D. Ohio, Eastern Division, Case No. I :12cv2189

(2013).

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NCSC Draft and Final Reports

Based on those meetings and interviews, along with information from other states and national

sources, NCSC submitted a draft report on May 31, 2013. During the month of June 2013, key

stakeholders had an opportunity to read the draft report and give feedback to NCSC, with an

opportunity for in-person meetings in Cleveland on June 25 and 26, 2013. This report presents the

final results of the NCSC study, with recommendations for improvements where needed.

Factors Bearing on Adoption and Implementation of NCSC Recommendations

There are two questions relating to the recommendations in this report that warrant brief discussion.

First, do they comply with Ohio law? And second, what is the likely impact of adopting and

implementing these recommendations? Each of those questions is addressed here.

Compliance with Ohio Law. The provision of indigent defense services in Ohio is governed by statute –

Ohio Revised Code (ORC) Chapter 120. Knowledgeable reviewers of the May 31 draft version of this

report have confirmed NCSC’s reading of the relevant statutes, that there is no conflict between Ohio

law and the recommendations offered below. For example, the provisions of ORC 120.03, setting forth

what a local public defender commission must do, include no mention of what such a commission may

or may not do in addition to its statutorily required obligations. The absence of mention in the statutes

of the approach recommended by NCSC does not in and of itself constitute a prohibition of it,

especially in view of the fact that there appears to be no conflict with the intent of the State

Legislature.

There are several issues that must be addressed in Cuyahoga County in order for there to be

agreement from the numerous courts, judges, and other stakeholders. Among them are the following:

Each Common Pleas and Municipal Court judge is an independent elected official.

Each judge is given authority by statute to appoint counsel in indigent cases.

Differing views were expressed in NCSC interviews on whether there is any appreciable

relationship between campaign donations to judicial candidates and indigent defense

counsel appointments.

Without a local rule creating and governing a systematic appointment process, each

judge in each court may choose which attorneys he or she appoints and how often he or

she is appointed. There is no statewide or local requirement that all judges make

appointments from the same pool of attorneys.

There is no public defender presence in 12 of the 13 municipal courts in Cuyahoga

County.

Each municipal court may have its own list of appointed or contract counsel.

Unlike most of Ohio, the Cuyahoga County Prosecutor’s Office does not have lawyers

handling felony arraignments in the municipal courts in Cuyahoga County. These are

instead handled by part-time municipal prosecutors for each of the municipalities within

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a court’s geographical jurisdiction, with scheduling based on (a) which municipal law

enforcement agency charged the defendant, and (b) when a local prosecutor is

available.

What is critical is whether there is local will to implement the NCSC recommendations. If Cuyahoga

County stakeholders reach agreement, if County government officials authorize funding for these

recommendations, and if the Cuyahoga County Court of Common Pleas acknowledge and approve

them by journal entry and amendments to Local Rule 33.0, then there need be no barrier to

compliance with the letter and the spirit of Ohio statutes.

National Findings on the Impact of Implementing Indigent Defense Standards. In Cuyahoga County,

there is understandable concern about what might be the potential cost and the “return on

investment” from the adoption and implementation of the recommendations offered in this report.

Given the limits of this engagement in terms of budget and elapsed time, it has not been possible for

NCSC to conduct any kind of cost analysis.

There has been an assessment done, however, of the impact of implementing such indigent defense

standards as those on which the NCSC recommendations in this report are based. In a report

submitted to the US Justice Department in December 2003 under Award No. 1999-IJ-CX-0049 from the

National Institute of Justice, researchers from the National Legal Aid and Defender Association

(NLADA) wrote the following:2

The research found that, depending on the extent of compliance, indigent defense standards can play a substantial role in -

Keeping defender workloads manageable, which allows adequate preparation of cases, earlier entry and disposition, and avoidance of unnecessary jail costs pending appointment and disposition.

Adequate defender-office staffing, including both attorneys and lower-cost non-attorney staff such as paralegals, social workers, investigators and law clerks, which enables assessment of clients' treatment needs and placement in appropriate programs designed to reduce recidivism and protect public safety.

Maintaining adequate levels of defender-office funding and salaries, such as through some type of "parity" relationship with prosecution funding, which reduces staff turnover and its attendant costs.

More uniform quality of public defense services, higher client satisfaction and acceptance of case outcomes, and reduced appeals and reversals.

Reducing the risk of litigation over problems such as excessive workloads, lack of confidential meeting space, non-timely appointment, non-representation at critical stages of litigation, or non-continuous representation

Stratification of attorneys according to levels of skill, training and experience, to be matched to case categories of corresponding complexity and severity.

2 Scott Wallace and David Carroll, Implementation and Impact of Indigent Defense Standards (Washington, DC: NLADA,

2003), Executive Summary, ii-iii, https://www.ncjrs.gov/pdffiles1/nij/grants/205023.pdf.

https://www.ncjrs.gov/pdffiles1/nij/grants/205023.pdf

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Improved and more systematic supervision, evaluation and promotion of attorneys according to clearly articulated performance benchmarks.

More uniform fiscal and management controls, although improvements in fiscal management and case tracking/time management are subject to resource investments in technology.

Efficiencies resulting from the standardization of indigent defense practices and procedures, sharing and networking of technology and information systems (benefits which extend to courts and prosecution when the three entities are networked together), and pooling of buying power.

Relieving the judiciary of responsibility for administering the process of selecting and compensating attorneys, reviewing expenses, and handling complaints from clients, families, prosecutors and other court participants.

Improved coordination and planning capability among the courts, public defense, prosecution and other criminal justice agencies.

Eliminating practices such as ad hoc judicial selection and compensation of defenders, clients being "handed off' from one attorney to another at different stages of a case, attorneys accepting cases which they lack the time or qualifications to handle, and flat-fee or low-bid contracting.

Acknowledgments

NCSC wishes to express our sincere gratitude for the all the hospitality shown to us, and for the

willingness of so many local stakeholders to share their views on how to provide high-quality defense

services for indigent felony defendants in Cuyahoga County.

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Executive Summary of NCSC Recommendations

In the report that follows, NCSC offers 25 recommendations on the administration of felony indigent

defense assignments in Cuyahoga County. Those recommendations are presented together below,

with a reference to the page where each can be found in the report.

Recommendation Page Number NCSC Recommendation Reference

1 In the implementation of the Dombroff consent decree, and in the administration and delivery of felony indigent defense services in general, the judiciary and its justice partners in Cuyahoga County should follow national standards for an indigent defense delivery system, regardless of whether attorneys representing indigent felony defendants are public defenders, assigned counsel, or contract defense attorneys. 7

2 To assure successful implement the Dombroff consent decree and to provide felony indigent defense services in a manner that is just, effective and efficient, the Court of Common Pleas, the County of Cuyahoga, the Cuyahoga Criminal Defense Lawyers Association, and all their justice partners should adopt and achieve compliance with the American Bar Association’s "The Ten Principles of a Public Defense Delivery System." 8

3 Indigent defense assignments in proceedings before the Court of Common Pleas or any Municipal Court in Cuyahoga County should be free of any involvement or influence by the Office of the Cuyahoga County Prosecutor. The Cuyahoga County Executive and the Cuyahoga County Prosecutor should play absolutely no role in the administration of indigent defense services. 11

4 After the commencement date for implementation of the Dombroff consent decree and until June 30, 2014, the judges of the Court of Common Pleas and of the Municipal Courts in the County may retain responsibility for appointment of assigned counsel or the public defender’s office for proceedings before them in all criminal cases prosecuted as felonies in Cuyahoga County. No appointments should be made of any attorneys who are not deemed qualified to be on an approved trial counsel list under Cuyahoga County Court of Common Pleas Local Rule 33.0 to represent felony defendants. 12

5 No later than July 1, 2014, Cuyahoga County Court of Common Pleas Local Rule 33.0 should be amended so that the Court delegates responsibility for administration of the assigned counsel system to the Cuyahoga County Public Defender Commission, expanding the Commission’s role to include general supervision not only of the public defender’s office, but also of assigned counsel and any contract arrangements for the provision of indigent defense services. An administrator and appropriate staff support should be provided for the Commission to ensure that such administrative supervision can be exercised in an effective way. 12

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Executive Summary of NCSC Recommendations (continued)


6 Consistent with Section 120.13 of the Ohio Revised Code, the membership of the Cuyahoga County Public Defender Commission should reflect and embody the independence of the indigent defense function. No member of the Commission should be a sitting judge or an attorney eligible to represent indigent defendants before the Court of Common Pleas or the Municipal Courts in Cuyahoga County. No member of the Commission should be a prosecutor, a law enforcement official, or a designee of either the County Executive or the County Prosecutor. The functions of the County Public Defender Commission should be to set policy and exercise general supervision over the administration of indigent defense services as provided by the County Public Defender, by assigned counsel, and by any contract counsel. The Board should refrain from interference in the conduct of individual cases. 12

7 The implementation of policy and management of assigned counsel and contract services should be done by a full-time administrator licensed to practice law in the County, appointed by and serving at the pleasure of the County Public Defender Commission. The administrator should have a reputation for integrity and should be committed to the ABA “Ten Principles.” While serving as administrator, he or she should not engage in the private practice of law and should be compensated at a level comparable to that of the County Prosecutor or the County Public Defender. 13

8 To assure the integrity of the indigent defense system in Cuyahoga County, and also to protect finite public resources available for the provision of indigent defense services, all felony defendants requesting counsel at public expense should be screened for eligibility at initial appearance, applying written screening criteria adopted by the Cuyahoga County Public Defender Commission in compliance with the standards of indigency in §120-1-03 of the Ohio Administrative Code. 15

9 Absent exceptional circumstances, completion of a signed Ohio Public Defender application form for court-appointed representation form should be required in Cuyahoga County prior to the appointment of counsel for each applicant. Consistent with §120-1-03 of the Ohio Administrative Code, the Ohio Public Defender’s Office should not provide reimbursement to Cuyahoga County in any case for which there is no completed application form or other documentation sufficient to support a determination of indigency. 15

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10 Those screening eligibility for felony defense counsel at public expense in Cuyahoga County should be free of any potential conflict of interest or other ethics violation. Screening for indigency should not be done by a prosecuting attorney, by an individual public defender attorney, by an individual appointed counsel, or by the Common Pleas judge to whom the defendant’s case has been assigned. 15

11 In any felony warrantless-arrest case in which an initial appearance is commenced on the effective date for implementation of the Dombroff consent decree and thereafter through June 30, 2014, notice of appointment should be given promptly, and the assigned attorney should appear on behalf of the client no less than 24 hours later for the completion of the initial appearance. No later than July 1, 2014, practices and procedures should be implemented to provide for eligibility screening to be accelerated so that counsel for the defendant appears at initial hearing within 48 hours after arrest. Such practices and procedures should be developed by the Cuyahoga County Public Defender Commission in connection with those for implementation of recommendation in this report on whether or how vertical representation can be provided for indigent defendants. For the purpose of developing those practices and procedures, the Commission and its staff should work in collaboration with the courts and the other key criminal justice stakeholders. 17

12 As part of the systematic assessment of the quality and efficiency of attorneys representing indigent Cuyahoga County felony defendants (see ABA “Ten Principles of a Public Defense Delivery System,” Principle 10), the sufficiency and consistency with which an attorney meets early and often with his or her client should be one consideration among others. Consistent failure without justification to meet early with clients should be among the potential grounds contributing to having an attorney be removed from the Court of Common Pleas lists of approved trial counsel. 19

13 Before December 31, 2014, the Cuyahoga County Public Defender Commission should arrange for the Office of the Ohio Public Defender conduct an appraisal of the meeting space available in county- and municipal-level jails, courthouses, and other places in Cuyahoga County where indigent defendants may confer in confidence with counsel. With the support of other criminal justice stakeholders, the Defender Commission should advocate for funding to support the implementation of any improvements suggested by the Ohio Public Defender as a result of that appraisal. 19

