Trial By Fire

How can talented attorneys defend the dregs of society? With grit, dedication, and a taste for trouble.

Andrew Putz can be reached at [email protected].
This is where you go when Clarence Darrow haunts your soul, or at the very least, rattles your head: room 121 in a three-story Kleenex box of a building on Carnegie Avenue.

And this is what you see when you get there: a sign on the door, "U.S. Constitution honored here," surrounded by full-color renderings of superheroes like Spider-Man and the Incredible Hulk. Inside, desks. No, not desks, carrels -- like in a school library -- more than a dozen, stuffed into a room the size of a two-car garage. And boxes and files everywhere, piled up to the ceiling, stacked in corners, spilling onto the floor.

Moving in and out amid the rubble, a harried group of people huddle with folks who have been waiting on wooden benches in the hallway, asking questions like "So you do want to get your kids back, right?"

Meanwhile, every so often, a buzzer shrieks down the hall, and the deputies ask someone to empty his pockets and go through the metal detector again.

It's hard to imagine this kind of scene at any other law office in Cleveland. But then, the Cuyahoga County Public Defender's Office, Juvenile Division, isn't like any other law office. In the infinite and Byzantine expanse of American jurisprudence, juvenile public defenders, here and just about everywhere else, occupy a definitive spot -- the ground floor of the criminal justice jamboree.

That niche was created in 1967, when the U.S. Supreme Court ruled that juveniles have a right to legal representation. The high court had established that right for indigent adults just four years earlier, in a decision that continues to reverberate in courtrooms across the country. In 1992, the U.S. Department of Justice reported that more than 80 percent of criminal defendants charged with felonies in the nation's largest counties were represented by some form of publicly funded legal counsel.

Still, there's nothing glamorous about defending poor people accused of rape, murder, and robbery. At best, public defenders are invisible foils to the noble White Hats fighting the good fight in prosecutors' offices. At worst, they're viewed as hacks providing second-rate representation. Even their own clients often suspect them of being just another cog in a system biased against minorities and the poor.

"Overworked, underprepared, and largely incompetent" is how Assistant Public Defender Christopher Maher sums up the perception.

In juvenile courts, the problem is even stickier. Long considered a training ground for attorneys moving up the career ladder, juvenile public defenders' offices are afforded less status and even fewer resources than their adult counterparts. "I think it's changing, but traditionally that's been true," says Sam Amata, head of the Cuyahoga County Juvenile Division under Chief Public Defender James A. Draper. "Just look at the way we're housed."

Still, there's no better training ground for legal combat. For attorneys, this is where you go if you want to dive, plunge -- some say drown -- in the intricacies of criminal defense. This is where you will find out, for better or worse, if you can hack it in a courtroom, where you will be stripped of any romantic illusions about the capricious nature of truth and justice.

This is where you defend children: all poor, some good, some wicked and indefensible. It's where you will see the guilty go unpunished and the innocent go astray, all for the princely starting salary of $29,500 a year. This is where, sooner or later, you have to ask and answer the inevitable question: How can you defend these people?

Welcome to boot camp for criminal-defense attorneys.

Heavy Lifting

"How long is it going to be?" asks Assistant Public Defender Kristin Sweeney.

It's 10 a.m., rush hour on the first floor of juvenile court on East 22nd Street. Outside, Mother Nature can't make up her mind whether to rain or snow, and a gray, sloppy mess is being tracked in by the steady stream of people. Inside, dozens of kids and parents are huddled along the court's cramped first-floor hallway, waiting for their cases to be called.

Sweeney has slipped past the double doors at the end of the crowded corridor into a small stairwell, one of the few spots in the entire building where it's possible to have a quiet conversation. Awaiting her is Mark Marshall, an assistant county prosecutor. She's got a stack of files under her arm, all cases waiting to be dealt with this morning.

Sweeney needs to talk to Marshall about the case on top of her pile, a 16-year-old kid charged with criminal trespassing and misdemeanor assault. And she doesn't have time to wait.

"How long is it going to be?" she prods Marshall, who is discussing a case with another attorney.

"Less than five minutes," the other lawyer says.

"No more than five minutes," Marshall says.

"Five minutes is too long," snaps Sweeney, walking back through the doors and down the hallway to find another client.

Each public defender is normally assigned to either a judge's courtroom, where serious felony charges are heard, or, like Sweeney, to a magistrate, who handles lower-level felonies and misdemeanors. Because the office is short on lawyers, though, Sweeney has been assigned to two magistrate rooms. That means she handles 6 to 10 cases a day, ranging from pretrial proceedings to weightier disposition hearings, where a magistrate or judge metes out punishment to guilty offenders.

