1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 1 2 3 SUPREME COURT 4 COMMISSION ON INDIGENT DEFENSE 5 6 7 8 9 10 11 12 FEBRUARY 12, 2002 13 9:30 a.m. 14 15 16 17 18 19 20 21 22 23 Long, Aldridge & Norman 24 303 Peachtree Street, Suite 5300 25 Atlanta, Georgia 30308 2 1 2 3 4 5 6 7 8 9 10 11 12 REPORTED BY: DIANE KING, CSR, B-1957 13 14 15 16 17 18 19 KING COURT REPORTING SERVICE 20 125 COLONADE AVENUE, SUITE 1-B 21 ATLANTA, GEORGIA 30331 22 (404) 344-7855 23 24 25 KING COURT REPORTING SERVICE 3 1 2 MEMBERS PRESENT: 3 MR. CHARLES R. MORGAN, Chairperson PROFESSOR PAUL KURTZ 4 JUDGE C. ANDREW FULLER MS. PHYLLIS HOLMEN 5 MR. JERRY GRIFFIN REPRESENTATIVE PAUL HOLMES 6 MS. FLORA DEVINE MR. ROBERT E. KELLER 7 MR. C. WILSON DUBOSE MR. CHARLES T. LESTER, JR. 8 MS. AASIA MUSTAKEEM MR. GEORGE O. LAWSON, JR. 9 JUDGE LAWTON STEPHENS MR. WILLIAM IDE 10 JUDGE A. GLENN TAYLOR 11 GUESTS PRESENT: MR. JAY B. MARTIN, AOC 12 MS. EMILY W. WARD, BELLSOUTH MS. KENDALL BUTTERWORTH, BELLSOUTH 13 MS. JUDITH P. KRODE, BELLSOUTH MR. MICHAEL B. SHAPIRO, GIDC 14 MS. SARAH SMITH, GIDC MS. MICHELE L. SUMMER, GIDC 15 MR. MICHAEL B. SHARP, GIDC MS. AIMEE MAXWELL, GIDC 16 MS. MARIANNE MCMILLAN, GIDC MS. DEBRA MUBLER, GIDC 17 MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN RIGHTS 18 MS. MARION CHARTOFF, SOUTHERN CENTER FOR HUMAN RIGHTS 19 MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN RIGHTS 20 MS. GINNY LOONEY MR. BILL RANKIN, ATLANTA JOURNAL-CONSTITUTION 21 MS. KIMBER SMITH, ATLANTA JOURNAL-CONSTITUTION MS. EMILY KOPP, GEORGIA PUBLIC RADIO 22 MR. R. SPANGENBERG, THE SPANGENBERG GROUP MS. JAMES DOWNING, THE SPANGENBERG GROUP 23 MS. JENNIFER RIGGS MS. CHONG KIM 24 REVEREND TIM REED MR. HULETT H. ASKEW 25 PRESENTATION: KING COURT REPORTING SERVICE 4 1 2 COUNCIL FOR INDIGENT CRIMINAL DEFENDANTS 3 MR. DREW POWELL, PUBLIC DEFENDER, NORTHERN JUDICIAL CIRCUIT 4 MR. MARK STRAUGHAN, CONTRACT DEFENDER IN 5 OF 6 5 COUNTIES OF THE OCONEE JUDICIAL CIRCUIT 6 MS. KAREN WILKES, FORMER CONTRACT DEFENDER, FLOYD COUNTY 7 MR. JERRY WORD, CONTRACT DEFENDER, CARROLL COUNTY 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 5 1 P R O C E E D I N G S 2 CHAIRMAN MORGAN: First of all, I would like 3 to welcome everybody for coming to this beautiful 4 location. We'd like to thank particularly Bill 5 Ide and Long, Aldridge for hosting us this 6 morning. We really appreciate it. 7 I think what we'll do is start off with our 8 usual tradition of going around the room and the 9 Commissioners identify themselves, and then our 10 guests so everybody can know who everybody else 11 is. 12 I'm Charles Morgan. I'm the chair of the 13 Commission, and next to me is Paul Kurtz. 14 MR. KURTZ: I'm Paul Kurtz. I'm the 15 reporter for the Commission. 16 MR. IDE: I'm Bill Ide. I guess today I'm 17 sort of the stage manager, and so you can get your 18 parking validated out front and there are 19 facilities down this hall, and I'm glad to have 20 you. 21 MR. GRIFFIN: If I came down the one-way 22 street, Bill, will you give me my $5.00 back? We 23 couldn't get in the lot anyway. 24 MR. IDE: I'm sorry about that. 25 MS. MUSTAKEEM: I'm Aasia Mustakeem and I'm KING COURT REPORTING SERVICE 6 1 a member of the Commission and an attorney at 2 Powell, Goldstein. 3 MS. HOLMEN: I'm Phyllis Holmen, a member of 4 the Commission and Executive Director of Georgia 5 Legal Services. 6 MS. DEVINE: I'm Flora Devine, also a member 7 of the Commission and representing the Georgia 8 Indigent Defense Council, and I'm also an attorney 9 with Cobb County. 10 MR. GRIFFIN: Jerry Griffin with the 11 Association of County Commissions. 12 MR. LAWSON: I'm George Lawson. I'm a 13 private practitioner. I am also a member of the 14 Commission. 