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14 The provision in Local Rule 33.0 that the Office of the Cuyahoga County Public Defender should be assigned 35% of the assignments for indigent felony defense cases should be amended. The local rule should provide instead that the Cuyahoga County Public Defender Commission and the County Public Defender should regularly review the workloads of individual public defender attorneys in view of applicable workload standards, adjusting the allocation of assignments among public defenders and private assigned counsel in a manner to promote due process and quality representation through optimal use of the available pool of qualified public and private criminal defense attorney resources in the County. 21

15 At the direction of the Cuyahoga County Public Defender Commission, the administrator of the Cuyahoga County assigned counsel system should develop standards relating to caseload and workload size limits for attorneys who desire to receive appointments in indigent felony cases, as well as procedures through which attorneys whose workloads have become excessive can be relieved of caseload responsibilities that they cannot competently meet. The administrator should provide notice to attorneys on the lists of approved trial counsel of the caseload and workload standards and procedures approved by the Commission, and of the attorneys' obligation not to accept more work than they can effectively handle. The administrator should keep records of assignments made to individual attorneys in a manner that allows the administrator to avoid assigning an excessive number of cases to any attorney. 21

16 Local Rule 33.0, which provides that attorneys seeking indigent defense assignments must have the requisite experience and qualifications as recommended in this report, should be amended to provide that all attorney applications to be included on an approved trial counsel lists should be reviewed by the Cuyahoga County Public Defender Commission, which should make the final determination. The approved trial counsel lists should remain in effect for a two-year period, and any attorney whose name appears on the approved trial counsel lists should be required to file an application for renewal to serve as appointed counsel to sustain eligibility. Any lawyer who fails to file for renewal within prescribed time limits should be removed from the new approved trial counsel lists. Reinstatement should require the filing of a new application, subject to final approval by the County Public Defender Commission. 21-22

17 Prior to assuming expanded responsibility for administrative oversight of indigent defense services on or before July 1, 2014, the Cuyahoga County Public Defender Commission should provide means for court appointments of attorneys to represent indigent felony defendants to be made from an appropriate list either randomly or by fixed rotation, and Local Rule 33.0 should be amended accordingly. No attorney

should be appointed in a case unless his or her name appears on the list of 22

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17 (contd.)

approved trial counsel for the specific kind of felony offense charged in the case for which the defendant has requested indigent defense representation, as currently designated in Local Rule 33.0: (1) murder cases; (2) major felony cases; (3) fourth- and fifth-degree felonies; and (4) cases involving defendants with mental illness or developmental disability. 22

18 Cuyahoga Local Rule 33.0 should be amended to refine the qualifications for attorney eligibility to be on the lists of approved trial counsel. More specifically, the qualifications set forth in the rule should be the following:

Qualifications for capital cases should be those set forth in Rule 20 of the Rules of Superintendence for the Courts of Ohio.

For cases with a potential life sentence (“life case” list of approved trial counsel), an attorney must have previously served as lead or co-counsel in two “life case” jury trials, or as trial counsel in eight felony jury trials, at least four of which must have been first- or second-degree felonies.

For first- or second-degree felonies (“major felonies” list), an attorney must have previously served as counsel in two major felony jury trials or five felony jury trials.

For third- , fourth- , or fifth-degree felonies (“other felonies” list), an attorney must have previously served as counsel in three felony jury trials.

Counsel can qualify for the “other felonies” list by acting as assistant counsel, serving as non-participating counsel at three felony jury trials from the beginning of jury selection to the beginning of jury deliberations.

Participation as lead counsel in a civil jury trial, or as trial counsel in a criminal misdemeanor trial or a felony trial to the bench, should count as “one-half of a trial” for the above qualifications.

Participation in an approved mentoring program, such as that proposed by the Cuyahoga Criminal Defense Lawyers Association (CCDLA), with the mentored attorney participating in all facets of one case, as well as serving as assistant counsel at a trial, should qualify an attorney for the “other felonies” list.

Attorneys seeking to be on the “mental health” list should be required to attend the mental health training seminar provided by the Common Pleas Court.

To be placed and remain on a list, an attorney must have acquired at least 12 hours of continuing legal education credits related to criminal law or provided by a criminal defense bar association during the previous two years. 23

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19 As a temporary expedient in the implementation of the Dombroff consent decree, each municipal court judge assigning counsel for a warrantless felony arrest defendant who has been found indigent should simply appoint counsel who are (a) the list of approved trial counsel for the level of felony offense being charged, and (b) able to be present for the scheduled initial appearance at that municipal court location, with continuing vertical representation only if possible. As of July 1, 2014, however, the appointment of counsel at initial appearance for a warrantless felony arrest defendant should, except in unusual circumstances, carry the expectation that the same appointed attorney will provide continuing representation through all subsequent court events. 25

20 In all capital murder, aggravated murder, felony life, and major felony cases with a warrantless arrest, initial appearance should be held in downtown Cleveland within the time requirements of the Dombroff case before a judge of the Court of Common Pleas.

In all other warrantless arrest felony cases, initial appearance and preliminary hearing should be held by a judge of the municipal court serving the municipality where the arrest was made. In all but the most unusual circumstances, preliminary hearing in such cases should not be preempted by a grand jury indictment. Instead, there should be a determination at preliminary hearing by a municipal court judge whether there is probable cause in any such case for the defendant to be held for felony prosecution in Common Pleas Court. 25

21 No later than January 1, 2014, the Common Pleas lists of approved trial counsel should include an indication by each listed attorney of the municipal courts in which he or she is prepared to take assignments to represent felony warrantless arrest defendants found indigent in municipal court initial appearances. When the Cuyahoga County Public Defender Commission assumes responsibility on or before July 1, 2014, for general supervision of all indigent defense services in the county, the Commission should direct that an assessment be made of the extent of any practical problems in providing indigent defense representation in keeping with the Dombroff consent decree at initial appearances throughout the county. Unless there is a sufficient number of private attorneys on appropriate lists of trial counsel who are willing and able to appear as assigned counsel in such proceedings in any suburban municipal court, then the Public Defender Commission should by December 31, 2014, begin making arrangements for public defender attorneys or contract counsel with suitable qualifications to take assignments in such courts. 26

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22 Before December 31, 2014, the Cuyahoga County Public Defender Commission should arrange for the Office of the Ohio Public Defender conduct an appraisal of the extent to which there is parity of resources between the County Prosecutor’s Office indigent defense providers (both the County Public Defender’s Office and private counsel when they are appointed to represent indigent defendants). With the support of other criminal justice stakeholders, the Defender Commission should advocate for funding to support the implementation of any improvements suggested by the Ohio Public Defender as a result of that appraisal. 27

23 Compensation for assigned counsel in Cuyahoga County should be brought into line with the OPD guidelines and the compensation rates provided in most major urban counties of Ohio. Hourly rates for non-capital cases should be maintained at their present level of $60 an hour for in-court time and $50 an hour for all non-capital offenses. Counsel in capital cases should be paid at the rate of $90 per hour, whether in court or out of court, and the maximum capital murder fee should be raised to $75,000 ($37,500 per attorney). It should be raised to $8,000 ($4,000 per attorney) in murder and non-capital aggravated murder cases. For non-murder cases with a potential life sentence, it should be raised to $5,000; to $3,000 for major felonies (felony 1, 2 and 3); and to $2,500 for other felonies (felony 4 and 5).

Extraordinary fees should no longer be applicable to representation of a defendant in more than one case. Instead, the attorney should be compensated up to the maximum amount for the representation in each case. Extraordinary fees should also be paid, at a rate of $300 per day, and only to the extent that the applicable maximum has been exceeded in the event of a trial lasting more than (a) 10 days for non-capital aggravated murder, murder, and any other case with a potential life sentence; (b) seven days for major felonies; and (c) five days for other felonies. 29

24 There should be a well-defined indigent defense education program in Cuyahoga County, operating under the aegis of the Cuyahoga County Public Defender Commission in collaboration with the courts, the Ohio Public Defender, the Cuyahoga Criminal Defense Lawyers Association, and other critical stakeholders.

(1) The administrator of the assigned counsel system should provide a Local Rule 33.0 should provide for the following as elements of attorney training associated with initial or ongoing qualification to be on lists of approved trial counsel: (a) The requirements to qualify for the “other felonies” list should

include the option of participation in an approved mentoring 31

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24 (contd.)

program, such as that proposed by the Cuyahoga Criminal Defense Lawyers Association (CCDLA), with the mentored attorney participating in all facets of one case, as well as serving as assistant counsel at a trial.

(b) Attorneys seeking to be on the “mental health” list should be required to attend the mental health training seminar provided by the Common Pleas Court.

(c) To be placed and remain on a list, an attorney must have acquired at least 12 hours of continuing legal education credits related to criminal law or provided by a criminal defense bar association during the previous two years.

(2) The Cuyahoga County Public Defender should maintain a systematic approach to the training of defender attorneys, at least equal in scope to that in the County Prosecutor’s Office, including at least the following features: (a) participation in an in-house orientation program for new staff

attorneys; (b) acquisition of at least 12 hours of continuing legal education credits,

through participation in accredited local, statewide, or national programs providing in-service training programs so that all attorneys are kept abreast of developments in criminal law, criminal procedure and the forensic sciences, and achieve compliance with Local Rule 33.0; and

(c) investigative staff participation in appropriate training. 31

25 Not later than December 31, 2014, the Cuyahoga County Public Defender Commission should publish criteria for the evaluation of performance by lawyers providing indigent defense services. Those for public defender attorneys should be as drafted by the Cuyahoga County Public Defender, and those for assigned counsel should be as drafted by the administrator of the assigned counsel system. The professional performance of Cuyahoga County public defender staff attorneys should be subject to systematic supervision and evaluation based upon publicized criteria. Supervision and evaluation efforts should be individualized, and should include monitoring of time and caseload records, review and inspection of case files and transcripts, in-court observation and periodic conferences. For assigned counsel, the broad criteria of performance used in performance evaluations should be those of a skilled and knowledgeable criminal lawyer. The administrator of the assigned counsel program should develop a system to elicit periodic regular inputs from judges, prosecutors, other defense lawyers and clients. 32-33

Felony Indigent Defense Assignments in Cuyahoga County, Volume One

National Center for State Courts Page 1

Chapter I.

Indigent Defense Systems

Under the Sixth Amendment to the U.S. Constitution, there is a right for criminal defendants to

be represented by counsel. In a landmark decision, the U.S. Supreme Court held in Gideon v.

Wainwright, 372 U.S. 335 (1963), that a defendant charged with a felony in a state court had

the right to be represented by counsel at public expense if he or she could not afford to retain

counsel. In Argersinger v. Hamlin (407 U.S. 25 (1972), the Supreme Court then extended the

right to counsel at public expense to defendants facing the prospect of any imprisonment,

whether for a felony or a misdemeanor; and in Alabama v. Shelton, 535 U.S. 654 (2002), the

Court held that indigent defendants are entitled to court-appointed counsel even when facing a

suspended jail term.

More recently, in answer to the question of when in a criminal prosecution the State must

guarantee that an accused receives a lawyer’s in-court representation, the U.S. Supreme Court

ruled in Rothgery v. Gillespie County, 554 U.S. 191 (2008), that representation must be provided

once a prosecution begins and a defendant appears before a judicial officer for a determination

of bail. The Court concluded that an accused’s right to counsel attaches at the initial

appearance before a court, and that the State cannot unreasonably delay assigning a lawyer to

an indigent defendant. The Rothgery decision provides an important foundation for the

requirement in the 2013 Dombroff consent decree that Cuyahoga County must assure that a

defendant arrested without a warrant on felony charges must have legal representation at his or

her initial appearance before a judicial officer in one of Cuyahoga County’s 13 municipal courts.