"Six or seven, I'm OK with," she says. "But eight or nine gets to be too many. I just can't get to them."

After low pay, this is the most frequent complaint -- too many cases. Last year, each of the 13 juvenile staff attorneys handled an average of more than 300 delinquency cases, about 100 more than the National Advisory Commission on Criminal Justice Standards recommends. "We have struggled with coverage," admits Amata. "[Chief Public Defender] Jim Draper has done a really good job with it -- we've been able to add staff. But we've never had enough staff attorneys to do what we're expected to do."

In the two magistrate courtrooms Sweeney now covers, public defenders worked 973 cases last year.

Besides burning out attorneys, high caseloads have significant consequences for the kids represented by public defenders. In 1996, the American Bar Association's Juvenile Justice Center reported that high caseloads in juvenile systems across the country were the "single most important barrier to effective representation" for children in delinquency proceedings.

"The impact of all this on youth in juvenile court is devastating," the study noted. "Children represented by overworked attorneys receive the clear impression that their attorneys do not care about them and are not going to make efforts on their behalf."

In Cuyahoga County, the situation has gotten worse in recent years. At one time, low-level delinquency issues -- fights, trespassing, petty vandalism -- were dealt with by an epistolary rap on the knuckles. The wayward child's parents would get a letter chiding them about what their child had done, the justice system's equivalent of a call from the school principal.

But because some kids continued to get in trouble, with no greater punishment than a fifth or sixth letter from the county, that practice was abolished. Now, those kids get put into the system. From 1997 to 1998, the number of "officially accepted" delinquency and unruly cases -- those not disposed of at intake -- increased by more than 5,200 (59 percent), even while the total number of those types of cases in the system declined. (Figures for 1999 were not yet available as of presstime.)

"We're still reeling from that," says Amata, who has been able to hire two attorneys in the past several months and will add three more by the end of the year.

Then there are kids like another of Sweeney's clients today, a 17-year-old who bolted to Florida in his parents' car. It's a case, she says, that reveals a "glitch" in the system.

Because the kid was brought to the county detention center and arraigned there, he was automatically assigned a public defender -- despite the fact that his parents just built a $400,000 home. Somewhere along the way, an assessment is supposed to be made of a family's ability to pay for a lawyer. But all too often, that doesn't happen. And by the time court officials figure out what's happened, the public defender already knows the case, and a judge or magistrate is reluctant to tell the family to shove off -- especially since some parents would forgo legal counsel altogether.

The resulting workload affects everyone at juvenile court, according to Sweeney. "I think everybody is overburdened," she says. "Things slip through the cracks. I don't believe there is negligence. But if we had more time, there are cases that need it."

Her first case today doesn't seem to be one of them. Luke is dressed in baggy Tommy Hilfiger jeans, a white Nautica sweatshirt, and white Jordans, and betrays little anxiety about the State of Ohio's case against him. He seems to know the routine.

"Okay, you've been charged with criminal trespassing," Sweeney says, kneeling down next to him to take notes on her gray legal pad. "What happened?"

Luke doesn't deny he trespassed, but he does have an explanation. He had been attending Richmond Heights High School, he says, but recently transferred to Warrensville. He was trying to retrieve some books and other belongings he left at Richmond Heights when he was busted there for trespassing. The other charge, a misdemeanor assault, was just a fight, he claims.

"The other guy didn't even go to the hospital," offers Luke's grandmother, who escorted him to the court this morning. "He was released."

There were no broken bones, which would have meant a felony assault. "We didn't have that here," Sweeney notes. "I'm going to go to the prosecutor and ask him to drop the assault charge."

She looks at Luke. "Do you want to admit to the criminal trespassing charge, if I get the prosecutor to drop the assault charge?"

Luke agrees. He wants probation, if possible. Sweeney goes back to Marshall, who, by now, has finished his confab with the other attorney. Well-known among public defenders for his reluctance to deal, Marshall surprises Sweeney by agreeing to drop the assault charge, if Luke will admit to criminal trespassing.

But Luke's got other problems. Just as his hearing is about to start in the room of Magistrate Peter Murray, Sweeney discovers that Luke has two other burglary charges pending -- second-degree felonies that will have to be dealt with by a judge upstairs.

Despite the new charges, Luke's case is dispensed with quickly. He admits to one count of criminal trespassing, and the prosecutor drops the assault charge. Even so, Luke can forget about probation. Thanks to the pending burglary charges, he isn't going anywhere except the detention center, to await his next hearing. One of the ubiquitous sheriff's deputies puts the cuffs on him and leads him away.