15 JUDGE TAYLOR: I'm a member of the 16 Commission, I'm Glenn Taylor, former chief judge 17 from St. Simons Island, Georgia. 18 MR. DUBOSE: My name is Wilson DuBose. I'm 19 in private practice in Atlanta with Winkler, 20 Dubose and Davis. I am also a member of the 21 Commission. 22 CHAIRMAN MORGAN: Why don't we go over here. 23 MR. RUNDLETT: I am Alex Rundlett, Southern 24 Center for Human Rights. 25 MR. POWELL: I am Drew Powell. I'm the KING COURT REPORTING SERVICE 7 1 Public Defender of the Northern Judicial Circuit. 2 MR. BRIGHT: I am Steve Bright. I'm a 3 lawyer in Atlanta. 4 MR. STRAUGHAN: Mark Straughan, Public 5 Defender of the Oconee Circuit. 6 I'm Stan Raleigh with the Georgia House of 7 Representatives research office. 8 MR. SHAPIRO: I'm Mike Shapiro. I'm 9 director of the Georgia Indigent Defense Council. 10 MR. WORD: I'm Jerry Word from Carrollton. 11 I'm a lawyer and also a contract defender out in 12 Carroll County. 13 MS. SUMMER: I'm Michele Summer. I'm also 14 with the Georgia Indigent Defense Council. 15 MS. MAXWELL: I'm Aimee Maxwell. I'm the 16 professional education director of the Georgia 17 Indigent Defense Council. 18 MS. MCMILLAN: Marianne McMillan with the 19 Georgia Indigent Defense Council. 20 MS. MULDER: Debra Mulder, Georgia Indigent 21 Defense Council. 22 CHAIRMAN MORGAN: Maybe we'll start with 23 you. 24 MR. MARTIN: I'm Jay Martin, Administrative 25 Office of the Courts. KING COURT REPORTING SERVICE 8 1 MS. KOPP: I'm Emily Kopp. I'm with the 2 Georgia Public Radio. 3 MR. SPANGENBERG: I'm Bob Spangenberg with 4 The Spangenberg Group here for the week with my 5 colleagues, and when is it going to get warm? 6 MR. KURTZ: You brought that damn weather 7 with you. 8 CHAIRMAN MORGAN: He just wanted to know 9 when baseball season starts. 10 MR. SPANGENBERG: That's right. 11 MR. DOWNING: I'm James Downing, also with 12 The Spangenberg Group. 13 MS. RIGGS: I'm Jennifer Riggs with the 14 Private Defense Council here in Georgia. 15 MS. KIM: Chong Kim here representing the 16 Georgia Pacific Asian Community. 17 MS. BUTTERWORTH: I am Kendall Butterworth 18 with BellSouth Corporation. 19 MS. WARD: I'm Emily Ward with BellSouth 20 Corporation. 21 MS. KRODE: Judith Krode, BellSouth 22 Corporation. 23 MR. RANKIN: Bill Rankin, Atlanta 24 Journal-Constitution. 25 CHAIRMAN MORGAN: Okay. Well, thanks KING COURT REPORTING SERVICE 9 1 everybody for being here. I don't know if 2 everybody got a copy of the agenda. If you 3 didn't, there should be a copy available for this 4 morning. 5 Also, one of our 12 commissioners, Chuck 6 Clay, unfortunately will not be here this morning, 7 has arranged for a meeting with the state -- the 8 Senate Judiciary Committee. And I'm going to ask 9 our reporter to -- this is an open session this 10 afternoon. I'm going to ask our reporter to 11 briefly describe what that's all about. 12 MR. KURTZ: Well, as you may remember 13 several meetings ago the Commission, along with 14 Chuck as a member of the Commission, thought that 15 it would be -- suggested that it would be a good 16 idea at some point in the process to, before too 17 much longer, that we touch base with the 18 legislative leaders and inform them of our 19 existence, our make-up, and where we're -- what 20 our timetable is and what we're about. 21 And so that's what's going to happen today, 22 and my understanding is that members of both, the 23 Senate Judiciary Committee and both of the House 24 Judiciary Committees, each House has a regular 25 Judiciary Committee and a Special Judiciary KING COURT REPORTING SERVICE 10 1 Committee, and that all four of these committees 2 have been invited to be there this afternoon. 