1. Indigent Defense System Options

Although the U.S Supreme Court has concluded that the constitutional right to defense counsel

applies in most criminal proceedings in state and local courts, there has been no basis for it to

dictate the system by which the states must provide indigent criminal defense services. As a

result, the states have taken different approaches to meet this responsibility. In the broadest

terms, there are three primary models:

1. A public defender system, with salaried attorneys and support staff, whether through a

public or private nonprofit organization, or as direct government employees of the state

or county. Larger offices employ social workers and investigators on-staff.

2. An assigned counsel system, involving Individual criminal defense attorneys who have

agreed to have their names placed on a list from which judges or an assigned counsel

administrator may appoint them as needed on a case-by-case basis, with the lawyers

typically being paid either by the hour or by the case.



3. A contract system, under which private attorneys, bar associations, law firms, groups of

attorneys, and nonprofit corporations provide indigent services for a specific dollar

amount and time period based on a legal agreement with a state-level, county, or other

local governmental unit.

Having public defender offices is widely used for the provision of indigent defense services,

with administration and funding at either state or local levels. In 2007, there were 22 states

that provided state-level administration and funding, while the remaining 27 states (as well as

the District of Columbia) provided funding and administered at the county or municipal level.3

The assigned counsel model is also widespread, being a primary method for delivery of defense

services in about 50% of the counties in the United States.4

Yet the provision of indigent defense can also involve a mix of programs throughout the same

state. It is almost always necessary, for example, to have state or county public defender

offices augmented by contract or assigned counsel to deal with conflict cases or to address

heavy attorney workloads. Some states have no centralized means to provide indigent defense,

so that some counties use public defenders and others employ contract attorneys or assigned

counsel.

With over 250,000 indigent defense cases in fiscal year 2012, Ohio presents an example of the

variations at the local level in the provision of indigent defense. In addition to the Office of the

Ohio Public Defender, its system consists of county public defender offices, agreements with

non-profit corporations, and assigned counsel systems. The defense system in each county is

determined by its County Council or Board of County Commissioners. The Ohio state map in

Figure 1 below shows how the different counties provide for indigent defense.

For Cuyahoga County, Figure 1 shows that indigent defense is provided by a County Public

Defender’s Office. Yet that is misleading. As shown in a report by the Cuyahoga Criminal

Defense Lawyers Association (CCDLA), data for the latest year available indicate that of all

criminal defendants arraigned in the Court of Common Pleas last year (11,210 defendants),

78.3% were found to be indigent. The attorneys in the County Public Defender’s Office handled

more felony cases than any other indigent defense service provider. Yet the County Public

Defender was assigned to represent 33.9% of all indigent defendants. The remaining 66.1%

were assigned to private criminal defense attorneys by the judges of the Court of Common

3 See Donald Farole and Lynn Langton, County-Based and Local Public Defender Offices, 2007 (Washington, DC:

Bureau of Justice Statistics, NCJ 231175, 2010), http://bjs.gov/content/pub/pdf/clpdo07.pdf, and Langton and Farole, State Public Defender Programs, 2007 (Washington, DC: Bureau of Justice Statistics, NCJ 228229, 2010), http://bjs.gov/content/pub/pdf/spdp07.pdf. 4 See Volume Two, Part C, NLADA Standards for the Administration of Assigned Counsel Systems, Introduction.

http://bjs.gov/content/pub/pdf/clpdo07.pdf

http://bjs.gov/content/pub/pdf/clpdo07.pdf



Figure 1. County-Level Indigent Defense Systems in Ohio5

5 Source: Office of the Ohio Public Defender, “County Indigent Defense Systems,”

http://www.opd.ohio.gov/countypd/countypd.htm (as downloaded May 24, 2013).

http://www.opd.ohio.gov/countypd/countypd.htm



Pleas from a list of those who have met the minimum qualifications for receiving such

appointments.6

It is instructive to compare the allocation of cases in Cuyahoga County between the public

defender office and assigned counsel with that in other large urban counties in the United

States. According to the Office of Justice Programs in the U.S. Justice Department, a study of

the 100 most populous counties in the United States found that 82% of indigent clients were

handled by public defenders, 15% by assigned counsel attorneys, and 3% percent by contract

attorneys.7

In terms of the allocation of indigent cases between public defenders and assigned counsel, the

contrast between the data for Cuyahoga County and those for the 100 most populous counties

suggests that public defender attorneys in other large counties take on a much larger share of

the indigent defense representation than they do in Cuyahoga County. In many other large

urban counties, a decision appears to have been made that having indigent defense services

provided by a public defender office is preferable to having an assigned counsel system. Should

Cuyahoga County follow the example of many other large urban counties and change its system

so that the lawyers in its County Public Defender Office would represent a much larger portion

of all indigent felony defendants?

2. Indigent Defense System for Cuyahoga County Felonies

To answer such a question with confidence for Cuyahoga County and its criminal justice

community would require a detailed analysis of costs and benefits going far beyond the scope

of the study reported here. Yet it is possible to consider the results of at least some efforts that

have been undertaken to find an answer.

Some writers have suggested that public defenders might obtain better outcomes than either

assigned counsel or private retained counsel because of having a closer day-to-day working

relationship with prosecutors, while others have expressed concern that public defenders might

become co-opted by being part of a close working group with prosecutors in the courtroom

work environment.8 Since Gideon, there has been a host of literature presenting the results of

6 See CCDLA, “Indigent Defense in Cuyahoga County: A Proposal for Change” (2013), page 1.

7 Office of Justice Programs, “OJP Fact Sheet: Indigent Defense” (December 2011),

http://www.ojp.gov/newsroom/factsheets/ojpfs_indigentdefense.html. (as downloaded on May 3, 2013). Cuyahoga County is one of those 100 most populous counties. 8 Compare Dean Champion, “Private Counsels and Public Defenders: A Look at Weak Cases, Prior Records, and

Leniency in Plea Bargaining,” 17 J. Crim. Justice 253 (1989), with Roy Fleming, Peter Nardulli, and James Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (Philadelphia, PA: Pennsylvania University Press, 1992).

http://www.ojp.gov/newsroom/factsheets/ojpfs_indigentdefense.html



efforts to compare outcomes for defendants based on how they were represented. Examples

include the following, shown in chronological order:9

In a 1971 publication, Morton Gitelman found that while the performance of particular lawyers did not differ depending on whether they were appointed or retained, defendants with appointed counsel had worse outcomes overall than defendants with retained counsel.10

In 1973, Stuart Nagel generally found that retained counsel provided some benefits in outcomes compared to public defenders.11

In 1975, Robert Stover and Dennis Eckart found generally comparable performance between public defenders and private attorneys.12

In 1983, Joyce Sterling reported a finding that defendants with retained counsel did not obtain better outcomes than those with public defenders or appointed counsel.13

In 1985, Pauline Houlden and Steven Balkin found that the method of assigning counsel made no difference in outcomes, and they found little difference in performance of private and public attorneys.14

In 1991, Floyd Feeney and Patrick Jackson conducted an overview of then-existing empirical studies of the effect of counsel types on outcomes and noted that conclusions were mixed with approximately half of the studies finding no difference between counsel types.15

In 1992, Roger Hanson and colleagues found no statistically significant differences in outcomes between defendants represented by indigent defense providers compared to those who had privately retained counsel.16

In 2005, Morris Hoffman and colleagues reported from an econometric study of all felony cases filed in Denver, Co, in 2002, that public defenders achieved poorer outcomes than their

9 This listing is largely derived from James M. Anderson and Paul Heaton, “Measuring the Effect of Defense Counsel

on Homicide Case Outcomes” (U.S. Department of Justice Award Number 2009-IJ-CX-0013, December 2012) https://www.ncjrs.gov/pdffiles1/nij/grants/241158.pdf., also disseminated as “How Much Difference Does the

Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes,” RAND Working Paper, WR-870-NIJ (2011), 122 Yale L. J. 154 (2012). 10

Morton Gitelman, “The Relative Performance of Appointed and Retained Counsel in Arkansas Felony Cases-An Empirical Study,” 24 Ark. L. Rev. 442 (1971). 11

Stuart S. Nagel, “Effects of Alternative Types of Counsel on Criminal Procedure Treatment,” 48 Ind. L. J. 404 (1973). 12

Robert V. Stover and Dennis R. Eckart, “A Systematic Comparison of Public Defenders and Private Attorneys,” 3 Amer. J. of Crim. Law (No. 3) 265 (1975). 13

Joyce S. Sterling, “Retained Counsel versus the Public Defender: The Impact of Type of Counsel on Charge Bargaining,” in William F. McDonald, eds., The Defense Counsel (Thousand Oaks, CA: Sage, 1983), pp. 167. 14

Pauline Houlden and Steven Balkin, “Costs and Quality of Indigent Defense: Ad Hoc vs. Coordinated Assignment of the Private Bar within a Mixed System,” 10 Justice System J. 159 (1985), and “Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract vs. Ordered Assigned Counsel,” 76 J. Crim. Law & Criminology (No. 1) 176 (1985). 15

Floyd Feeney and Patrick Jackson, “Public Defenders, Assigned Counsel, Retained Counsel: Does Type of Defense Counsel Matter?” 22 Rutgers L.J. 361 (1991). 16

Roger A. Hanson, William E. Hewitt, Brian J. Ostrom, and Christopher Lomvardias, Indigent Defenders Get the Job Done and Done Well (Williamsburg, VA: National Center for State Courts, 1992).




privately retained counterparts, measured by the actual sentences defendants received. Yet they discovered a large cohort of “marginally indigent” public defender clients, apparently capable of hiring private counsel if the charges against them were sufficiently serious, who tended to have less defensible cases. These defendants could find the money to hire private counsel when the charges were sufficiently serious, or when they were innocent, or when they thought they had a strong case.17

In 2010, Richard Hartley and colleagues found no difference in outcomes between defendants represented by public defenders as opposed to privately retained lawyers in Cook County, Illinois.18

In 2010, Jennifer Shinall looked at the effect of prosecutors as well as defense counsel and concluded that skill of prosecutors made more difference in the outcomes than defense counsel.19

In 2011, Thomas Cohen concluded that defendants with appointed counsel have less favorable dispositions than defendants with either private counsel or public defenders.

In 2012, James Anderson and Paul Heaton found from a study of murder cases in Philadelphia that public defenders have a 19% lower murder conviction rate than private assigned counsel; that they reduce the probability that their clients would receive a life sentence by 62%; and that public defender clients have a 24% lower expected time service in prison.20

NCSC Recommendations. From all the conflicting results from such studies as those reported

here, the National Legal Aid and Defender Association (NLADA) concludes that none of the

three primary models for the delivery of indigent defense services (public defender, assigned

counsel, or contract counsel) is inherently better than the others, and that effective service

delivery almost always requires a mixed system in order to address conflicts and other practical

problems.21

For felony indigent defense in Cuyahoga County, NCSC echoes that sentiment. Instead, it is

more important that the administration of indigent defense services follow national standards

for effective service delivery.

17

Morris B. Hoffman, Paul H. Rubin, and Joanna M. Shepherd, “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent’,” 3 Ohio State J. Crim. Law 223 (2005), http://moritzlaw.osu.edu/osjcl/Articles/Volume3_1/Commentary/Hoffman_3-1.pdf. 18

Richard Hartley, Holly Ventura Miller, and Cassia Spohn, “Do You Get What You Pay For? Type of Counsel and its Effect on Criminal Court Outcomes,” 38 J. Crim. Justice 1053 (2010). 19

Jennifer Bennett Shinall, “Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes,” 63 Vanderbilt L. Rev. 267 (2010). 20

Anderson and Heaton, supra note 7. 21

See NLADA, “Understanding the debate about full-time public defender offices or appointment of private attorneys,” by Phyllis E. Mann (January 28, 2011), http://www.nlada.net/library/article/na_understandingpdandassignecounsel.

http://moritzlaw.osu.edu/osjcl/Articles/Volume3_1/Commentary/Hoffman_3-1.pdf

http://www.nlada.net/library/article/na_understandingpdandassignecounsel



Recommendation 1. In the implementation of the Dombroff consent decree, and in the administration and delivery of felony indigent defense services in general, the judiciary and its justice partners in Cuyahoga County should follow national standards for an indigent defense delivery system, regardless of whether attorneys representing indigent felony defendants are public defenders, assigned counsel, or contract defense attorneys.