The rest of the morning follows suit. Sweeney stalks the halls searching out her clients and careens from magistrate room to magistrate room, working cases with brute efficiency. Like many in her office, Sweeney's résumé belies the notion of the second-rate legal hack as public defender.

Three years ago, she was practicing in a small private firm, building up litigation experience in civil cases, mostly dealing with employment and personal injury law. When her bosses dissolved their partnership, she decided to make the jump to criminal law -- something she had thought about since graduating with honors from law school at Case Western Reserve University.

She applied to both prosecutors' and public defenders' offices all over Northeast Ohio. "I just wanted to be in the system," she says. In the spring of 1998, she was hired in the juvenile division, the starting point for almost everyone who is hired by the Cuyahoga County Public Defender's Office.

Her former bosses were brutally honest about what she was in for. "They warned me," she recalls. "I think the words they used were "high volume -- in the extreme.'"

Today's docket is busy, though hardly extreme. There's a disposition hearing for Matthew, who was busted on a drug charge. He wants to be an architect, but he can't draw very well.

There's the 17-year-old kid enamored of the Sunshine State.

Then there's Chris, who's in trouble for walking away from Lincoln Place, a juvenile detention facility in Youngstown. He's also facing charges of misdemeanor theft and gross sexual imposition. Chris's mother is the one accusing him of attempting to molest his little sister -- an odd twist on the usual posture in juvenile court, where parents are often unwilling to admit a child's guilt, even in the face of compelling evidence.

Instead, Chris's mother is eager to have him plead guilty. "We wouldn't be here if you would act like you should," she says. "If you would act like a normal 15-year-old."

Tears stream down Chris's face. His mother is unrelenting, but Chris is adamant in his claims of innocence. "I can't, in good conscience, tell you to admit to something you didn't do," Sweeney tells him. Magistrate Charles Wochna has no choice but to set a trial date.

This last bit of business doesn't sit well with Sweeney, who makes no attempt to hide her feelings. On the way to lunch, she declares, "There's something about that mother I don't like."


Lunch is a low-budget affair across the street, at the cafeteria of St. Vincent Charity Hospital. Each day, the juvenile division staff gathers there to gripe about prosecutors, recount horror stories, and hash out problems.

Much of the credit for the collegiality goes to Amata, the juvenile division's lead public defender and its longest-serving attorney. Short, balding, with a bushy mustache and long, curly gray hair that flows down to his shoulders, Amata's affability and intensity set the tone for the office.

He came to the juvenile division 14 years ago, after working for several years on behalf of battered women as an attorney with the Free Clinic. Like many of the lawyers he now oversees, he had long identified with people on the margins of society. After all, it wasn't long ago that he was an outsider himself.

Born in Sicily, Amata immigrated with his family to the United States in the late 1950s, when he was just five. His family didn't have a car, so his ambitions failed to stretch beyond the known world of the neighborhood. His big dream was to be a Pepsi-truck driver, like his uncle. It wasn't until high school, when he started working at an upscale restaurant frequented by lawyers and judges, that he realized he could be an attorney.

Even so, Amata had worked his way through Kent State before he gave serious consideration to becoming a lawyer. A psychology major as an undergrad, he was considering doing social work. Instead, he decided to apply to law school and, much to his surprise, was accepted at Cleveland Marshall College of Law. "I think I went out the night before the [law school application test]," he says.

In law school, he became involved with the legal program at the Free Clinic. After graduation, he joined the program and was soon running it with the woman he would eventually marry. When it was absorbed by Legal Aid in the early 1980s, however, Amata decided to go into private practice. By then, he had developed an interest in criminal law. So when a friend in the public defender's office told him about an opening in the juvenile division, he jumped at the opportunity.

The office was going through some big changes at the time he came on board. After just a year and a half, he was offered a job as head of the division. "I was kind of ambivalent about it," he says. "I didn't know if I wanted to make a career out of juvenile. It meant I wouldn't get to felony."

Fourteen years later, Amata knows juvenile court as well as anyone in the city. To survive working there, he says, whether as a judge, prosecutor, defender, social worker, or probation officer, you need to build an emotional firewall.

"You gotta be able to punch out," he says. "I used to want to take some of these kids home. I can't tell you it doesn't get frustrating."

Usually, Amata can keep his professional distance. But he still gets an occasional case that sticks with him for days and weeks. Like Rachel's.

