Court-Appointed Cases Forever

by Jamison Koehler on January 27, 2013

You learn a lot about your colleagues when you work with them on a case.

I am now working on two court-appointed appeals, and in both cases, I contacted the trial attorney to discuss the case with them and to get the trial file.

Both attorneys were pleased to hear from me; both were pleasant on the phone. In one case, I had the trial file sent to my office within a couple of days. Everything was beautifully organized. It was also complete:  I had exhibits, transcripts, photographs, trial notes, and everything else I needed. In the other case, the attorney promised to drop the materials off in my mailbox at the courthouse. He never did. He also stopped returning my phone calls. It is not that I could not get most of the required materials elsewhere. It just required a whole lot more effort on my part.

The first lawyer was retained; the second one court-appointed.

I myself accept court-appointed juvenile cases and appeals, so it is hard for me to dump on other court-appointed lawyers. Most of the lawyers I know who take court-appointed cases are absolutely first-rate. And then, of course, there are the outliers, the ones who take more cases than they can possibly handle. They don’t return client phone calls. There is no way they can do the required investigation or adequately prepare for trial. And they end up pressuring their clients into taking an easy plea. If they were at a public defender’s office and performed like this, at least at the two organizations with which I am familiar, they would quickly be shown the door. There does not appear to be the same degree of supervision or oversight for court-appointed lawyers.

Over at The Defense Rests, Paul Kennedy looks at the 2011 numbers for court-appointed lawyers in Harris County, Texas, and finds that there are a small number of lawyers in the County who command a “lion’s share” of the court-appointed work:

Harris County supposedly uses a series of methods to appoint counsel:  some courts have contract attorneys, some courts use the Public Defender’s Office (not an option in 2011) and some courts use “the wheel.”  The wheel is supposedly to assign attorneys randomly to courts and/or cases.

The numbers revealed, as Mr. [Robin] Fickman points out, that it’s the judges who control the appointment list in Harris County.  And, as anyone who has ever practiced criminal law knows, the most important priority for a judge is to move cases off the docket.  And those cases don’t get moved by taking them to trial and holding the state to its burden of proof.  Those cases get moved by pleading them out – one after another.

There is one lawyer, for example, who received 255 juvenule appointments, 387 misdemeanors appointments and 278 felony appointments. In other words, he was appointed to 920 cases in a single year. As Kennedy points out, this means that if the lawyer worked year-round, he would have been received 18 criminal appointments per week and 3.5 appointments per day. That caseload would be four times what the National Advisory Commission has recommended as the maximum caseload for an attorney. Writes Kennedy:  “There is no way that anyone can convince me that it is possible for one attorney to provide effective representation to that many clients over the course of one year.”

That is Harris County, Texas.  Fortunately, the court-appointed system in D.C. has some built-in safeguards that prevent lawyers from over-extending themselves. The D.C. Court of Appeals uses what Kennedy describes as the “wheel system” in which appointments are rotated among all the attorneys serving on the panel.  This assures that the case-load is evenly distributed.

Attorneys doing juvenile work sign up for three “pick-up” days a month. With the small number of juveniles coming into the system each day in the District, you could not over extend yourself even if you wanted to: You can sometimes spend an entire day in JM-15 without picking up a single case.

Finally, although there is no limit on the number of adult court-appointed cases you can pick up, there is a cap on the amount of money you can make each year doing court-appointments. This means that if you want to front-load your case-load early in the year, you will not be able to accept cases later in the year – unless, of course, you want to do them pro bono.  As I understand it, exceeding this cap is grounds for removing the attorney from the panel.

It is difficult to imagine any attorney deriving career satisfaction from lining up clients and pleading them out. You get a lot of disgruntled clients. I can’t imagine you have any self-respect. You open yourself up to all sorts of ethical and disciplinary problems.  And you will never develop the reputation you need to do anything but court-appointed cases, assuming you don’t get tossed off the panel in the first place for poor performance.

More like this:

On Rushed and Ill-Considered Guilty Pleas

A Public Defender Just Doing His Job

Why I Like D.C.’s Public Defender Service

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