NLADA advises that each of the three primary indigent defense models can be successfully

employed to provide quality representation in a cost-effective manner, as long as national

standards are followed.22 After Gideon, the American Bar Association (ABA) was the first

organization to publish standards for the provision of criminal defense services, adopting the

ABA Standards for Criminal Justice, Providing Defense Services (now in a third edition) in 1967,

followed by The ABA Standards for Criminal Justice, Defense Function in 1971.

The President's National Advisory Commission on Criminal Justice Standards and Goals adopted

Chapter 13, The Defense, in 1973, and the National Study Commission on Defense Services

adopted its Guidelines for Legal' Defense Systems in the United States in 1976. NLADA adopted

its Guidelines for Negotiating and Awarding Contracts for Criminal Defense Services in 1984;

Standards for the Administration of Assigned Counsel Systems in 1989, and Performance

Guidelines for Criminal Defense Representation in 1995. For assigned counsel systems, the

National Association of Criminal Defense Lawyers (NACDL) published updated Assigned Counsel

Policies in 1997).

Together, these standards identify the minimum requirements for legal representation of

criminal defendants. They are written for the most part for lawyers who provide defense

services, however. To meet the needs of governmental officials or policymakers who design

the systems by which these services are delivered, in 2002 the ABA House of Delegates adopted

"The Ten Principles of a Public Defense Delivery System." Based on a paper by an appellate

defender and an NLADA representative, entitled “The Ten Commandments of Public Defense

Delivery Systems,”23 the ten ABA principles “provide new policy targeted specifically to the

designers and funders of public defense delivery systems, giving them the clear and concise

guidance that they need to get their job done.”24

22

Ibid. 23

James R. Neuhard, Director, Michigan Appellate Defender Office and Scott Wallace, Director, Defender Legal Services, NLADA, “The Ten Commandments of Public Defense Delivery Systems” [published as an Introduction to Compendium of Standards for Indigent Defense Systems: A Resource Guide for Practitioners and Policymakers (Office of Justice Programs/Bureau of Justice Assistance, U.S. Department of Justice, 2001)], available online at http://www.nlada.org/Defender/Defender_Standards/Standards_Attach6. 24

L. Jonathan Ross, Chair, ABA Standing Committee on Legal Aid and Indigent Defendants, Report to ABA House of Delegates, February 2002, reproduced as Appendix 6 in NLADA, The Implementation and Impact of Indigent

http://www.nlada.net/jseri/standards-for-the-delivery-of-public-defense-services

http://www.nlada.net/jseri/standards-for-the-delivery-of-public-defense-services

http://www.ojp.usdoj.gov/indigentdefense/compendium/welcome.html

http://www.nlada.org/Defender/Defender_Standards/Standards_Attach6



Recommendation 2. To assure successful implement the Dombroff consent decree and provision of felony indigent defense services in a manner that is just, effective and efficient, the Court of Common Pleas, the County Council, the Cuyahoga County Criminal Defense Lawyers Association, and all their justice partners should adopt and achieve compliance with the American Bar Association’s "The Ten Principles of a Public Defense Delivery System."

The ABA “Ten Principles” are presented in Table 1, and commentary on them is provided in

Volume Two, Part A. They are used by NCSC in Chapter II of this report as a framework for

analysis and recommendations. The recommendation in this report that Cuyahoga County

adopt and follow the ABA “Ten Principles” is not the first time that such a recommendation has

been made for a large urban trial court in Ohio. In a 2008 report, NLADA recommended their

adoption by the Ohio State Public Defender Commission, and if not by Hamilton County as a set

of local standards.25

Defense Standards, by Scott Wallace and David Carroll (Washington, DC: National Institute of Justice, Award No.

1999-IJ-CX-0049, December 2003), https://www.ncjrs.gov/pdffiles1/nij/grants/205023.pdf. 25

See NLADA, Taking Gideon’s Pulse: An Assessment of the Right to Counsel in Hamilton County, Ohio (Washington, DC: NLADA, 2008), http://www.nlada.net/sites/default/files/oh_takinggideonspulsejseri07-2008_report.pdf.


http://www.nlada.net/sites/default/files/oh_takinggideonspulsejseri07-2008_report.pdf



Table 1. ABA Ten Principles of a Public Defense Delivery System26

1. The public defense function, including the selection, funding, and payment of defense

counsel, is independent.

2. Where the caseload is sufficiently high, the public defense delivery system consists of both a

defender office and the active participation of the private bar.

3. Clients are screened for eligibility, and defense counsel is assigned and notified of

appointment, as soon as feasible after clients’ arrest, detention, or request for counsel.

4. Defense counsel is provided sufficient time and a confidential space within which to meet

with the client.

5. Defense counsel’s workload is controlled to permit the rendering of quality representation.

6. Defense counsel’s ability, training, and experience match the complexity of the case.

7. The same attorney continuously represents the client until completion of the case.

8. There is parity between defense counsel and the prosecution with respect to resources and

defense counsel is included as an equal partner in the justice system.

9. Defense counsel is provided with and required to attend continuing legal education.

10. Defense counsel is supervised and systematically reviewed for quality and efficiency

according to nationally and locally adopted standards.

26 Copyright © 2002 by the American Bar Association. Available online at

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf. These principles were approved by American Bar Association House of Delegates in February 2002. The American Bar Association recommends that jurisdictions use these principles to assess promptly the needs of public defense delivery systems and clearly communicate those needs to policy makers.

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf



Chapter II. Felony Indigent Defense Administration in View of

National Standards & Best Practices

For court and general governmental officials, policymakers, and other parties who are charged

with responsibility for the oversight, administration, funding and provision of indigent defense

in Cuyahoga County, the goal must be to assure that high-quality legal representation for felony

defendants who cannot afford retained counsel is provided in a manner that is effective,

efficient, ethical, and free of conflict. To assess the current state of affairs and make

recommendations for indigent defense assignments, NCSC relies here on "The Ten Principles of

a Public Defense Delivery System," as promulgated by the American Bar Association.27

1. Independence

The first of ABA’s ten principles provides that the provision of indigent defense services,

including the selection, funding, and payment of defense counsel, must be independent from

political influence and no more subject to judicial supervision than what the court exercises

over retained counsel. Like insistence on the need for indigent defense independence is

consistently part of other versions of national standards and best practices:

NLADA Standards for the Administration of Assigned Counsel Systems (see Volume Two, Part C,

Standard 2.2;

The Best Practices Committee of the American Council of Chief Defenders (ACCD) (see Volume

Two, Part D, Section 1);

The Indigent Defense Committee of the National Association of Criminal Defense Lawyers

(NACDL) (see Volume Two, Part E, Policy No. 4); and

Nationally-recognized indigent defense expert Robert Spangenberg and his associates (see

Volume Two, Part F, “Characteristics of Effective Contract Systems”).

Consistent with these national standards, Ohio Administrative Code §120-1-10 (A) provides that

Assignment systems should be independent from individual influence or choice by any member of the judiciary, prosecution, or other elected official. Assignments should be distributed as widely as possible among members of the bar on a rotary system designed to pair the defendant's level of offense with attorneys who meet the qualifications for assignment.

27

Reference is also made here to other standards and best practices, which either (a) are part of the foundation for the ABA “Ten Principles,” or (b) reflect the application of those principles. Those standards and best practices are collected in Volume Two and in the “Resource Volume” that accompany this report with recommendations.



*****

Engagement of NCSC to conduct this study of indigent defense assignments was initiated by the

Cuyahoga County Prosecutor, who signed agreement with the Cuyahoga County Executive to

engage the services of NCSC. During the May 14-15 visit by the NCSC representative for

meetings and interviews on this topic, several people expressed concern that matters of

indigent defense representation are not properly within the purview of the County Prosecutor.

The concern expressed by such people extended to some of the terms of the Dombroff consent

decree that in part led to the engagement of NCSC. For felony warrantless arrest cases, that

decree provides that in municipal court proceedings for the determination of probable cause

the setting of bond, “Cuyahoga 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 [emphasis added].” (See Appendix for the relevant extract from the consent

decree.)

Recommendation 3. Indigent defense assignments in proceedings before the Court of Common Pleas or any Municipal Court in Cuyahoga County should be free of any involvement or influence by the Office of the Cuyahoga County Prosecutor. The Cuyahoga County Executive and the Cuyahoga County Prosecutor should play absolutely no role in the administration of indigent defense services.

NCSC has no reason to believe that either the County Executive or the County Prosecutor has

any interest in controlling or otherwise exercising any inappropriate influence over the manner

in which indigent defense services are administered in Cuyahoga County. Yet both the terms of

the Dombroff consent decree and the manner in which NCSC was engaged for this study surely

has created the appearance that the County Executive and County Prosecutor, as elected

county officials (both former assistant prosecutors and one a former Common Pleas judge),

might have motives at odds with those of other key stakeholders in the Cuyahoga County

criminal justice community. It is critical that there be no hint or suggestion of any undue

political pressure or influence.

*****

Under Rule 33.0 of the Cuyahoga County Court of Common Pleas Local Rules, no attorney may

be assigned to represent an indigent criminal defendant unless the attorney’s name appears on

an approved trial counsel list. All applications to be included on an approved trial counsel list

are be reviewed by the Administrative Judge of the General Division of the Common Pleas

Court, who makes the final determination. The approved trial counsel lists remain in effect for



a two-year period, and any attorney whose name appears on the approved trial counsel lists

may file an application for renewal to serve as appointed counsel to sustain eligibility. Any

lawyer who fails to file for renewal within prescribed time limits is to be removed from the new

approved trial counsel lists. Reinstatement requires the filing of a new application, subject to

final approval by the Administrative Judge.

Recommendation 4. After the commencement date for implementation of the Dombroff consent decree and until June 30, 2014, the judges of the Court of Common Pleas and of the Municipal Courts in the County may retain responsibility for appointment of assigned counsel or the public defender’s office for proceedings before them in all criminal cases prosecuted as felonies in Cuyahoga County. No appointments should be made of any attorneys who are deemed qualified to be on an approved trial counsel list under Cuyahoga County Court of Common Pleas Local Rule 33.0 to represent felony defendants.

Recommendation 5. No later than July 1, 2014, Cuyahoga County Court of Common Pleas Local Rule 33.0 should be amended so that the Court delegates responsibility for administration of the assigned counsel system to the Cuyahoga County Public Defender Commission, expanding the Commission’s role to include general supervision not only of the public defender’s office, but also of assigned counsel and any contract arrangements for the provision of indigent defense services. An administrator and appropriate staff support should be provided for the Commission to ensure that such administrative supervision can be exercised in an effective way.

Recommendation 6. Consistent with Section 120.13 of the Ohio Revised Code, the membership of the Cuyahoga County Public Defender Commission should reflect and embody the independence of the indigent defense function. No member of the Commission should be a sitting judge or an attorney eligible to represent indigent defendants before the Court of Common Pleas or the Municipal Courts in Cuyahoga County. No member of the Commission should be a prosecutor, a law enforcement official, or a designee of either the County Executive or the County Prosecutor. The functions of the County Public Defender Commission should be to set policy and exercise general supervision over the administration of indigent defense services as provided by the County Public Defender, by assigned counsel, and by any contract counsel. The Board should refrain from interference in the conduct of individual cases.

As recommended here, having all indigent defense services provided under the aegis of the

nonpartisan Cuyahoga County Public Defender Commission not only assures the independence

of indigent defense, but it also provides focused public accountability for the efficiency and

quality of services. Removing oversight from the judiciary is not just an important way to

advance the independence of public defense: it also helps to free judges from any appearance



of impropriety or undue political pressures, in keeping with the Canons of Judicial Ethics.