3 And I will be representing the Commission 4 along with, I guess, I think Kendall is going to 5 be there with me and Charles I know cannot make 6 it. And I'm going to be just giving them an 7 update on what we've done, what we're about, the 8 membership of the committee, kind of -- those of 9 you who may -- I know Phyllis was there at the 10 State Bar executive committee meeting in Athens 11 awhile ago, sometime this fall. 12 MS. HOLMEN: October. The football game. 13 MR. KURTZ: The football weekend for sure. 14 MS. HOLMEN: Right. That was the football 15 weekend. 16 MR. KURTZ: That's if anybody wants to come 17 to Athens where I am, but it will be similar to 18 that kind of presentation. 19 I'm going to talk about the makeup of the 20 Commission; what we have done in the way of 21 meetings; who we have heard from; the fact that we 22 have done some visitations on our own; the fact 23 that we've hired The Spangenberg Group; where we 24 think we're headed; the kinds of things we've 25 heard, and just to let them know and, of course, KING COURT REPORTING SERVICE 11 1 respond to any questions. 2 I don't intend to get into anything 3 substantive in the sense of telling them what it 4 is we're going to report or recommend because, of 5 course, I have no idea what it is we're going to 6 report or recommend, and so it's easy not knowing 7 anything. They cannot find anything that I don't 8 know. 9 And several of the Senators I regret, or am 10 proud to say, are former students of mine, and so 11 I can always threaten them with changing their 12 grades and I'll deal with it that way. 13 And so that's what's going to happen this 14 afternoon, and any or all of you are welcomed to 15 come at 3:30 in Room 107 of the Legislative Office 16 Building, is that the title of it? 17 MS. BUTTERWORTH: Yes, that's right. 18 MR. KURTZ: Is that the south employee 19 building? 20 MS. BUTTERWORTH: No. 21 MR. KURTZ: Jerry is going to hold my hand 22 and walk me down there. 23 CHAIRMAN MORGAN: Kendall, would you mention 24 the address again? 25 MS. BUTTERWORTH: Yes. It's Room 307. The KING COURT REPORTING SERVICE 12 1 Legislative Building. It's located at 18 Capitol 2 Square. 3 MR. DUBOSE: That's right next to the 4 Supreme Court building, I believe. 5 MR. KURTZ: I'll get there. I'll have a 6 couple hours between now and then to find my way 7 there. I'll get there, I promise. 8 CHAIRMAN MORGAN: Okay. That's a public 9 session? 10 MR. KURTZ: I think so. 11 CHAIRMAN MORGAN: Okay. I think we're ready 12 to begin our program. I would like to, first of 13 all, thank our speakers for being here. We really 14 appreciate it. I would also like to thank my 15 fellow commissioner, Wilson DuBose, for agreeing 16 to be our MC this morning and introduce our 17 speakers. 18 After the speakers make their remarks, we 19 will have a period of time for questioning and 20 comments with the members of the Commission, and 21 if there is time we will be able to have questions 22 from the floor, but that's going to be at the 23 discretion of the chair, depending on how much 24 time we have because I think we've got to be 25 finished today at noon. KING COURT REPORTING SERVICE 13 1 And so with that, I'll ask Wilson to kick us 2 off. 3 MR. DUBOSE: All right. Thank you, Charles. 4 We have four people who have agreed to speak to us 5 today and each have agreed to travel rather long 6 distances to be here, and for that we're very 7 appreciative. 8 Is Karen Wilkes here yet? 9 CHAIRMAN MORGAN: No. 10 MR. DUBOSE: Karen is traveling from Rome 11 today. She said she may be a little bit late 12 getting here today. The other three that we have 13 with us today are Drew Powell, and as I introduce 14 you just come up and have a seat up here. 15 MR. POWELL: Any particular place? 16 MR. DUBOSE: We have several chairs. 17 MR. IDE: By the mic, I think. 