Rachel is 27. She has two daughters, a nine-year-old and a three-year-old, by two different men. She's married to the father of the younger child. They recently separated, and Rachel is now living with her grandmother in a one-bedroom CMHA apartment.

The County Department of Child and Family Services (CFS) decided that Rachel's children should be temporarily removed from her custody. In addition to representing juveniles in delinquency proceedings, in cases like this -- in which a parent wants to keep the children, but can't afford a lawyer -- the public defender's office represents the parent.

Which is why Amata is sitting at a small table in a corner of the juvenile court's dank basement, figuring out how to respond to allegations made against Rachel in a letter of complaint filed by CFS. As a mother and provider, she's far from ideal. She doesn't have a job, though she recently qualified for $373 a month in welfare benefits, along with $270 worth of food stamps. She's got a muscle disease akin to arthritis. To her credit, she's never been arrested, and her children are healthy and attending school. Still, she doesn't deny that her kids were around when she and her husband would fight. Once, the fighting escalated to a physical altercation.

"He had done something that really upset me," Rachel says vaguely. In response, she threatened to destroy his Hot Wheels collection. That's when he came at her. "I took a baseball bat and hit him across the shoulder," she says.

Police were called to the house. Her husband declined to file charges, but afterward, he told Rachel that, since he was the one making the money, she would have to be the one to leave. She eventually landed in the West Side Catholic Center shelter.

In its complaint, CFS cites a half-dozen reasons why the agency should take temporary custody of the children -- charges based on the incident of domestic violence, allegations of inappropriate punishment by the father, and, perhaps most hurtful to Rachel's cause, a time when the household didn't have enough food.

"It could go either way," says Amata.

The hearing is set up like a mini-trial, presided over by Dana Chavers, a magistrate who deals exclusively with emergency custody hearings. The idea is to quickly assess whether a home situation is so bad that the children need to be removed. Most of the time, the kids have already been taken by the county, and the hearing is the first chance for parents to refute the allegations behind the action. Generally, the cases tend to be more clear-cut than Rachel's. Most clients represented by public defenders in emergency custody hearings are either dependent on drugs or alcohol, or mentally ill.

Only two witnesses testify in Rachel's hearing -- the CFS social worker assigned to the case and Rachel herself. It's clear from the beginning that she and the social worker don't see eye to eye on the care of the children.

The social worker runs through the litany of problems Rachel has exposed her kids to over the past year: the volatile domestic situation, an alleged incident of sexual abuse of the older daughter by Rachel's stepfather, the lack of food in the house, the altercation with her husband, and the trouble Rachel seems to have coping with all the stress.

Rachel doesn't help herself much on the stand, where she comes off as defensive and edgy, quick to blame everyone else for her problems. For Amata, it doesn't matter. The point, as far as he's concerned, is that the kids aren't in any danger. And things are finally getting better, not worse. The mother and father have separated. Rachel will soon move into her own apartment. The older child is doing well in school. Both kids are healthy, and there's no reason to take them now.

In her closing argument, CFS attorney Cara Santosuosso argues that, despite her plans, Rachel does not currently have adequate housing and is either unable or unwilling to provide for her kids, who are in "desperate need of services."

Amata counters by arguing that a conditional improvement for the kids is not sufficient grounds to justify taking them from their mother. ""Could do better' is not a good enough reason," he says. "A lot of children could do better. The question here is whether the children are in immediate danger."

But when the time comes for his ruling, Chavers doesn't see it that way. "As I looked at the testimony in this case, I originally thought that services could be provided with the children in place," he says. "I don't think that anymore."

Amata is clearly upset. As he waits afterward in the anteroom to the magistrate's courtroom, the social worker approaches him. "I don't want to hear it," he barks at her, gesturing toward the kids. "Go ahead and take them. Snatch them up."

A week later, Amata has drafted several objections to Chavers's ruling and is still angry about the case. To him, it's an issue of the state overstepping its bounds, breaking up a family when it didn't need to. But even as it frustrates him, Amata admits this is the kind of case he feeds on.

"When you go up against the state, with all the power it can muster . . . and when you come away with getting the person out of that -- maybe it's not something people can identify with, but I feel kinda good," he says. "To me, that's exhilarating."

And it helps explain why Amata is still a public defender, trying to keep kids out of jail who often seem like they belong there. From where he sits, even the worst criminal deserves a competent defense.

"We're trained as lawyers to take this role," he says. "We don't care if they're guilty or not. We don't even ask that . . . I'm not the one to decide. That's the judge's job."


