Common plea: Fix flaws

By Ed Runyan

runyan@vindy.com

YOUNGSTOWN

Former Mayor Jay Williams has used the word dysfunction to describe the state of the Mahoning County criminal-justice system.

He’s not the only one who has made that assessment.

“It’s time for fewer plea bargains, more trials, stiffer sentences and more accountability,” Williams said in January, several months after the brutal murder of an elderly South Side resident — the second in less than a year.

The criminal-justice system has come under fire for operating too slowly, causing defendants to stay too long in the county jail, causing the jail to be overcrowded, causing a civil-rights lawsuit that led to reducing the number of inmates.

Prosecutor Paul Gains tried to speed up the system, hiring five assistant prosecutors. This winter, however, when he tried to give assistant prosecutors a pay raise costing $197,000 to try to keep them from leaving for other jobs, it set off a dispute with county commissioners.

Debate over the raises continues. Furlough of employees in Gains’ office may be necessary if the office’s money runs out by year’s end.

The Ohio Supreme Court reported that Mahoning County Common Pleas Court had the state’s fourth-largest backlog of criminal cases in 2005. At the end of that year, there were 322 criminal cases pending beyond the Ohio Supreme Court’s guideline that criminal cases should be completed within six months. It has since dropped to 209.

The civil-rights lawsuit resulted in the formation of the Mahoning County Criminal Justice Working Group, which tried to help make the system run better.

One result was the hiring of three additional magistrates to help the five common-pleas judges handle much of their caseload of noncriminal cases, such as lawsuits. Each magistrate makes $74,651 annually, which comes out of the court’s budget.

Though the additional magistrates and assistant prosecutors have helped, Gains said recently there are indications the system is backsliding, with a symptom of the court’s troubles from 2005 cropping up again — the number of criminal trials being scheduled in the same court on the same day.

“Unfortunately, several judges seem to be going back to that practice ... where more than four cases are being scheduled for jury trial on the same date,” Gains said in a letter to county commissioners in April. He attached a copy of the court schedule for May 2, 2011, which showed seven jury trials in two courts, four in two others and two in the fifth.

Gains also said jail stays appear to be getting longer again, and the percentage of cases being completed each year is falling.

Privately, court insiders say Mahoning County’s courts just operate slowly in too many cases, with too little being accomplished when defense attorneys and assistant prosecutors meet for pretrial hearings.

One judge, R. Scott Krichbaum, has established expectations that get results, one official said.

In May 2007, The Vindicator published an article comparing Mahoning County Common Pleas Court to a court in neighboring Stark County, and it showed a dramatic difference.

The two counties are similar in many ways, including number of criminal cases handled by each court and number of judges.

But in 2007 — and still true today — the backlog of cases in Stark County is zero, while Mahoning County’s backlog has been 200 to 300.

For 2011, The Vindicator compared Mahoning County to another county with similar characteristics: Trumbull.

Mahoning and Trumbull counties are similar in terms of population. Mahoning had 238,823 people in 2010, Trumbull 210,312. Stark had 375,586.

But Mahoning County’s neighbor to the north has fewer new criminal cases — 763 were filed in Trumbull County Common Pleas Court in 2010, compared with 1,275 in Mahoning. Trumbull County also had fewer cases pending in 2010 than Mahoning — 106 compared with 209.

There’s no one person who understands all components of either county’s justice system or anyone who dares to compare the two because of the complexity of that challenge and danger of offending. But through dozens of interviews and examination of budgets and staffs, The Vindicator has identified two areas for comparison: defense attorneys and prosecutors.

Defense attorneys

Among the most obvious differences between the two counties is the way Mahoning County provides an attorney to defendants who don’t have the money to hire their own. Statewide, 70 percent to 80 percent of defendants get a government-paid attorney.

Mahoning is one of the few large counties in the state that uses court-appointed attorneys. Each of the county’s five general-division common pleas court judges takes a turn appointing attorneys to defendants who can’t pay — called indigent defendants. Attorneys, drawn from a list provided by the Mahoning County Bar Association, are paid an hourly rate set by the county commissioners.

Trumbull County, conversely, has had a public defender’s office since 1984. It employs two full-time attorneys and 16 part-timers who cover specific courts and provide indigent defense.

Attorneys Jim Lewis and Anthony Consoldane were the full-time attorneys who worked for the office until they retired this year. Matthew Pentz, a Niles native, was hired to replace Lewis and is interviewing candidates to replace Consoldane.

One way to compare Mahoning’s court-appointed system and Trumbull’s public-defender system is cost.