18 MR. DUBOSE: Mark Straughan and Jerry Word. 19 Drew Powell is a Public Defender in the 20 Mountain Judicial Circuit, and it covers three 21 counties. He's been doing that for several years. 22 Before that he was in private practice in Atlanta. 23 He lives in Clarkston, Georgia. We had hoped to 24 have him speak at an earlier meeting where we had 25 other Public Defenders. He agreed to come today, KING COURT REPORTING SERVICE 14 1 and we are most appreciative of him being here 2 today, and he is going to speak to us about his 3 perspective as a Public Defender in that part of 4 the state. 5 Mark Straughan is a contract defender. Mark 6 is from McRae, Georgia, and he has been a Public 7 Defender for, or a contract defender for -- how 8 long again, Mark? 9 MR. STRAUGHAN: Twenty years. 10 MR. DUBOSE: Twenty years. We've heard a 11 lot about the contract defender system, and we are 12 glad to have Mark with us today as well as Jerry 13 Word, who is a contract defender in Carrollton. 14 He's in private practice in Carrollton, and also 15 serves as a contract defender there. 16 Karen Wilkes was a former contract defender 17 and she now has a private practice in Rome, 18 Georgia, and she will be joining us, hopefully, 19 later in the morning. 20 And why don't we just get started? Each of 21 you have been invited to give your perspective as 22 a Public Defender in the case of Drew, or a 23 contract defender in the case of Mark and Jerry. 24 And Drew, since we had hoped to have you 25 earlier, we'll give you the floor first, and then KING COURT REPORTING SERVICE 15 1 we'll move on to Mark, and then to Jerry. 2 MR. POWELL: Okay. Thank you and I 3 appreciate your words. I am the Public Defender 4 of the Mountain Judicial Circuit. We cover a 5 three-county area that's Habersham, Stephens and 6 Rabun County. We are in the upper right-hand 7 corner of Georgia. We border South Carolina. Two 8 of my counties -- all three of my counties border 9 South Carolina, and Rabun County borders North 10 Carolina, and so we're right up there in the 11 corner. 12 I also, before I became a Public Defender 13 back in June of 2000, was there in private 14 practice in Atlanta. Have worked in the indigent 15 defense systems of DeKalb County, Fulton County, 16 Gwinnett County, as well as where I am now. And 17 so I've got experience in any of those counties 18 and so feel free to ask me any questions about any 19 of those and I can tell you about my experiences 20 in those. 21 I learned how to try cases by picking up 22 cases in Fulton County by going down there and 23 putting my card on the Judge's bench, like 24 everybody else, and being appointed the cases. 25 That's how I learned how to try a case. KING COURT REPORTING SERVICE 16 1 Other than having worked with Larry 2 Schneider at the DeKalb County Public Defender's 3 office when I was a third year law student doing 4 their preliminary hearing calendar three days a 5 week. 6 And my last experience before going as a 7 Public Defender up in the Mountain Judicial 8 Circuit was working on the appointed list in 9 Gwinnett County. And so I've got experience in 10 almost all different types except for contract 11 attorney. 12 My office, as I said, covers a three-county 13 area. Last year, and I've written you all a 14 letter and I've given you all the numbers that we 15 had from last year. We run our numbers -- I've 16 also included in my materials to each of you a 17 copy of our court schedule for the year 2002. 18 Last year our office opened 632 new cases. 