A new report raises questions about whether children accused of crimes in Cuyahoga County are getting the best possible legal representation – and about whether the juvenile court’s system for assigning private attorneys is influenced by the preferences of judges. 

In particular, the report notes that county public defenders have a better track record of keeping children accused of serious crimes from being transferred to adult court. It also calls into question whether the private attorneys judges pick to represent children meet state qualifications to handle the cases. That could put state reimbursements to the county in jeopardy. 

For years, the Cuyahoga County Public Defender’s office has maintained that its attorneys are assigned to represent too few children, even though the office has resources and capacity. 

Last year, Chief Public Defender Cullen Sweeney prodded the court to assign more cases to the office. In a letter, he pointed out that the court’s six judges assigned the office to fewer than half of delinquency cases, which involve a child accused of a crime. He also asserted that the court wasn’t following state rules that require judges to fairly distribute cases to private attorneys and to make sure those lawyers are qualified to represent children. 

Wren Collective, a criminal justice reform policy group, compiled the report. It is publishing a series of reports across the country about the right to counsel in the lead up to the 60th anniversary of Gideon V. Wainwright, a landmark case that extended the right to people facing charges in all criminal courts across the country. The work was supported by Arnold Ventures. 

“The right to counsel is critical, especially for kids, where a decision to send them to adult court and adult prison will have life-long ripple effects,” said Nikki Baszynski, the report’s lead author, who is an attorney and a former state public defender. 

The report found that:

• Cuyahoga County uses public defenders far less than other large counties to represent children accused of crimes.
• The way juvenile judges pick attorneys for cases runs afoul of state rules, which require the selections to be free of influence. 
• Judges assign delinquency cases to a small number of private attorneys, contrary to state rules.

Read the report: Gideon at Sixty: Advancing the Right to Counsel for Kids in Cuyahoga County

Cuyahoga County Juvenile Court previously agreed to some changes 

Earlier this year, Cuyahoga County Juvenile Court Administrative Judge Thomas F. O’Malley said the court would change its system of assigning attorneys and would be appointing county public defenders to a larger share of delinquency cases, which involve children accused of crimes.  

Despite that, the public defender’s office is still assigned to fewer cases than its 28 juvenile division attorneys can handle, according to the report. And the court’s six judges vary widely in how often they assign cases to the public defender’s office or to private attorneys. 

In the first six months of the year, Judge Jennifer O’Malley assigned 17.3% of cases in her courtroom to the public defender’s office. Judge Alison Nelson Floyd used the public defender’s office more frequently, at an almost 53% rate, according to the report. 

Last year, a spokesperson told Signal Cleveland that the court was “lucky to have both an exemplary Public Defender’s office and assigned counsel list, many of who[m] specialize and have extensive experience in delinquency and bindover level offenses.” 

Signal Cleveland has reached out to Juvenile Court officials and will update this story with their response.

A bindover is a process where children, sometimes as young as 14, are transferred to adult court. Learn more in this bindover explainer.

The court maintained that “each case can call for a specialized attorney and each appointment allows the jurist to consider the attorney who can best represent each individual youth and family.” 

But public defender’s offices in other large Ohio counties — Franklin, Hamilton, Montgomery and Summit — are often automatically assigned to represent children in delinquency cases unless there is a conflict, according to the report. In Cuyahoga County, the public defender’s office has been assigned to between 25% and 35% of delinquency cases in the last three years.

“Our children in the criminal justice system deserve the most qualified and best legal representation,” Kelly Woodard, a spokeswoman for County Executive Chris Ronayne, said in an email. The report highlights the need for “robust counsel for youth offenders, particularly with top-level public defenders, as it safeguards their rights, fosters equitable legal representation, and promotes rehabilitation.”

The administration will, over the next year, keep working with juvenile justice stakeholders on the issue, she added.

Cuyahoga County Council Member Michael Gallagher said the assertions in the report are not something for County Council members to address because the Juvenile Court’s judges are separately elected.

“We are not going to get into the business of what the court should do or how it should do it,” said Gallagher, who formerly was an administrator for the Ohio Eighth District Court of Appeals.

“If there’s shenanigans afoot, it would seem to me the Ohio Supreme Court would be the ones to deal with it,” he said.

But based on the report, Gallagher said the costs to pay public defenders to handle most of the cases as opposed to private attorneys would likely be “astronomical.”

Judges assign a handful of private attorneys to represent many children accused of crimes 

In Cuyahoga County, the court favors private attorneys to represent children in delinquency cases — and its judges select a small number of them for most of the case assignments, according to the report.

In 2022, for example, judges assigned more than 40 different attorneys to delinquency cases, but just five of them handled nearly half, according to Ohio Public Defender Commission reimbursement records analyzed by Signal Cleveland and The Marshall Project.

That same year, some attorneys were reimbursed for handling as many as 135 cases. 

Reimbursements issued by the state for the five most prolific attorneys for 2022 totaled more than $240,724, nearly half of the $512,631 reimbursements that all attorneys received, according to the records. 

Reimbursement records point to the lopsided appointment system, which is out of line with state standards. Three private attorneys received more than 100 reimbursable cases in fiscal year 2023 while 34 other court-appointed attorneys received less than a third of that number, according to the report. 

Cuyahoga’s appointment system flouts those rules and creates an indefensible risk that court-appointed lawyers will work to please the judge instead of their client.”