Mahoning County paid about $2.4 million for the 12 months March 2009 to February 2010 for indigent defense, and the state of Ohio reimbursed about $890,000 of that, for a bottom-line cost of about $1.5 million to Mahoning County, according to the Ohio Public Defender’s Office, which handles reimbursements.

Trumbull County’s public defender’s office operated on $1,006,472 in 2010. The county paid $654,207 of that, with the state paying the other $352,265. The county also paid $62,724 to attorneys who were appointed when the public defender’s office couldn’t handle a case because of a conflict of interest. The bottom-line cost in Trumbull County is about $700,000.

But there are other issues to consider with court-appointed attorneys, said Tim Young, director of the Office of the Ohio Public Defender. One is that the quality of representation by public defender’s offices may be better.

Young cited a 2010 study by Thomas Cohen of the U.S. Bureau of Labor Statistics showing that defendants in 75 of the largest counties in the United States in 2004 and 2006 represented by public defenders were convicted at a lower rate (73 percent) than those defended by court-assigned attorneys (78 percent).

The study also said a lower percentage of defendants with a public defender went to prison (32 percent) than those represented by a court-assigned attorneys (46 percent). Also, the mean sentence length was less for defendants with public defenders (23 months) than for those with court-assigned attorneys (35 months).

Another factor is the improved efficiency of having a stable of attorneys in a public defender’s office who handle little else but criminal defense and become especially familiar with the operation of the court in which he or she works, Young said.

Larger counties such as Mahoning especially use public-defender systems, either run by the state or by the county, Young said. Lorain (301,356 population in 2010) is the only other large county in the state not using a public-defender system.

“I don’t think it makes any sense for a large county not to have a public defender’s office,” Young said.

Economy of scale becomes a factor in large counties, Young said. A public defender’s office can compensate for fluctuations in caseloads.

Young said the type of system Mahoning County uses also violates the first principle cited by the American Bar Association in regard to providing attorneys for indigent defendants: independence.

“The public-defense function should be independent from political influence,” the ABA said in 2002.

Young said that if the judges are appointing defense attorneys and not having an independent board do it, it can present problems that “can result in some very large downstream costs.”

Among those costs are the cost of appeals, reversals and retrials, as well as the additional cost of longer prison and jail sentences that statistically go along with court-appointed counsel, Young said.

“The judges shouldn’t be selecting the lawyer,” Young said, adding that such a system may not affect the behavior of the judges, but it most likely affects the behavior of defense attorneys.

“The lawyer certainly knows who pays the paycheck at the end of the day,” Young said. “The lawyer still has the sense of who selected them. Even if it is unintended, there certainly is that bias.”

Common pleas Judge Maureen Sweeney, a member of the Mahoning County Criminal Justice Working Group and the court’s administrative judge, says the group has discussed the possibility of starting a public defender’s office here, “but it never got off the ground.”

“The criticism [of using court-appointed attorneys] is you really don’t get enough good attorneys willing to take court appointments, but it doesn’t appear to be that way in Mahoning County,” Judge Sweeney said.

“What you try to do is go equally across the board,” she said of the appointments. Each judge handles appointments for three months in rotation. Asked whether that could lead to politically motivated appointments, Judge Sweeney said: “I don’t see that happening, especially since we rotate the way we do.”

As for whether the appointment of defense attorneys by judges or the use of court-appointed attorneys instead of public defenders is a reason why Mahoning County’s court system has a backlog of cases, Judge Sweeney said: “I don’t think court appointments have anything to do with that at all.”

Judge Sweeney said she thinks Mahoning County’s court-appointed defense attorneys are experienced enough to provide a high quality of legal service to their clients.

Mahoning County Commissioner John A. McNally, an attorney who also was a member of the Criminal Justice Working Group, said he’s never heard anyone complain that anything is wrong with having the five sitting judges appoint the defense attorneys.

Trumbull County Prosecutor Dennis Watkins declined to compare the criminal-justice systems in Trumbull and Mahoning counties, but he was willing to talk about Trumbull County’s public defender’s office, which he said has been effective and efficient.

“In my experience over 30 years as a prosecutor and trial lawyer, the public-defender system has worked well in Trumbull County,” he said. “On the other hand, private counsel have also done an excellent job.”

Watkins said Trumbull County’s public defenders have experience in a variety of types of criminal cases and understand the “practice and procedure” of the courts in which they work.

“As prosecutor, I want an effective defense because in the long run, our convictions will be upheld [at the appeals court level] if the defense has the tools to effectively represent the clients,” Watkins said.

Wrongfully accused defendants also will be “filtered out sooner” with effective counsel, Watkins added.

