Let the Government Clean Up its own Mess

Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today’s Rebirth of the Megatrial.

In the first, Scott argues that New York’s appointed counsel system was not intended to, and should not, provide livings for criminal-defense lawyers:

[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar — “massive indictments inexorably lead to massive trials”, for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But

there is a strong likelihood that many (if not all) of the defendants will be unable to retain counsel to represent them in this matter. Between the limitations on funds available for use to retain counsel, the sheer anticipated length of this case, the potential conflicts of interest that will preclude the usual assortment of lawyers who represent alleged organized crime figures, it is hard to imagine that many defendants will be capable of retaining counsel for the trial.

We’re talking about a possible year-long trial, if history (the Pizza Connection case, which saw 22 defendants tried in a converted gymnasium for more than sixteen months) is an indicator (but N.B. the Pizza Connection case wasn’t tried in the Carnival of Snitches that is today’s federal criminal justice system; since then the system has developed to create incentives for snitches so that prosecutors can avoid most trials entirely).

Think of the economics of that: to hire a rational lawyer to try a case for a year, first you’ll have to pay her for the months and months, if not years of anticipated pretrial litigation, evidence review, and trial preparation. If the case went to trial for a year, you would have to pay that lawyer much more than her anticipated gross for that year. She’s not going to be working on much aside from your case, so you’ll be paying her rent, Westlaw bills, staff, insurance, utilities, and everything else that she needs to stay in business. Further, there is a vast and incalculable opportunity cost to her for trying your case for a year; you’ll have to cover that too.

This being New York, the trial costs won’t have to be paid up front, and you can’t buy trial insurance. So you’ll have to deposit the anticipated cost of a trial in your lawyer’s trust account so that she has it available in the event of trial.

How much money are we talking? In New York, I think it’s safe to say that competent counsel with more than a few years of experience is going to require a deposit at least in the high six-figures to take one of these cases and commit to trying it. None of the New York criminal-defense lawyers I know well would — or should — blush to ask for over a million dollars to take on this case.

But what if you’re an alleged crime boss, and you don’t have a million dollars hidden under the birdseed? What if, as Scott suggests, you are one of the many who is unable to retain counsel to represent you in this matter?

If you’re one of the 62 defendants in federal court, you’ll most likely be appointed a CJA panel lawyer. This lawyer will be paid $100 an hour for every hour spent representing you. Just for a year-long trial (not for any of the lead-up, which will probably in itself take thousands of hours) he’ll probably earn $300,000-plus of taxpayers’ money. That might seem like a lot of money for a year of work until you consider that he has to pay his fixed overhead, office expenses, staff salaries, phone bill, library bill, insurance and so forth out of that while not having any other business. New York is an expensive place to practice; a lawyer with spartan tastes in overhead might finish the year netting (WAG here) $150,000 of taxable income — a little less than a BigLaw first-year associate gets paid. That lawyer, however, will have seen his practice (if he had one) decimated by the yearlong trial.

If you’re one of the 26 defendants in state court, you’ll be appointed 18b counsel. He’ll be paid $60 an hour for out-of-court work and $75 for in-court hours — less than 3/4ths of the CJA lawyer’s pay. And at the end of the yearlong trial the lawyer will net maybe $75,000, will have seen his practice (if he had one) decimated, and will (if the reforms that Scott favors are instituted) be pretty much out of 18b work as well.

So what kind of lawyer would voluntarily take one of these cases without more than half a million dollars in the ol’ trust account against the eventuality of trial? That is, who’ll take the case on the government’s nickel?

An independently-wealthy true believer, for one. A lawyer who didn’t care at all about money, and whose spouse didn’t care at all about money, for another. Good luck finding either of these.

A lawyer who doesn’t have a practice to maintain, or who isn’t thinking ahead, or who thinks that taking such a case will be a good way to make a name for himself. Would you really want any of those representing you?

Who’s left?