Gideon at Sixty: Advancing the Right to Counsel for Kids in Cuyahoga County

Children represented by public defenders had their cases transferred to adult court less often

Children represented by a public defender remained in juvenile court more often than if they were represented by an attorney paid for by their family or by a private attorney a judge picked for them, according to the report. 

The public defender’s special bindover team has represented 77 children in 102 bindover cases since it was started in early 2022 through Nov. 13, 2023. 

Of the 65 cases that have been resolved (37 are still ongoing), about 65% have remained in juvenile court, according to the Public Defender’s office. The largest impact has been with the discretionary cases, where 90% have remained in juvenile court.

In those cases, public defenders have to convince a judge that the child can be rehabilitated in juvenile court. To do that, they work with investigators and social workers and can hire experts to gather information to present in court. 

For each case kept in juvenile court, the child avoided an adult sentence — sometimes, a lengthy one — a permanent criminal record, and the safety concerns posed by adult prisons.” 

Gideon at Sixty: Advancing the Right to Counsel for Kids in Cuyahoga County

Appointed attorneys don’t appear to use experts or make as many in-person visits to children in detention  

In an interview with Signal Cleveland in January, one attorney who represents children accused of crimes said court-appointed lawyers have access to the same resources as public defenders.  An appointed attorney can request funding from the court for an investigator and can conduct family interviews themselves, Walter Edwards, an attorney on the court’s list of private counsel, told Signal Cleveland at the time. 

Following up on these comments, the Wren Collective reviewed records from the Cuyahoga County Juvenile Court and the Ohio Public Defender and did not find any motions for social workers or investigators filed in the first six months of 2023 by private attorneys. They also did not find requests for reimbursement submitted for those resources, according to the report. 

The absence of these requests and reimbursements shows a disparity in the structural quality of representation provided by the public defender’s office and private attorneys generally.”

Gideon at Sixty: Advancing the Right to Counsel for Kids in Cuyahoga County

The report also found that public defenders visit their clients more often — at least in person. The public defender’s office has attributed this to having their offices in the Juvenile Detention Center, a few floors up from where children are held. 

Wren looked at a group of children held at the detention center on Feb. 9 and analyzed how often they were visited by their attorney between January 2022 and June 2023. They found that, on average, public defenders visited their clients about three times more than private attorneys did. The review, however, included only in-person visits. It is possible for attorneys to conduct video visits with children in the detention center. 

Cuyahoga County’s Juvenile Court allows private attorneys to ‘self certify’ that meet state requirements to represent children

Judges use a list to select attorneys to represent children accused of crimes, including serious crimes such as assault, robbery and murder. The attorneys are supposed to have a certain level of education and experience in representing children, but the court doesn’t collect and check on those credentials, according to the application. The court can ask the attorneys to provide the information. The county’s adult court requires the information to be provided. 

More than half of attorneys listed as qualified to handle bindover cases in August 2023 didn’t appear to meet the requirements set by the state, according to a Wren Collective review of continuing legal education, which is tracked by the Ohio Supreme Court. Of 45 attorneys reviewed, the group said 27 were not qualified, 12 were qualified, and six were possibly qualified. 

The report recommended that the Ohio Public Defender Commission stop reimbursing the county for juvenile court private attorney appointments if the county doesn’t bring its appointment process into compliance with state rules by July 1, 2024.

Public defender’s office can take on more cases 

The county’s chief public defender and community advocates have both called for the juvenile court to appoint the office to represent more children accused of crimes. 

In January, the court agreed to start assigning more cases to the office using a system similar to the county’s adult court – appointing public defenders to cases with numbers ending in 1,3,5 and 7.

The exception would be if there was a conflict based on clients the office was already representing. Sweeney estimated this would increase assignments to the office to about 40% of all juvenile criminal cases.

Through the end of October, the public defender’s office had been assigned to about 35% of cases, a 7% increase from 2022, according to assignment data the office provided. 

Sweeney also asked that the public defender’s office be assigned to all cases involving the possibility of a transfer to adult court — unless a private attorney would continue to represent the child in adult court — and in any case where the office had already represented a child. The court did not agree. 

The report recommends that the juvenile court make the public defender’s office the default assignment for all delinquency cases unless there are conflicts. That system is more in line with other large juvenile courts in Ohio. 

The public defender’s office estimated this would cost an additional $1.04 million a year, some of which would be reimbursed by the state, according to the report. 

Community advocates with Greater Cleveland Congregations (GCC) have lobbied the county – including County Executive Chris Ronayne – to assign the public defender’s office more cases.

GCC members have spent more than two years researching the issue of youth bindovers to adult court, raising alarms about the high number in Cuyahoga County and the disproportionate number of Black children affected.

Recently, the group went to Cuyahoga County Council to ask that members support a recommendation included Ronayne’s budget that would have shifted money from the court to the public defender to increase its capacity for cases.

In a news conference at Olivet Institutional Baptist Church last month, pastors and advocates with GCC asked people to join them at upcoming county budget hearings to ask for more funding for the public defender’s office. 

“Just as we work as a society to change to improve our systems, we need our systems, even our juvenile system, to work to change to improve the future prospects of our youth,” Olivet Pastor Jawanza Karriem Colvin said. “And while holding them accountable, giving them the opportunity to become productive contributors to our society.”

That request was not granted, but County Council did include some additional funding in its 2024-2025 budget for the public defender’s office. The office plans to hire another public defender who will be assigned to bindover cases, an additional social worker and a community engagement attorney. It also will move a part-time attorney position to full time, Sweeney told Signal Cleveland.

The Marshall Project’s Weihua Li contributed data analysis for this story.