Prosecutors

In defending the raises he gave to his assistant prosecutors, Gains has compared his office with Watkins’ office on numerous occasions.

In his April letter to Mahoning County commissioners, Gains said his 15 assistant prosecutors handling criminal cases are still paid 10 percent less than the eight Trumbull assistant prosecutors handling criminal cases, even after 32 Mahoning County assistant prosecutors received raises totaling $200,000. Other attorneys in Gains’ office handle civil matters, such as giving legal advice to county and township officials.

Gains, citing 2009 Ohio Supreme Court statistics, said his assistant prosecutors completed an average of 127 cases per assistant prosecutor, while Trumbull assistant prosecutors completed 89 each.

Using a different set of Supreme Court statistics, however — number of new cases entering the system in 2010 — Trumbull County assistant prosecutors handled 95 per assistant prosecutor, while Mahoning County assistant prosecutors handled 85 per assistant prosecutor.

There’s no question Mahoning County has more crime than Trumbull County — Mahoning had 1,275 new criminal cases in 2010, Trumbull had 763, the Ohio Supreme Court said. Mahoning County judges completed 1,710 criminal cases in 2010, while Trumbull County judges completed 724.

Judge Sweeney said she questioned why Gains thought adding five more assistant prosecutors in 2005 was going to improve the efficiency of the Mahoning County criminal-justice system.

“Prosecutor Gains thought having two prosecutors in a courtroom would move things along more quickly, but there’s only judge,” she said. “We question it because you can only do one thing at a time.”

Gains cites a chart produced by the Community Corrections Association Inc. that shows Mahoning County felony convictions rising from 712 in 2005 to 1,353 in 2010.

Youngstown City Prosecutor Jay Macejko, who says he’ll run for Mahoning County prosecutor in 2012, says Gains’ office fails to take advantage of something Trumbull County employs called “vertical prosecution.”

In Trumbull County, assistant prosecutors present their own felony cases to the grand jury and follow the case through to the end. Likewise, vertical prosecution refers to having a large number of specialists — assistant prosecutors who know a great deal about — and handle — certain types of crimes.

“It allows you to get through the smoke screens,” Macejko said, because assistant prosecutors who know the defendant’s family and associates will better know how to prosecute the case, just as police officers who know that information are better able to investigate crimes.

Gains uses vertical prosecution in some areas and said he believes a more vertical style of prosecution is probably more efficient, but he uses less vertical prosecution because of the type of case-assignment system used in Mahoning County Common Pleas Court.

“That requires the type of assignment system Trumbull has,” Gains said, adding that he attempted to use that system two to three years ago, and the Mahoning County judges said it wasn’t legal.

Judge Sweeney said the judges attempted to keep cases out of the court system that didn’t belong there by not assigning cases to a judge until after the defendant had been indicted. It wasn’t a question of legality, she said.

But Judge Sweeney said she doesn’t know why that would prevent Gains’ office from assigning an assistant prosecutor to a case prior to indictment.

Ken Bailey, who worked 35 years as assistant prosecutor, retired as a Trumbull County assistant prosecutor in 2008 after 11 years there. He worked as a Mahoning County prosecutor eight years before that.

Bailey said he understands why Gains would like to have a more-experienced team of prosecutors.

“You have to have people with experience,” Bailey said. “You have better results with a career prosecutor. It takes about two years to season a prosecutor. They can’t prosecute right out of law school.”

Trumbull assistant prosecutors do appear to make more money than Mahoning assistant prosecutors. Two in Trumbull County, Chris Becker and now-retired James Misocky, made more than $100,000 in 2010. Mahoning County’s top-paid assistant, Nicholas Modarelli, made $80,000.

Most of the eight Trumbull County criminal prosecutors made between $60,000 and $70,000 in 2010. Most of the 15 Mahoning County criminal prosecutors made less than $60,000 in 2010.

Atty. Tom Zena has worked 34 years as a defense attorney and assistant Mahoning County prosecutor. In the past 20 years, he has represented defendants in Mahoning and Trumbull counties.

Zena said he thinks there is room for more efficiency in the Mahoning County justice system, including the prosecutor’s office.

“These days you have to save money where you can,” Zena said.

Zena said he wonders whether the hiring of five additional assistant prosecutors did much to help improve the justice system.

“It seems like you see some people up front a lot more than others,” Zena said of assistant prosecutors, meaning he wonders if some assistant prosecutors don’t have enough to do.

He said the court probably could save money also by cutting down on the number of times different attorneys are hired to defend the same person on multiple charges.

“One lawyer should be doing that,” Zena said.