19 Our office consists of myself, an assistant Public 20 Defender, one investigator, and one office 21 manager/secretary. The District Attorney's office 22 in our area has five attorneys, three secretaries, 23 one investigator, and one victim witness 24 coordinator is what they call it. 25 We also, unfortunately, have to represent KING COURT REPORTING SERVICE 17 1 folks whose children have been taken away by the 2 Department of Family and Children Services. We 3 opened 42 of those cases last year. Those cases 4 are extremely, extremely time consuming. We 5 represent folks in all three counties. We 6 probably represent about 90 percent of the poor 7 people whose children have been taken away from 8 them. 9 MR. KURTZ: Is there a separate contract 10 with DFACS? 11 MR. POWELL: No, sir. The judges appoint us 12 to those cases, the Public Defender's office. 13 It's always been that way in the circuit. I don't 14 know how that started. I would dearly love not to 15 do it because I'm not a civil attorney and do not 16 feel that I am qualified to handle those cases 17 because I have not done them before. 18 MR. KURTZ: How old is the Public Defender's 19 office? 20 MR. POWELL: The Public Defender's office 21 was established, I believe, in 1989. 22 MR. KURTZ: And you are the fourth? Fifth? 23 MR. POWELL: I am the fourth Public Defender 24 that they have had. The last Public Defender was 25 Dwayne Madden, who was the assistant Public KING COURT REPORTING SERVICE 18 1 Defender in DeKalb County. 2 MR. HOLMES: What percent of your Public 3 Defenders qualify for indigent defense? Do you 4 find yourself representing 90 percent? 80 5 percent? 6 MR. POWELL: We represent probably anywhere 7 between 50 and 70 percent of all of the the 8 defendants in the Superior Courts. Of course, not 9 all of our cases actually make it to being 10 indicted. We close a large number of cases before 11 they even make it that far. 12 Last year we closed 391 felony cases. I 13 primarily handle felonies by myself. My assistant 14 runs around and does the DFACS cases, which take 15 up the vast majority of her time. 16 We also represent folks in the State Court 17 of Habersham County. We do not represent people 18 in the State Court of Stephens County. And in 19 Habersham County, unfortunately, we're not allowed 20 to -- we don't have the manpower to do it the way 21 I would like to do it, which is to be in there for 22 every arraignment, accept anybody who qualifies 23 for our office and represent them. 24 As it stands right now, we will only go over 25 to the State Court if they seek us out and come to KING COURT REPORTING SERVICE 19 1 our office because we simply just don't have the 2 manpower to do it any other way. 3 MR. HOLMES: Do you have an interpreter? 4 How do you handle Hispanics? 5 MR. POWELL: When we have Hispanics, we have 6 to hire interpreters. We have to go out and find 7 interpreters. In court, we have to get an order 8 from the Court agreeing to pay for the 9 interpreters. 10 The judges make us responsible for having an 11 attorney -- an interpreter in court. It's up to 12 us, and if we don't get it done our clients pay 13 for it. 14 MS. HOLMEN: But the Court ultimately pays? 15 MR. POWELL: The Court ultimately pays for 16 the interpreters, but they want somebody local who 17 is not going to cost them a lot of money and, 18 unfortunately, nobody local has been approved by 19 the Court, certified by the Supreme Court. 20 The closest we can get to that is 21 Gainesville. We have several in Gainesville which 22 we prefer to use; however, our judges get on us 23 about the cost for getting somebody out of 24 Gainesville, and so we tend to use -- we have a 25 small Bible college, Taccoa Falls College is in KING COURT REPORTING SERVICE 20 1 one of our counties, and we have a lot of children 2 of missionaries there who grew up in South America 3 and Mexico and so they speak fluent Spanish and 4 they're good at that, but I don't think they 5 understand the rules and they don't understand 6 that they have to interpret everything that's said 7 and not interpret the interpretation, but to say 8 exactly what is said. And that's why we prefer to 9 use certified interpreters, but it's difficult. 