Recommendation 6 is based on national standards promulgated by NLADA for the

administration of assigned counsel systems. See Volume Two, Part C, Standards 3.2.1 through

3.3.4.

2. Mixed System of Defender Office and Private Bar

The second ABA principle provides that where the caseload is sufficiently high, the public

defense delivery system should consist of both a public defender’s office and the active

participation of the private bar through an assigned counsel program or a contract defender

program. Such a mixed approach helps to assure that the pool of available public and private

defense lawyers is sufficiently large to meet the number of indigent defendants appearing in

court. As a large urban trial jurisdiction, Cuyahoga County has long had a caseload sufficiently

high to require both a County Public Defender’s Office and a system for appointment of private

counsel as needed.

The commentary to ABA Principle 2 indicates that the process for appointing private criminal

defense lawyers to represent indigent defendants should never be ad hoc,28 but that it should

instead operate according to a coordinated plan, directed by a full-time administrator who is

also an attorney familiar with the varied requirements of practice in the jurisdiction.29

Recommendation 7. The implementation of policy and management of assigned counsel and contract services should be done by a full-time administrator licensed to practice law in the County, appointed by and serving at the pleasure of the County Public Defender Commission. The administrator should have a reputation for integrity and should be committed to the ABA “Ten Principles.” While serving as administrator, he or she should not engage in the private practice of law and should be compensated at a level comparable to that of the County Prosecutor or the County Public Defender.

The creation and functions of the Cuyahoga County Public Defender Commission are governed

by Ohio statutes setting the broad outlines for how such a commission would operate.

Recommendation 7 presents more detail on how commission functions would be accomplished

in keeping with both Ohio law and the other recommendations in this report, including those

28

NLADA National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976) [hereinafter “NSC”], Guideline 2.3; American Bar Association Standards for Criminal Justice, Providing Defense Services (3rded. 1992) [hereinafter “ABA”], Standard 5-2.1. For both of these references, see “NLADA Compendium of Standards for Administration of Defense Systems,” Included as a resource volume for this report. 29

See Volume Two Part C, NLADA Standards for the Administration of Assigned Counsel Systems, Standard 3.3.1 and commentary note 5 (duties of Assigned Counsel Administrator such as supervision of attorney work cannot ethically be performed by a non-attorney, citing ABA Model Code of Professional Responsibility and Model Rules of Professional Conduct). In the Resource Volume, see also, ABA, supra note 26, Standard 5-2.1 and commentary;



relating to oversight of the assigned counsel system. The recommendation is based on national

standards promulgated by NLADA for the administration of assigned counsel systems. See

Volume Two, Part C, Standards 3.2.1 through 3.3.4.

3. Client Eligibility Screening and Timely Appointment

The third ABA principle calls for potential indigent defense clients to be screened for eligibility

as soon as feasible after they have been arrested, detained, or made a request to be

represented by counsel.30 It provides as well that defense counsel should be assigned and

notified of appointment, usually within 24 hours after the determination of eligibility.

*****

In Ohio, screening is governed by state law mandating an official statewide process.31 In a

national survey of best practices for eligibility determination, it was reported that individual

counties in Ohio “seem to pick and choose which parts of the state standard to use: small

counties with limited resources tend to screen for indigency, while larger counties tend not to

do so.”32

In Cuyahoga County, Local Rule 33.0, Part II (A) provides that

Upon arraignment or subsequent thereto, where it appears to the Court that the defendant is without counsel and desires to have the Court assign counsel, the Court, before doing so, may require from the defendant receipt of a duly executed affidavit upon the form provided by the Court regarding his or her general background and financial status.

Yet Cuyahoga County appears to be one of the Ohio counties that do not screen those

requesting indigent representation for eligibility. NCSC learned during interviews that most

Common Pleas judges in Cuyahoga County determine eligibility simply by asking a defendant,

“Can you afford an attorney?” One municipal court judge told the NCSC representative that he

30

Among the predecessor standards for this ABA principle are the following examples (see Resource Volume, Section C. “Financial Eligibility”):

Standard 5.7.3 of the ABA Standards for Criminal Justice: Providing Defense Services provides that a questionnaire should be used to determine the nature and extent of the financial resources available for obtaining representation (see Resource Volume, Section C. “Financial Eligibility”).

In its Report of the Task Force on the Courts, the National Advisory Commission on Criminal Justice Standards and Goals provides in Standard 13.3 that the eligibility determination should be made at initial appearance.

31 See Ohio Revised Code § 120.03(B)(1) (requiring the Ohio public defender commission to issue financial eligibility

rules for the conduct of county-run indigent defense systems), as well as Ohio Admin. Code § 120-1-03. 32

Brennan Center Guidelines for Indigent Defense Eligibility Determination reproduced in Volume Two of this report, Part B, page 12.



asks defendants such questions as whether the defendant has a job and how much money he

or she makes; where does the defendant live, and how much does he or she pay for rent or a

mortgage; and did the defendant travel to work in his or her own private vehicle. The judge

suggested that other municipal court judges may not follow this approach.

Recommendation 8. To assure the integrity of the indigent defense system in Cuyahoga County, and also to protect finite public resources available for the provision of indigent defense services, all felony defendants requesting counsel at public expense should be screened for eligibility at initial appearance, applying written screening criteria adopted by the Cuyahoga County Public Defender Commission (a) in compliance with the standards of indigency in §120-1-03 of the Ohio Administrative Code, and (b) building on eligibility-determination best practices identified by the Brennan Center for Justice.

In 2008, the Brennan Center reported on a national survey of best practices for the

determination of indigency. See Table 2 as well as Volume Two, Part B.

Recommendation 9. Absent exceptional circumstances, completion of a signed Ohio Public Defender application form for court-appointed representation form should be required in Cuyahoga County prior to the appointment of counsel for each applicant. Consistent with §120-1-03 of the Ohio Administrative Code, the Ohio Public Defender’s Office should not provide reimbursement to Cuyahoga County in any case for which there is no completed application form or other documentation sufficient to support a determination of indigency.

Like most jurisdictions, Cuyahoga County may have to struggle to find the resources needed to

fund adequate indigent defense services. The Brennan Center for Justice has written that the

cost of eligibility screening is worthwhile to avoid wasting scarce resources on those actually

able to afford private counsel, thereby creating a risk that substandard service might be

provided for everyone. This is especially so because a national survey by the Brennan Center

has identified ways “that screening can be done accurately, efficiently, and cost effectively.”33

Recommendation 10. Those screening eligibility for felony defense counsel at public expense in Cuyahoga County should be free of any potential conflict of interest or other ethics violation. Screening for indigency should not be done by a prosecuting attorney, by an individual public defender attorney, by an individual appointed counsel, or by the Common Pleas judge to whom the defendant’s case has been assigned.

33

Ibid., page 9.



Table 2. Best Practices for Indigent Defense Eligibility Determination, as Found by the Brennan Center for Justice34

1. Screen people seeking the appointment of counsel to ensure that they are financially eligible.

2. Apply screening criteria and processes uniformly, and commit them to writing.

3. Ensure that screening is performed by someone who does not have a conflict a. Do not allow prosecuting attorneys to screen. b. Do not allow individual defenders and public defender programs to screen their own

clients. c. Do not allow the judge presiding in the case to screen, although screening by other judges

or court employees is a good option.

4. Ensure that counsel is provided to those unable to afford it. a. Consider the price of retaining private counsel to handle the particular category of case. b. Consider unavailable to pay for counsel the income a defendant needs to pay for living

and employment expenses and to maintain financial stability. c. Consider unavailable to pay for counsel the assets a defendant needs to pay for living and

employment expenses, and any illiquid assets that cannot be quickly converted to cash. d. Do not deny counsel because a defendant has made bail. e. Do not deny counsel based on the income or assets of the defendant’s friends and family. f. Err on the side of providing counsel, and avoid overly stringent screening criteria that chill

the exercise of the right to counsel.

5. Streamline screening to speed up the process and save money. a. Use a multiple of the federal poverty guidelines to create a presumption of eligibility. b. Presume eligibility when an individual receives need-based public benefits, cannot post

bond, or resides in a correctional or mental health facility.

6. Ensure that required procedural protections are in place. a. Maintain the confidentiality of information divulged during the screening process. b. Do not re-examine eligibility determinations during the life of a case unless there is a

compelling reason to do so. c. Allow clients to appeal a determination of ineligibility to a judge or magistrate.

34

Source: Brennan Center for Justice, Eligible for Justice: Guidelines for Appointing Defense Counsel (New York: Brennan Center for Justice at New York University School of Law, 2008), https://www.ils.ny.gov/files/Brennan%20Center%20Eligibility%20Report.pdf. To read the commentary on the guidelines, see Volume Two, Part B.

https://www.ils.ny.gov/files/Brennan%20Center%20Eligibility%20Report.pdf



Providing for eligibility to be screened without any apparent conflict of interest helps to ensure

the legitimacy of the screening process. Eligibility screening in Cuyahoga County might

appropriately be done by35

The municipal court judge at initial appearance;

Court personnel;

Pretrial services personnel; or

As called for in an order by Nevada Supreme Court, “by an independent board, agency, or committee, or by judges not directly involved in the case.”36

*****

With the exception of cases in which initial appearance may take place at the Court of

Common Pleas, section 6 of the Dombroff consent decree (see Appendix) provides that the

defendant in a felony warrantless-arrest case must appear before a municipal court judge

within 48 hours after arrest for a probable cause determination and a bond determination. In

addition, the consent decree requires that the defendant in such a case have legal

representation at the initial appearance.

Under current procedures for indigent defense representation in Cuyahoga County, it may be

difficult or impossible in cases with a defendant seeking appointment of a public defender or

assigned counsel for the appointed defense attorney to make an appearance in municipal court

on the same day that the initial appearance is commenced in compliance with Dombroff.

Recommendation 11. In any felony warrantless-arrest case in which an initial appearance is commenced on the effective date for implementation of the Dombroff consent decree and thereafter through June 30, 2014, notice of appointment should be given promptly, and the assigned attorney should appear on behalf of the client no less than 24 hours later for the completion of the initial appearance. No later than July 1, 2014, practices and procedures should be implemented to provide for eligibility screening to be accelerated so that counsel for the defendant appears at initial hearing within 48 hours after arrest. Such practices and procedures should be developed by the Cuyahoga County Public Defender Commission in connection with those for implementation of recommendation in this report on whether or how vertical representation can be provided for indigent defendants. For the purpose of developing those practices and procedures, the Commission and its staff should work in collaboration with the courts and the other key criminal justice stakeholders.

35

Ibid., see page 12. 36

In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, Nevada Supreme Court ADKT No. 411 (Jan. 4, 2008), http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf.

http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf



NCSC understands that discussions have been held by the County Prosecutor’s Office with one

of the Municipal Court judges about the prospect of having the initial appearance in a felony

warrantless arrest case commence within 48 hours as required under the Dombroff consent

decree, then continued for completion a day later with appointed counsel appearing on behalf

of the defendant. NCSC endorses this prospect as a short-term solution to the problem of

compliance with the spirit of the consent decree.

It appears possible, however, for there to be refinements in the eligibility screening process so

that the determination of indigency might be made sooner. In addition, NCSC understands that

initial appearances can now be held within 36 hours after arrest in the Cleveland Municipal

Court. Moreover, the consideration of whether to provide “vertical” defense representation

from initial appearance (see Section 7 below) involves consideration of having suitably-qualified

public defender attorneys or private defense counsel accepting indigent appointments available

for suburban municipal court appearances in a way that is not now practicable under the

current approach to the administration of indigent defense services. Such considerations as

these lead NCSC to contemplate that indigent defense counsel participation in municipal court

initial appearances within 48 hours may be feasible.