It's the judge's job, all right. But both prosecutors and defense lawyers in juvenile court know what a dicey proposition that can be. Unlike adult defendants, juveniles have no right to a jury trial. As a result, juvenile court judges wield an enormous amount of power, which can vary widely from courtroom to courtroom. Attorneys who appear before them learn quickly which judges will allow certain kinds of evidence and which respond favorably to a particular type of witness.

Autumn Basil knows. A four-year veteran of the public defender's juvenile division, she's prowling the basement hallway outside of Judge Robert Ferreri's courtroom. Ferreri hasn't been here for months, ever since he was suspended from the bench pending the outcome of a Supreme Court disciplinary hearing.

Basil doesn't think she should be here, either. "This wouldn't even be a trial in a lot of courtrooms," she says of her current case, an arson that police are trying to pin on her 15-year-old client.

This was supposed to be a busy day for Basil. She has two trials and a permanent custody hearing scheduled. But as with most days in juvenile court, nothing is happening on schedule. Ever since Ferreri was suspended, his cases have been heard by Joseph Nahra, a former appeals, probate, and common pleas judge. Nahra, however, is going on vacation next month. So his calendar is crammed, and now everything is running late.

Basil's cherub-faced client, Michael, is accused of torching a trophy and sporting goods shop. Despite his heavenly countenance, Michael has had a penchant for trouble of late. It all started in September, when he showed up at the store shortly after the fire, asking the owners about a safe they kept in the building. Almost immediately, he became a suspect. Soon after, a classmate told investigators that Michael had bragged about breaking into the shop and setting the blaze.

Basil, an intense woman who wears chalk-white K-Swiss tennis shoes in court every day, even with her nattiest business suits, thinks Michael is being set up by the classmate, Robert. She's hoping that the detective who arrested Michael will recall a conversation they had about the case. According to Basil, the detective told her that, even though Michael knew about the arson, he wasn't the one who set the blaze.

"I've got to get him to say he told me that," Basil says. "Otherwise, I'm dead."

Michael's trial finally starts around 2:30 p.m, delayed by an assault case that was also an unlikely candidate for trial. The case involved a girl who cut one of her housemates across the neck with a boxcutter, claiming it was self-defense. The judge didn't buy it, though he did reduce the charge.

In the arson case, the prosecutor calls five witnesses, but Robert quickly emerges as the key to the case. Three or four weeks after the fire, he says, he saw Michael riding his bike. That's when Michael told him that he and a couple of friends had broken into the trophy shop and tried to pry open the safe. When they couldn't, they torched the place.

Robert's story, however, doesn't add up -- a fact that Basil is quick to bring out during cross-examination. For one thing, the safe was, in fact, opened by whoever set the building on fire. For another, Robert told police that Michael knew the safe was in the store because he had gone there with his stepmother to buy a Browns jacket. But Michael was never in the store with his stepmother -- a point confirmed by investigators.

In painting Robert as the liar, Basil hammers away at the fact that he gave a statement to investigators only after he thought one of the detectives suspected him. "It just smelled," Basil says later. "I thought, "He's the firestarter.'"

Thanks to the testimony of an investigator, the prosecutor quickly establishes Michael as a troubled kid who has a problem telling the truth. But the case against him is weakening by the minute, particularly after the prosecutor is unable to produce any physical evidence tying him not only to the fire, but to the money and goods stolen from the safe that night. When the prosecution rests, Basil quickly moves for a Rule 29 motion, which basically means the state hasn't proven its case and the court should spare everyone's time by throwing the matter out then and there.

Denied the motion, Basil reluctantly puts her client on the stand. "I thought [Judge] Nahra wanted to hear what he had to say, which is dangerous, dangerous, dangerous," she says. "Kids on the stand will usually hang themselves."

His testimony isn't pretty. But Michael doesn't court the noose, either. After the prosecutor's cross-examination, Nahra asks Michael several questions, then finally lets him off the stand.

"This all boils down to whether the state has met the burden of proof," Nahra finally says. "There was plenty of suspicious behavior [by Michael]. But I cannot say it's been proven beyond a reasonable doubt."

Vindicated, Michael gets up and walks out the door. Basil enjoys a moment of vindication as well. She's saved a kid who, while clearly no angel, would probably have been nailed for something he didn't deserve. There's no guarantee that Michael won't be back before a judge soon. For now, though, Basil can savor one of the small victories that keeps juvenile public defenders going back to court every day.

Still, you don't survive here without being realistic. Asked about the case a week later, Basil doesn't hesitate.

"In some courtrooms," she admits, "I would have lost that case."

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