10 We also have a fairly largely Laotian 11 community in our circuit, and it's difficult to 12 find a Laotian interpreter. And increasingly we 13 have a large Guatemalan community who do not speak 14 Spanish, particularly the women. They only speak 15 indian dialects. Dialects of Miam, such as 16 Candalall, which are languages that I never heard 17 of until recently. 18 And, unfortunately, most of the women do not 19 speak even Spanish. Their husbands or boyfriends 20 will speak Spanish, but a lot of the times they're 21 being charged with beating on their boyfriend or 22 hitting their boyfriend, or stabbing their 23 boyfriend or husband. I mean, a domestic 24 situation, and you can't have your boyfriend or 25 husband interpret for you because they're the KING COURT REPORTING SERVICE 21 1 victim, and so it makes it difficult. 2 MS. DEVINE: Do you find that the domestic 3 cases are the majority of the cases for the 4 Guatemalan, Laotian, and perhaps even the 5 Hispanics? 6 MR. POWELL: We have had, for most of our 7 Guatemalans, we have had mostly DFACS cases than 8 anything else. There is a cultural problem that 9 we have run into, and the difference between the 10 Latin-American cultures and our cultures about 11 what is acceptable in child rearing, and it's 12 fairly prevalent, and our DFACS has no compunction 13 in going out and snatching kids for any reason. 14 And what they don't understand is that a lot 15 of times they take the kids because they feel that 16 the people are living in substandard housing when 17 it is probably the best place that they've ever 18 lived in, you know. Maybe it's a trailer with no 19 heat, but it's a lot better than that one room 20 shack that they lived in -- 21 MS. DEVINE: With no floor. 22 MR. POWELL: -- with no floor down in 23 Guatemala. And so that's something that we run 24 into a lot. 25 As I said, we opened 632 cases last year. KING COURT REPORTING SERVICE 22 1 We closed 568 capital cases last year. We had 289 2 cases open on January 1 of this year. And so 3 that's 857 cases that we worked on last year. 4 When you divide that by our budget, which 5 fiscal year 2001-2002, June to July, was $191,567. 6 That's 230 -- and $223.64 per case we worked on. 7 That's what it cost our commissions. 8 MR. LAWSON: How many jury trials did you 9 do? 10 MR. POWELL: We did 11 trials last year, 11 11 criminal trials. There were also a few 12 termination of civil rights trials. We won six of 13 our trials, lost four, and had one tie. The tie 14 was one where a person was charged with aggravated 15 assault on a police officer and possession of a 16 firearm. 17 I got him acquitted on aggravated assault 18 and he was convicted on the possession of a 19 firearm. I consider that a tie. 20 He's gone to prison for five years, but he 21 was very mentally ill. It was prevalent during 22 the trial. In fact, during the trial -- the crime 23 had taken place in December, and during the trial 24 he was extremely psychotic. He stood up and 25 started shouting where was Santa Claus during all KING COURT REPORTING SERVICE 23 1 of that. 2 MR. TAYLOR: So your average is one jury 3 trial a month, basically? 