4. Early and Confidential Contact with Client

This principle calls for defense counsel to be provided sufficient time and a confidential space

within which to meet with the client. National standards for the defense function in general

indicate that counsel should interview the client as soon as possible, in the early stages of

criminal proceedings.37

The NLADA Standards for the Administration of Assigned Counsel Systems provide that those

administering an assigned counsel program must work with others in the criminal justice

system to make sure that counsel is provided to the defendant at the earliest possible stage in

the proceedings. In addition, the standards call for assigned counsel to contact their new

clients as soon as possible after appointment.38

The experience of the NCSC consultant in this project has been that counsel for an indigent

criminal defendant must meet and talk to his or her client early and often, not only to learn the

defendant’s perspective and develop the case, but also to establish himself or herself as a

credible and vigorous advocate for the client. The establishment of defense counsel credibility

37

American Bar Association Standards for Criminal Justice, Defense Function (3rd ed. 1993), Standard 4-3.2; NLADA, Performance Guidelines for Criminal Defense Representation (1995), Guidelines 2.1-4.1. In the same vein, see also, Institute for Judicial Administration/American Bar Association, Juvenile Justice Standards Relating to Counsel for Private Parties (1979), Standard 4.2. 38

See Volume Two, Part C, Standard 2.5.



in the eyes of the client can be a critical factor in determining whether a defendant’s interests

are better served by going to trial or by accepting a negotiated plea agreement.39

To meet the call under this principle for confidential communications, ABA urges that there be

private meeting space available in jails, prisons, courthouses, and other places where

defendants must confer with counsel. Unfortunately, NCSC was unable to assess the current

availability of such confidential space in either downtown Cleveland or the suburbs of Cuyahoga

County.

Recommendation 12. As part of the systematic assessment of the quality and efficiency of attorneys representing indigent Cuyahoga County felony defendants (see ABA “Ten Principles of a Public Defense Delivery System,” Principle 10), the sufficiency and consistency with which an attorney meets early and often with his or her client should be one consideration among others. Consistent failure without justification to meet early with clients should be among the potential grounds contributing to having an attorney be removed from the Court of Common Pleas lists of approved trial counsel.

Recommendation 13. Before December 31, 2014, the Cuyahoga County Public Defender Commission should arrange for the Office of the Ohio Public Defender conduct an appraisal of the meeting space available in county- and municipal-level jails, courthouses, and other places in Cuyahoga County where indigent defendants may confer in confidence with counsel. With the support of other criminal justice stakeholders, the Defender Commission should advocate for funding to support the implementation of any improvements suggested by the Ohio Public Defender as a result of that appraisal.

5. Attorney Caseload/Workload

In this principle, ABA urges that the workload of indigent defense counsel, including that for

public defenders as well as retained and appointed work for private counsel, should not exceed

a level that might undermine the quality of defense services or result in failure to meet ethical

obligations. Lawyers providing indigent defense should consider themselves obliged to decline

appointments if their workloads exceed such a level, and those responsible for appointments

should refrain from assigning a case to an attorney if aware that he or she is overloaded or

otherwise cannot provide effective representation.40

39

See David Steelman, with John Goerdt and James McMillan, Caseflow Management: The Heart of Court Management in the New Millennium (Williamsburg, VA: National Center for State Courts, 2004 edition), page 32. 40

See also, State ex rel. Missouri Public Defender Commission v. Waters and Orr, No. SC91150 (July 31, 2012), where the Missouri Supreme Court held that a case cannot be assigned to a lawyer when the appointing authority is aware that, for whatever reason, counsel is unable to provide effective representation to a defendant, and more



National normative standards for what would constitute manageable caseloads for public defender

attorneys were first recommended in 1973 by the Task Force on the Courts of the U.S. Justice

Department's National Advisory Council (NAC), with the provision that such caseload limits should be a

measure of when a public defender should decline a case.41 Since the publication of the NAC standard,

attention has been given more recently to changing from caseload standards to ‘workload” measures,

reflecting levels of staff support, differences among cases in levels of complexity and scope of work to

be done, and local factors affecting attorney performance.42

Consistent with the NAC standard, Ohio Administrative Code §120-1-07(A) provides that a public

defender office, public defender attorney, or private practitioner accepting assignments to

represent indigent clients should not accept a workload that might threaten due process and

the quality of representation, as measured by such factors as whether the number of cases the

attorney is handling exceeds the number prescribed by the Ohio Public Defender standards and

guidelines.

In Cuyahoga County, Local Rule 33.0, Part I (B) provides that “the office of the Cuyahoga County

Public Defender shall be assigned thirty five per cent (35%) of cases for which counsel are

selected for indigent defendants.” This measure limiting the number of cases taken on by the

County Public Defender has the effect of helping to assure that defender attorney workloads do

not exceed state workload standards. NCSC has not inquired for this report how it relates to

the actual workload capacity of the office.

Regarding the appointment of assigned counsel, Local Rule 33.0, Part I (F) provides,

During a Judge's two week service in the arraignment room, no attorney may receive more than four criminal assignments for four different Defendants; provided however each attorney in addition may be assigned to capital cases and to additional cases for existing clients under the mandatory assignment procedure for defendants with multiple cases.

When the NCSC consultant visited Cleveland in May 2013, he learned that the Common Pleas

judge rotation schedule now provides for each judge to conduct the Common Pleas

specifically that a case cannot be assigned to a public defender after the Missouri State Public Defender has declared a case overload. 41

See Resource Volume, Section E, “Plan for Defense Services or Public Defender,” Subsection 9, “Case Overload

and Case Management Systems,” page 102:

Standard 13.12. Workload of Public Defenders. The caseload of a public defender office should not exceed the following: felonies per attorney per year: not more than 150; misdemeanors (excluding traffic) per attorney per year: not more than 400; juvenile court cases per attorney per year: not more than 200; Mental Health Act cases per attorney per year: not more than 200; and appeals per attorney per year: not more than 25.

42 See, for example, American Council of Chief Defenders, “Statement on Caseloads and Workloads” (August 24,

2007), http://www.nlada.org/DMS/Documents/1189179200.71/.

http://www.mynlada.org/defender/DOJ/standardsv1/v1e.htm

http://www.nlada.org/DMS/Documents/1189179200.71/



arraignment docket for only one week at a time. We understand that this change means that

no attorney now receives more than two criminal felony assignments per week. Critics of the

current assignment system asserted in interviews with NCSC that this one week/two-case

appointment pattern tends to skew appointments in favor of certain attorneys, but NCSC did

not investigate further to test the validity of that assertion.

Recommendation 14. The provision in Local Rule 33.0 that the Office of the Cuyahoga County Public Defender should be assigned 35% of the assignments for indigent felony defense cases should be amended. The local rule should provide instead that the Cuyahoga County Public Defender Commission and the County Public Defender should regularly review the workloads of individual public defender attorneys in view of applicable workload standards, adjusting the allocation of assignments among public defenders and private assigned counsel in a manner to promote due process and quality representation through optimal use of the available pool of qualified public and private criminal defense attorney resources in the County.

Recommendation 15. At the direction of the Cuyahoga County Public Defender Commission, the administrator of the Cuyahoga County assigned counsel system should develop standards relating to caseload and workload size limits for attorneys who desire to receive appointments in indigent felony cases, as well as procedures through which attorneys whose workloads have become excessive can be relieved of caseload responsibilities that they cannot competently meet. The administrator should provide notice to attorneys on the lists of approved trial counsel of the caseload and workload standards and procedures approved by the Commission, and of the attorneys' obligation not to accept more work than they can effectively handle. The administrator should keep records of assignments made to individual attorneys in a manner that allows the administrator to avoid assigning an excessive number of cases to any attorney.43

6. Attorney Qualifications

With this principle, ABA recognizes that defense counsel’s ability, training, and experience must

match the complexity of the cases they are assigned. A public defender or private criminal

defense attorney should never be assigned a case for which he or she lacks the experience or

training to handle competently. The attorney is obliged to refuse appointment if he or she is

unable to provide ethical, high quality representation.

Recommendation 16. Local Rule 33.0, which provides that attorneys seeking indigent defense assignments must have the requisite experience and

43

This recommendation is closely patterned on NLADA Standards for the Administration of Assigned Counsel Systems, Standard 4.1.2. See Volume Two, Part C, pp. 43-44.



qualifications as recommended in this report, should be amended to provide that all attorney applications to be included on an approved trial counsel lists should be reviewed by the Cuyahoga County Public Defender Commission, which should make the final determination. The approved trial counsel lists should remain in effect for a two-year period, and any attorney whose name appears on the approved trial counsel lists should be required to file an application for renewal to serve as appointed counsel to sustain eligibility. Any lawyer who fails to file for renewal within prescribed time limits should be removed from the new approved trial counsel lists. Reinstatement should require the filing of a new application, subject to final approval by the County Public Defender Commission.

Recommendation 17. Prior to assuming expanded responsibility for administrative oversight of indigent defense services on or before July 1, 2014, the Cuyahoga County Public Defender Commission should provide means for court appointments of attorneys to represent indigent felony defendants to be made from an appropriate list either randomly or by fixed rotation, and Local Rule 33.0 should be amended accordingly. No attorney should be appointed in a case unless his or her name appears on the list of approved trial counsel for the specific kind of felony offense charged in the case for which the defendant has requested indigent defense representation, as now designated in Local Rule 33.0: (1) murder cases; (2) major felony cases; (3) fourth- and fifth-degree felonies; and (4) cases involving defendants with mental illness or developmental disability.

Given that NCSC recommends amendment of Local Rule 33.0 to provide an expanded role for

the Cuyahoga County Public Defender Commission, it is important for NCSC to offer a sense of

how we think that the lists of approved trial counsel should be administered under the

recommended new scheme. Recommendations 16 and 17 provide for the County Public

Defender Commission to set policy and exercise general supervision of day-to-day efforts to be

carried out by the administrator and his or her support staff.

*****

Ohio Administrative Code §120-1-10 (B) provides that a county may receive reimbursement for

defense costs from the Office of the Ohio Public Defender only when attorneys representing

indigent clients meet the minimum qualification and training standards approved by the Ohio

Public Defender Commission. In Cuyahoga County, Local Rule 33.0, Part I (A), listing the

experience and qualifications to be considered a prima facie basis for inclusion on the lists of

approved trial counsel, meets or exceeds the minimum qualifications set by the Ohio Public

Defender Commission for murder cases, major felonies, and fourth- or fifth-degree felonies; in

addition, it includes an additional specification of the experience and qualifications required of

http://codes.ohio.gov/oac/120-1-10



attorneys considered eligible for appointment to represent defendants with a confirmed

serious mental illness or those who are developmentally disabled.

Notwithstanding the fact that the qualifications specified for indigent defense assignment in

Cuyahoga County meet or exceed state-level minimum standards, some of those interviewed in

Cleveland by the NCSC consultant suggested that the requirements in Local Rule 33.0 are too

low to assure adequate representation of indigent defendants.

Recommendation 18. Cuyahoga Local Rule 33.0 should be amended to refine the qualifications for attorneys to be on the lists of approved trial counsel. More specifically, the qualifications set forth in the rule should be the following:

Qualifications for capital cases should be those set forth in Rule 20 of the Rules of Superintendence for the Courts of Ohio.

For cases with a potential life sentence (“life case” list of approved trial counsel), an attorney must have previously served as lead or co-counsel in two “life case” jury trials, or as trial counsel in eight felony jury trials, at least four of which must have been first- or second-degree felonies.

For first- or second-degree felonies (“major felonies” list), an attorney must have previously served as counsel in two major felony jury trials or five felony jury trials.

For third- , fourth- , or fifth-degree felonies (“other felonies” list), an attorney must have previously served as counsel in three felony jury trials.

Counsel can qualify for the “other felonies” list by acting as assistant counsel, serving as non-participating counsel at three felony jury trials from the beginning of jury selection to the beginning of jury deliberations.

