Thursday, February 03, 2000
Public defenders' pay near lowest
That endangers the defense of poor clients, lawyers say
BY DAN HORN
The Cincinnati Enquirer
No matter what charges they face in court, every low-income defendant in Hamilton County has one thing in common: Their lawyer is paid less than almost any other in Ohio.
State records show Hamilton County ranks 87th out of Ohio's 88 counties in the hourly rate paid to its court-appointed public defenders.
The pay rate of $30 an hour — 57 percent below the state average — is the same wheth er the case is a minor felony such as theft or a death penalty case in which the defendant's life is on the line.
The result, say some prominent lawyers, is a system that provides the poorest defendants with lawyers who are inexperienced, desperate for work or financially unable to do the job well.
“The level of compensation in Hamilton County virtually assures ineffective assistance of counsel,” said Cincinnati attorney Robert Newman. “It's a rotten system.”
Concern over the low pay rates prompted Mr. Newman to send a letter to several attorneys last month seeking input for a lawsuit he is preparing to file against the county.
Although Mr. Newman would not discuss his plans, the letter indicates he will argue that running a public defender program “on the cheap” has caused damage.
The letter suggests the greatest damage is done to the low-income defendants who count on court-appointed lawyers to be their first and only line of defense.
“The implications are that criminal defendants are not fairly represented,” Mr. Newman said.
Public Defender Louis Strigari said most court-appointed lawyers do good work, but he admitted it's becoming more difficult to find attorneys willing to do the job.
With rates for other legal work topping $100 and $200 an hour, there's stiff competition for their time.
Mr. Strigari said the $30 hourly rate is so far below the $47 state average that nearly 100 lawyers have dropped out of the public defender program during the past year.
Those who left, including several veteran attorneys, accounted for about a third of the lawyers who had agreed to serve as public defenders.
Mr. Strigari said he will try to slow the exodus within a few weeks by asking county commissioners for a raise of $5 to $10 an hour.
“I'm losing experienced counsel and we're not being replenished,” Mr. Strigari said. “People who have been on the list for 10 or 15 years are getting off because they can better use their time.
“It causes me concern.”
He's not alone. Even Prosecutor Mike Allen, whose office battles public defenders every day, thinks the hourly rate is too low.
“I think it's an insult that those lawyers aren't paid more,” Mr. Allen said. “It's not appropriate to compensate at that level. It's one of the toughest jobs in the system.”
The job is based on the principle that everyone — including those who cannot afford to hire a lawyer — will have legal representation if they are accused of a crime.
The public defender's office provides that representation. Staff attorneys are paid a salary to handle misdemeanor cases, while the more serious felony cases are farmed out to attorneys in private practice.
About 150 attorneys put themselves in the rotation for public defender cases, and it is those attorneys who are paid the $30 hourly rate.
The county pays 54 percent of the rate and the state reimburses the remainder.
Although the state will reimburse for rates of up to $60 an hour, Hamilton County commissioners have not approved an increase in more than 10 years.
While $30 an hour may sound like a good wage, those who work in the system say it's a losing proposition for attorneys running a private practice.
The Ohio Public Defender's office estimates that expenses — office space, utilities, equipment and staff — cost most attorneys about $50 an hour.
“At 30 bucks an hour, I can't imagine that can even cover overhead costs,” said Rebecca Herner, who runs the state public defender's county outreach program.
Historically, those willing to do the work have been new lawyers trying to build a practice and veteran attorneys who consider the work a kind of public service.
Cathy Cook, one of the veterans, took her name off the public defender's list in 1998 because she could no longer afford to do it, at least not the way she felt it should be done.
She said a murder case she handled three years ago cost her practice thousands of dollars because she invested so much of her own time. “I lost my shirt on that,” she said. “I'm still paying it off.”
Like Mr. Newman, she fears most attorneys are unwilling or unable to take a financial loss to defend an indigent client. And if they don't, the client could lose the most important battle of his or her life.
“It's an abomination,” Ms. Cook said. “The problem is nobody cares if (public defenders) are good lawyers and they don't care if they're providing an adequate defense.”
They should care, she said, because the legal system is only effective if everyone involved is willing and able to do their part.
Critics of the system argue that underpaid public defenders are more likely to make mistakes that could lead to costly mistrials, bad deals for their clients and, possibly, innocent people in prison.
Ms. Cook, past president of Cincinnati's Criminal Defense Lawyers Association, said the low pay tends to attract the least experienced attorneys and encourages them to cut corners.
With only so many hours in a day, she said, common sense suggests a lawyer won't spend much time working on a $30-an-hour case.
“As much as you want to give every case your best possible effort, how can you when you can't even cover your office expenses?” she said. “It's really sad. It's a joke.”
Some say the system is at its worst in the cases that matter most, such as aggravated murder trials that could end with a death sentence.
The stakes are especially high in Hamilton County because it sends more people to death row than any other county in the state. It also pays public defenders less to represent those people than almost any other county.
“In a capital case, the state puts on its best prosecutors to try the case,” said defense attorney John Burlew, who has tried several murder cases. “But the appointment for defense counsel is not held to the same standard.”
He said the defense lawyers are plucked from the public defender's dwindling list and tossed into battle against better-funded and more experienced prosecutors.
Although the maximum fee for public defenders rises to $6,000 in murder cases, the hourly rate remains the same: $30.
For the same service, a client who could afford to hire a lawyer might pay as much as $200 an hour.
Mr. Burlew said public defenders in those cases go against prosecutors who are on salary and do not have to worry about paying for office space, secretaries or other expenses. They can invest as much time in the case as their boss will let them.
Attorneys in private practice must juggle the case, no matter how important, with a host of other jobs that might actually help pay their bills.
“When you hire a lawyer, you want them to do the very best they can, to leave no stone unturned,” Mr. Burlew said. “For $30 an hour, it's not going to happen.”
He said money should not be such an issue, especially when the defendant is facing a death sentence.
“We're talking about people's lives here,” Mr. Burlew said.
Unless something changes soon, he said, the work done by public defenders will be akin to charity. And that, he said, is no way to provide legal help to those who cannot afford to buy it themselves.
County Commissioner Bob Bedinghaus said county officials will consider raising the pay rate if the need is there.
If they don't raise it, Mr. Newman said, the issue could go to court. In his letter, he said his lawsuit will seek an order requiring the county to increase the rate.
“It's a system that holds its hat out and asks attorneys to donate their resources,” Mr. Newman said. “It's basically a charitable system when it works, and it doesn't always work.”
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