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  1. http://youtube.com/watch?v=sXe40XLPGjk&feature=related

    “The deterioration of every government begins with the decay of the principles on which it was founded.”~Charles-Louis De Secondant (1689-1755) Baron de Montesquieu (Source) The Spirit of the Laws, 1748


    The Texas Lawyer’s Creed

    “I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.”

    The most damaging injustices being committed in the legal system today are perpetrated by attorneys who do not do their job to the best of their ability.

    Most District Attorney’s have developed a ‘cop mentality’. They only see in black and white, mostly black. DAs use words like monster, evil, and unforgivable over and over to describe every defendant who comes before them. In their minds, every case has a defendant who premeditated whatever he’s accused of and his just punishment is damnation to the pits of hell with no further thought. No defendant is ever appropriately ‘contrite’. No defendant is ever telling the truth and no defendant is ever ever innocent, no matter how much proof to the contrary exists. We can thank district attorneys for their crucial role in the inncocent people going to prison.

    Kay Lee’s Letters to Toby Shook

    I have nothing but scorn for lawyers who are cashing in on bad laws and the resulting prison boom. I get letter after letter from trusting people who paid $10,000, $20,000, $40,000 to a lawyer who appeared to be sympathetic and accessible – UNTIL they got the money, at which time they suddenly are never available, never return phone calls, and arrive in court ill-prepared to present anything but a sloppy case. The majority of lawyers take on more cases than they can possible defend properly, then they urge a plea agreement so they can move on and snag the next unsuspecting client’s money. It’s sinful, shameful, and absolutely disgusting that a once honorable profession should be reduced to this.


    Court appointed attorneys are doom for poor defendants. They are so notorious for slacking that they are usually and rightfully called “Public Pretenders”. I’ve watched them come into the courtrooms staggering under piles of files they haven’t read until they can quickly peruse them while standing at the bar with a defendant they have barely spoken to and whom they are most likely urging to take a guilty plea just to get the case off the books.

    I make excuses for the public defenders; the system is overburdened, too many laws make too many criminals, there’s not enough public defenders; but whatever the reason, it is totally unAmerican for a defendant not to get the best representation a lawyer has to offer. No wonder there are so many innocent people in prison! Kay Lee

    No wonder they call them “Public Pretenders”

    We would like you to meet Dallas lawyer/public defender, Thomas R. Grett.

    Thomas Grett was appointed by the court as Lakeith Sharif’s public defender. He failed to defend Mr. Sharif’s case, failed to keep him out of the state hospital, and failed to file all Sharif’s motions. When Sharif contacted him by phone about the motions, with a witness on the third line, Mr. Grett was most unprofessional. Grett called Sharif names, including the immoral, if not illegal, racial epitaph “nigger” and told him to never call again. For these reasons, Sharif has asked that Mr. Grett not be allowed to be his lawyer, as Sharif would rather defend himself than have the defense of someone who so obviously couldn’t care less.

    As you read Sharif’s legal work below, Keep in mind what Dr. Lisa Clayton told the judge:

    “Mr. Amir-Sharif does not have a rational understanding of the charges against him, nor does he understand the possible penalties or various duties of courtroom personnel in a trial process.”

    Sharif wrote all the legal work below. Pretty good for an ‘incompetent’, yes? Kay Lee


    Written by Lakeith Sharif
    Mailed April 14, 2005

    by Lakeith Sharif
    Written May 3, 2005

    by Lakeith Sharif
    Mailed May 8, 2005

    Written by Lakeith Sharif



    By Lakeith Sharif
    Stamped Received May 6, 2005

    Dated May 9, 2005

    Dated June 2, 2005

    Dated June 17, 2005

    Written by Alida Smith, Witness
    dated June 19, 2005

    State Bar of Texas
    Jun 28, 2005

    Questions Regarding Public Defender’s Office


    Non-performance of duties.

    “It isn’t about truth, it isn’t about justice–it’s about convictions.”
    ~One Man’s Attorney


    Name: Dallas Criminal Lawyer – David Finn
    View my complete profile

    David’s Blog

    Read DMN Editorial: Dallas Jail-More of the Same

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