Participation as lead counsel in a civil jury trial, or as trial counsel in a criminal misdemeanor trial or a felony trial to the bench, should count as “one-half of a trial” for the above qualifications.

Participation in an approved mentoring program, such as that proposed by the Cuyahoga Criminal Defense Lawyers Association (CCDLA), with the mentored attorney participating in all facets of one case, as well as serving as assistant counsel at a trial, should qualify an attorney for the “other felonies” list.

Attorneys seeking to be on the “mental health” list should be required to attend the mental health training seminar provided by the Common Pleas Court.

To be placed and remain on a list, an attorney must have acquired at least 12 hours of continuing legal education credits related to criminal law or provided by a criminal defense bar association during the previous two years.

This recommendation is directly based on what has been recommended in a 2013 proposal by

the Cuyahoga Criminal Defense Lawyers Association (CCDLA).44 NCSC supports and endorses

44

CCDLA, “Indigent Defense in Cuyahoga County: A Proposal for Change” (2013), Part III, Proposal B.



the CCDLA proposal on qualifications for lawyers to be on the lists of approved trial counsel in

Cuyahoga County. The CCDLA proposal for a mentoring program is consistent with a national

guideline offered by NLADA.45

The specification of attorney qualifications for representation of indigent felony defendants in

Cuyahoga County must be set at a level that promotes quality representation in individual cases

without narrowing the pool of “eligible” public or private criminal defense attorneys so much

that the capacity of the indigent defense system to meet the requirements of due process at a

constitutionally-satisfactory level is critically undermined.

7. Vertical Representation

“Vertical representation” is where the same attorney continuously represents an indigent client

through all stages of court proceedings, from initial assignment through the trial and

sentencing. The concept of vertical representation is consistently advocated by those

promulgating national standards and best practices for indigent defenses services:

NLADA Standards for the Administration of Assigned Counsel Systems (see Volume Two,

Part C), Standards 2.5 and 2.6;

ACCD Best Practices Committee (see Volume Two, Part D), Section 4;

NACDL Assigned Counsel Policies (see Volume Two, Part E), Section 1;

ABA Standards for Providing Defense Services (see Resource Volume, Section B);

NLADA Guidelines for Legal Defense Systems (see Resource Volume, Section B);

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense

Services (see Resource Volume, Section B); and

Model Public Defender Act (see Resource Volume, Section B).

OH Criminal Procedure Rule 44, any defendant charged with a serious offense who is unable to

obtain counsel must have counsel assigned to represent him at every stage of the proceedings

from his initial appearance through appeal as of right, unless he or she makes a knowing,

intelligent, and voluntary waiver of the right to counsel. The rule does not specify, however,

that there must be vertical representation.

During interviews conducted for this study by NCSC in May 2013, there was some mention of an

Ohio Supreme Court decision in the Mancino case,46 ruling that an attorney representing a

defendant in municipal court on felony charges, where there was a finding of probable cause

and a bind over to common pleas court, was properly held in contempt by the common pleas

judge for failure to appear at arraignment, because the bind over made his representation of

45

NLADA Guidelines for Legal Defense Systems (see Resource Volume, Section E.7), Guideline 4.4.1. 46

State ex rel. Mancino v. Campbell, 66 Ohio St.3d 217 (1993).



the defendant subject to the jurisdiction of the common pleas court. The NCSC consultant

concludes from a review of the decision in this case that it was only tangentially related to the

question of vertical representation, so that it would provide no precedent on the issue.

Experienced defense attorneys in Cuyahoga County told the NCSC consultant during those

interviews that it is critical for the attorney representing an indigent felony defendant to appear

on his or her behalf at the earliest court proceeding and then throughout all further

proceedings in the case. Among other considerations, this is important for the establishment of

an effective attorney-client relationship and the avoidance of having the appearance of an

assembly-line process in which defendants may feel that they are being treated impersonally

and as fungible commodities.

Others, however, informed the NCSC consultant in interviews that providing vertical

representation under Dombroff is made extremely difficult by the logistics of having a dozen

suburban municipal courts distributed over a large area outside Cleveland. The most qualified

felony attorneys typically must spend a substantial portion of their time downtown in

proceedings before the Common Pleas Court or Cleveland Municipal Court. Not only would

there be considerable time wasted for a lawyer to drive from one suburban location to another,

but being called on to appear in municipal court initial appearances would inevitable cause

conflicts with downtown court appearances.

Recommendation 19. As a temporary expedient in the implementation of the Dombroff consent decree, each municipal court judge assigning counsel for a warrantless felony arrest defendant who has been found indigent should simply appoint counsel who are (a) the list of approved trial counsel for the level of felony offense being charged, and (b) able to be present for the scheduled initial appearance at that municipal court location, with continuing vertical representation only if possible. As of July 1, 2014, however, the appointment of counsel at initial appearance for a warrantless felony arrest defendant should, except in unusual circumstances, carry the expectation that the same appointed attorney will provide continuing representation through all subsequent court events.

Recommendation 20. In all capital murder, aggravated murder, felony life, and major felony cases with a warrantless arrest, initial appearance should be held in downtown Cleveland within the time requirements of the Dombroff case before a judge of the Court of Common Pleas.

In all other warrantless arrest felony cases, initial appearance and preliminary hearing should be held by a judge of the municipal court serving the municipality where the arrest was made. In all but the most unusual circumstances, preliminary hearing in such cases should not be preempted by a



grand jury indictment. Instead, there should be a determination at preliminary hearing by a municipal court judge whether there is probable cause in any such case for the defendant to be held for felony prosecution in Common Pleas Court.

Recommendation 21. No later than January 1, 2014, the Common Pleas lists of approved trial counsel should include an indication by each listed attorney of the municipal courts in which he or she is prepared to take assignments to represent felony warrantless arrest defendants found indigent in municipal court initial appearances. When the Cuyahoga County Public Defender Commission assumes responsibility on or before July 1, 2014, for general supervision of all indigent defense services in the county, the Commission should direct that an assessment be made of the extent of any practical problems in providing indigent defense representation in keeping with the Dombroff consent decree at initial appearances throughout the county. Unless there is a sufficient number of private attorneys on appropriate lists of trial counsel who are willing and able to appear as assigned counsel in such proceedings in any suburban municipal court, then the Public Defender Commission should by December 31, 2014, begin making arrangements for public defender attorneys or contract counsel with suitable qualifications to take assignments in such courts.

Acknowledging that vertical representation has not been practicable under circumstances as

they have existed in Cuyahoga County, the purpose of Recommendation 19 is to present a

timetable for progress toward making vertical representation for criminal felony defendants a

reality. To help make such progress easier, NCSC urges in Recommendation 20 that there be a

sharp break between the most serious felonies, for which a prompt initial appearance in

Common Pleas Court is most appropriate. The NCSC consultant believes that the provision of

vertical representation is almost inconceivable in Cuyahoga County, absent a very loose and

expanded interpretation of the phrase, “cases in which the interests of justice or public safety

demand it,” to identify the cases that should immediately be brought downtown for Common

Pleas initial appearance.

Recommendation 20 also recognizes that fourth- and fifth-degree felonies make up the bulk of

all felony cases. These are cases for which vigorous representation by a capable lawyer will

provide early scrutiny of cases brought by the State, with the prospect that appropriate cases

should proceed promptly to Common Pleas felony arraignment while others more properly

resolved at the municipal court level would remain there.

Recommendation 21 provides mechanisms for addressing the logistics of providing assigned

counsel for initial appearances in municipal courts spread around Cuyahoga County. First, it

calls for each lawyer taking indigent defense cases to identify the municipal courts where he or



she can realistically appear within the framework of how he or she conducts the practice of law.

Second, it allows for a “marketplace” solution to the geographical distribution of appearances

by private lawyers taking assigned cases. Finally, it provides for a default structural solution to

the problems of making a suitable geographic distribution of indigent defense lawyers,

providing for the County Public Defender Commission to seek either expansion of public

defender services or the engagement of lawyers to provide such services under contract.

8. Parity of Resources

Here the ABA principles present the requirement that there must be parity between defense

counsel and the prosecution with respect to available resources. Between the County

Prosecutor and the Public Defender, ABA urges that there should be parity of workload, salaries

and other resources (such as benefits, technology, facilities, legal research, support staff,

paralegals, investigators, and access to forensic services and experts).

Under the Ohio Administrative Code, § 120-1-06 specifies the facilities and resources to be

provided for a county public defender must (a) be sufficient for the provision of quality

representation, and (b) must be substantially equivalent to what is provided for the

prosecutor’s office in that county. As most recently updated in 2009, this section appears to

reflect ABA Principle 8.

Recommendation 22. Before December 31, 2014, the Cuyahoga County Public Defender Commission should arrange for the Office of the Ohio Public Defender conduct an appraisal of the extent to which there is parity of resources between the County Prosecutor’s Office indigent defense providers (both the County Public Defender’s Office and private counsel when they are appointed to represent indigent defendants). With the support of other criminal justice stakeholders, the Defender Commission should advocate for funding to support the implementation of any improvements suggested by the Ohio Public Defender as a result of that appraisal.

*****

Assigned counsel are within the scope of Principle 8’s parity provisions, and the ABA

commentary observes that assigned counsel should be paid a reasonable fee in addition to

actual overhead and expenses, including separate funding for expert, investigative, and other

litigation support services. Under Ohio Revised Code §120.33, payment of assigned counsel is

to be determined by individual counties. In Ohio Administrative Code §120-1-15, subsection (A)

provides as follows:

In establishing a fee schedule to be paid appointed counsel in indigent cases eligible for reimbursement pursuant to section 120.33 of the Revised Code, the

http://codes.ohio.gov/orc/120.33



county commissioners and county bar association shall establish a schedule that is comparable to the fees paid to retained counsel in the same type of cases. No county will be entitled to reimbursement from the Ohio public defender if it can be demonstrated that its fee schedule is inadequate for an appointed attorney to cover the costs of overhead while working on an appointed case and to generate a reasonable income for work performed.

The minimum and maximum compensation for assigned counsel in Cuyahoga County are set

forth in a fee schedule attached to Local Rule 33.0. According to CCDLA, rates for assigned

counsel in Cuyahoga County have not been raised for over 20 years, with some minor

exceptions:47

The hourly rate was raised to $60 for in-court and $50 for out-of-court time a few years ago; with some minor changes, the caps have not been raised since 1989. During that same time, the annual income of lawyers has increased by 119%, the average national household income has increased by 65%, and the salary of a common pleas judge in Ohio has increased by 61%. Looking at it in another way, taking inflation into account, the real value of the $1,000 cap in 1989 [for a first-degree felony] is now $534.28. (Footnotes in the original are omitted here.)

CCDLA has also compared the rates in Cuyahoga County with those of other counties, finding

that 78 of the 86 Ohio counties with assigned counsel systems (two counties do not assign

criminal cases to private attorneys) provide higher maximum reimbursement for felonies than

that in Cuyahoga County.48 Table 3 shows a comparison of Cuyahoga County assigned counsel

maximum reimbursement levels with the guidelines of the Ohio Public Defender (OPD) and the

maximum reimbursement rates in other urban Ohio counties:

47

CCDLA, supra note 43, Part I.A. 48

Ibid., Part II.B and Appendix A.



Table 3. Comparison of Cuyahoga County Assigned Counsel Fee Schedule

with Those in Other Urban Ohio Counties and with OPD Guidelines49

Felony Category Cuya-hoga OPD

Frank-lina

Hamil-ton

Montgo-mery Lucasb

Maho-ning

Capital Murder c $25,000 $75,000 $50,000 $45,000 $75,000 $60,000 $65,000

Aggrav. Murder c $6,000 $10,000 $10,000 N/Av $10,000 $6,000 $10,000

Felony Life $2,000 $5,000 $3,000 N/Av $5,000 $3,250 $3,000

Felony 1 $1,000 $3,000 $3,000 $2,250 $3,000 $1,750 $3,000

Felony 2 $750 $3,000 $3,000 N/Av $3,000 $1,500 $3,000

Felony 3 $600 $3,000 $3,000 N/Av $3,000 $1,250 $3,000

Felony 4 $500 $2,500 $2,500 N/Av $2,000 $1,000 $2,500

Felony 5 $500 $2,500 $2,500 N/Av $2,000 $900 $2,500

a. Franklin County provides for payment of extraordinary fees for cases where trial exceeds a certain length. b. Lucas County provides for an additional $250 per day of trial. c. The amount shown for “Capital Murder” and “Aggrav. Murder” is the maximum fee for two attorneys.

Recommendation 23. Compensation for assigned counsel in Cuyahoga County should be brought into line with the OPD guidelines and the compensation rates provided in most major urban counties of Ohio. Hourly rates for non-capital cases should be maintained at their present level of $60 an hour for in-court time and $50 an hour for all non-capital offenses. Counsel in capital cases should be paid at the rate of $90 per hour, whether in court or out of court, and the maximum capital murder fee should be raised to $75,000 ($37,500 per attorney). It should be raised to $8,000 ($4,000 per attorney) in murder and non-capital aggravated murder cases. For non-murder cases with a potential life sentence, it should be raised to $5,000; to $3,000 for major felonies (felony 1, 2 and 3); and to $2,500 for other felonies (felony 4 and 5).

Extraordinary fees should no longer be applicable to representation of a defendant in more than one case. Instead, the attorney should be compensated up to the maximum amount for the representation in each case. Extraordinary fees should also be paid, at a rate of $300 per day, and only to the extent that the applicable maximum has been exceeded in the event of a trial lasting more than (a) 10 days for non-capital aggravated murder, murder, and any other case with a potential life sentence; (b) seven days for major felonies; and (c) five days for other felonies.

49

Source: CCDLA, supra note 43, Part I.B and Appendix A.



This recommendation is a near-verbatim copy of a proposal made in 2013 by CCDLA,50 which

NCSC supports and endorses. It need hardly be stated that the gap between the fee schedule

for assigned counsel in Cuyahoga County, OPD guidelines and the fee schedules in other urban

Ohio counties raises the possibility that OPD might deny reimbursement to Cuyahoga County if

it finds that CCDLA has “demonstrated that its fee schedule is inadequate for an appointed

attorney to cover the costs of overhead while working on an appointed case and to generate a

reasonable income for work performed.”

9. Attorney Training

Here ABA emphasizes that defense counsel must be provided with continuing legal education

opportunities and be required to attend educations programs to develop and maintain the skills

required to provide effective representation. This principle is recognized throughout the

national standards as a necessary means to promote quality of services. For example:

ABA Standards for Providing Defense Services (see Resource Volume, Section E.6),

Standard 5-1.5;

NLADA Guidelines for Legal Defense Systems (see Resource Volume, Section E.6),

Guidelines 5.7 and 5.8;


Part C), Standards 4.2, 4.3.1, and 4.3.2;

National Advisory Commission on Criminal Justice Standards and Goals (see Resource

Volume, Section E.6), Standards 13.15 and 13.16; and

Model Public Defender Act (see Resource Volume, Section E.6), §10.

Provisions in Ohio Administrative Code §120-1-10 on attorney qualifications for representing

indigent defendants call primarily for a specified number of years’ experience as an attorney

and appropriate prior experience as trial counsel. Entry-level attorneys seeking to qualify for

assignments in fourth- and fifth-degree felonies may do so by having taken a certified training

program on criminal practice or by having completed a clinical legal education program

focusing on criminal defense.

In Cuyahoga County, Local Rule 33.0 places heavy emphasis on appropriate prior experience as

trial counsel as the means for attorneys to qualify for assignments. The only category of

felonies for which there is a requirement for training in addition to experience as trial counsel

has to do with cases involving defendants with mental illness or developmental disabilities. For

such cases, attorneys must receive specific training on mental health cases every two years.

50

Ibid., Part III, Proposal A.



Otherwise, education requirements for counsel are essentially those for continuing legal

education in general as required for maintaining good standing in the Ohio bar.

Recommendation 24. There should be a well-defined indigent defense education program in Cuyahoga County, operating under the aegis of the Cuyahoga County Public Defender Commission in collaboration with the courts, the Ohio Public Defender, the Cuyahoga Criminal Defense Lawyers Association, and other critical stakeholders.

(1) The administrator of the assigned counsel system should provide a Local Rule 33.0 should provide for the following as elements of attorney training associated with initial or ongoing qualification to be on lists of approved trial counsel: (a) The requirements to qualify for the “other felonies” list should

include the option of participation in an approved mentoring program, such as that proposed by the Cuyahoga Criminal Defense Lawyers Association (CCDLA), with the mentored attorney participating in all facets of one case, as well as serving as assistant counsel at a trial.

(b) Attorneys seeking to be on the “mental health” list should be required to attend the mental health training seminar provided by the Common Pleas Court.

(c) To be placed and remain on a list, an attorney must have acquired at least 12 hours of continuing legal education credits related to criminal law or provided by a criminal defense bar association during the previous two years.

(2) The Cuyahoga County Public Defender should maintain a systematic approach to the training of defender attorneys, at least equal in scope to that in the County Prosecutor’s Office, including at least the following features: (a) participation in an in-house orientation program for new staff

attorneys; (b) acquisition of at least 12 hours of continuing legal education credits,

through participation in accredited local, statewide, or national programs providing in-service training programs so that all attorneys are kept abreast of developments in criminal law, criminal procedure and the forensic sciences, and achieve compliance with Local Rule 33.0; and

(c) investigative staff participation in appropriate training.

This recommendation is based on both national and local sources. The general structure is

loosely patterned on the NLADA Guidelines for Legal Defense Systems.51 The provisions

51

See Resource Volume, Section E, pages 77-78, NLADA Guidelines 5.7 and 5.8.



relating to training requirements under Local Rule 33.0 replicate those in Recommendation 18

above, and they are based on the 2013 proposals by the Cuyahoga Criminal Defense Lawyers

Association.52

10. Attorney Performance

The tenth and final ABA principle is that there must be appropriate supervision of defense

counsel and systematic performance review for quality and efficiency according to nationally

and locally adopted standards. This should apply to the public defender office (both

professional and support staff), to assigned counsel, and to any contract defenders.

In terms of management, it is a given that any organization relying on the quality of services by

individual persons must provide for appropriate supervision and assessment of performance.

Yet for indigent defense, the only national supervisory standards found by NCSC are those

promulgated by NLADA:

NLADA Guidelines for Legal Defense Systems (see Resource Volume, Section E.7),

Guidelines 5.4 and 5.5;


Part C), Standards 4.4 through 4.5.3; and

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal

Defense Services (see Resource Volume, Section E.7), Guideline III-16.

While some states have statewide or local supervisory standards for indigent defense

supervision,53 NCSC did not find any for Ohio or for Cuyahoga County.

Recommendation 25. Not later than December 31, 2014, the Cuyahoga County Public Defender Commission should publish criteria for the evaluation of performance by lawyers providing indigent defense services. Those for public defender attorneys should be as drafted by the Cuyahoga County Public Defender, and those for assigned counsel should be as drafted by the administrator of the assigned counsel system.

The professional performance of Cuyahoga County public defender staff attorneys should be subject to systematic supervision and evaluation based upon publicized criteria. Supervision and evaluation efforts should be individualized, and should include monitoring of time and caseload records,

52

See CCDLA, “Indigent Defense in Cuyahoga County: A Proposal for Change” (2013), Part III, Proposal B. 53

Individual states with standards for indigent defense supervision include Georgia, New York, and Washington [see Resource Volume, Section E.7], as well as Massachusetts, Washington, California (local standards in San Mateo County and Sacramento County), and Pennsylvania (local standards in Erie County) [see ACCD Best Practices Committee on ABA Ten Principles in Assigned Counsel Systems, in Volume Two, Part D].



review and inspection of case files and transcripts, in-court observation and periodic conferences.

For assigned counsel, the broad criteria of performance used in performance evaluations should be those of a skilled and knowledgeable criminal lawyer. The administrator of the assigned counsel program should develop a system to elicit periodic regular inputs from judges, prosecutors, other defense lawyers and clients. 54

Recommendation 25 is based in part on Guidelines 5.4 and 5.5 in the NLADA Guidelines for

Legal Defense Systems.55 For more on indicators of performance for assigned counsel, see the

best practices identified by the American Council of Chief Defenders.56

54 There are some jurisdictions that use client satisfaction surveys to assess defense counsel performance. For

example:

Oregon State Bar: Indigent Defense Task Force Survey of Probationers, https://www.osbar.org/surveys_research/idtf/app3-probationers.html. This report provides a link to four different surveys (for Judges, Defenders, Prosecutors, Accused). The report, while dated (1996), is a good template for conducting surveys, and analyzing the resulting data.

North Carolina: Evaluating Indigent Defense (2007), https://www.osbar.org/surveys_research/idtf/app3-probationers.html, While the report does not give a template of the actual survey used, pages 30-40 (of 108) detail the type of questions posed in their survey and could easily be incorporated in a survey of your own.

City of Seattle: Indigent Defense Services Follow-up and Audit (2010), http://www.seattle.gov/audit/docs/FinalReportIndigentDefenseServicesFollowup.pdf. Survey questions are spelled out fairly clearly followed by the survey results.

There are several examples of on-line client satisfaction surveys from a private firms below:

https://secure.jotform.us/form/20384124382;

http://www.sdswillslawfirm.com/client-satisfaction-survey/;

http://www.garfinkelimmigration.com/home/survey-form/.

55 See Resource Volume, Section E.7.

56 Volume Two, Part D, ACCD Best Practices Committee on ABA Ten Principles in Assigned Counsel Systems.

https://www.osbar.org/surveys_research/idtf/app3-probationers.html


https://www.osbar.org/surveys_research/idtf/app.html

http://www.ncids.org/Systems%20Evaluation%20Project/News_Updates_Products/RoundTableReport_06_08.pdf


http://www.seattle.gov/audit/docs/FinalReportIndigentDefenseServicesFollowup.pdf

http://www.seattle.gov/audit/docs/FinalReportIndigentDefenseServicesFollowup.pdf

https://secure.jotform.us/form/20384124382

http://www.sdswillslawfirm.com/client-satisfaction-survey/

http://www.garfinkelimmigration.com/home/survey-form/



APPENDIX.

DOMBROFF CONSENT DECREE REQUIREMENTS FOR FUTURE CONDUCT

IN CUYAHOGA COUNTY (2013)*

* Extract from Stipulation for Entry of Consent Decree in connection with Andrew Dombroff vs. Cuyahoga

County, et al., U.S. Dist. Court, N.D. Ohio, Eastern Division, Case No. I :12cv2189.



Appendix. Dombroff Consent Decree Requirements for Future Conduct in

Cuyahoga County (2013)

6. Future Conduct. Within ninety (90) days after the execution of this Consent Decree, the

following will occur:

In felony warrantless arrest cases, the County Sheriff will not accept custody of arrestees from

a municipality unless an authorized representative from the municipality provides proof that

within 48 hours of the arrest a probable cause determination was made and bond was set by

the municipal court.

Notwithstanding the foregoing, in homicide, rape and cases classified as First Degree Felonies

under Ohio Law, and in other exceptional cases in which the interests of justice or public

safety demand it, exceptions to the forgoing policy may be made on a case-by-case basis with

the written approval of the County Prosecutor or his/her Supervisor designee. In such

circumstances, the Initial Appearance may take place at the Court of Common Pleas. The

probable cause determination will remain the responsibility of the municipal court. Nothing

in this Consent Decree is intended to limit the authority of the municipal court to hold the

initial appearance on any felony case within forty-eight hours of the arrest.

In addition, Cuyahoga 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.