4 MR. POWELL: That is our average; however, 5 it usually does not work out that way. We have a 6 regularly scheduled trial 24 weeks of the year. 7 They usually add two to four more weeks a year, 8 and so technically I'm on trial every other week; 9 however, I wish it was scheduled that way. It is 10 not. 11 It is scheduled starting in -- starting in 12 April of this year. I mean, in April of this year 13 I will be in trial for seven straight weeks and 14 then I'll have a couple of weeks off and then a 15 few more weeks. The next term I will have ten 16 straight weeks of trial. It just works that way. 17 This last term of court in November I tried, 18 in the space of nine days, I tried a murder case, 19 a drug case, and the aggravated assault case, and 20 that was all within a nine day period back to back 21 to back. 22 MR. KURTZ: Who hired you? 23 MR. POWELL: I was hired by the tripartite 24 committee. 25 MR. KURTZ: And that was the judge? KING COURT REPORTING SERVICE 24 1 MR. POWELL: It is two local attorneys and 2 one member of the county commission is our 3 tripartite committee. 4 MR. KURTZ: And is it an open-ended 5 appointment or was it a term of years? 6 MR. POWELL: According to the statute, 7 Public Defenders are appointed two years. 8 Technically, my appointment runs out in June. I 9 assume they're going to reappoint me, assuming 10 that I still want it at that point in time. 11 It's not unusual for us to work 80 hours a 12 week. It's a question of how much longer I can 13 keep up without my health dying on me, basically. 14 Our office is extremely overwhelmed. 15 MS. DEVINE: And your office staff is, 16 again, you said? 17 MR. POWELL: I have myself and one assistant 18 Public Defender, an investigator, and an office 19 manager/secretary. And so there is four of us, 20 and we go up against five attorneys in the 21 District Attorney's office, two special assistant 22 Attorney Generals for the DFACS cases, and a 23 solicitor for the State Court of Habersham County. 24 Yes, sir. 25 CHAIRMAN MORGAN: Drew, I see that you feel KING COURT REPORTING SERVICE 25 1 that the resources of your office are insufficient 2 to meet the demands of the cases. 3 MR. POWELL: Yes, sir. I believe so. I 4 believe we need about two more attorneys. If we 5 had two more attorneys we can do fine. 6 CHAIRMAN MORGAN: Let me ask you this: 7 What, if anything, have you done to try to get 8 that to happen? 9 MR. POWELL: Last year I went to the county 10 commissions during the budget process. I told 11 them we needed more attorneys. I asked for one 12 attorney hoping that that would not be too much. 13 At first our commissions sought to cut my 14 budget, and I told them there was no way they 15 could cut our budget. We just couldn't survive on 16 it. They ended up increasing our budget by 17 $6,000. 18 It's difficult to find people to work for 19 our office a lot. Part of it is the pay 20 disparity. I, myself, make $14,000 a year less 21 than the lowest paid Assistant District Attorney 22 in my circuit, and about $36,000 less than the 23 D.A. 24 MR. HOLMES: Do you handle any outside 25 cases? KING COURT REPORTING SERVICE 26 1 MR. POWELL: No, sir. I'm only allowed to 2 handle what I have, and I wouldn't have time. 3 MR. HOLMES: Do y'all have any kind of an 4 association or anything like the DAs or the judges 5 who lobby for your salaries and your retirements? 6 MR. POWELL: Well, unfortunately, it's up to 7 each individual county commission. I mean, it's 8 not something where we can -- it's not like we're 9 the DAs where they can go to the legislature and 10 lobby for their salaries. 11 We have to do it for people like me where 12 I've got three county commissioners, and I imagine 13 that Mark has, what, five that you've got to go 14 talk to? And you've got one county commissioner 15 or two? 16 MR. STRAUGHAN: No, we've got seven. 17 MR. POWELL: Seven county commissioners. 18 You've got to go and talk to each of these 19 commissioners, and it's up to them when they're 20 going to do it. 21 I've got one county who claims that it's 22 broke; that it's days away from bankruptcy, and 23 that's Stephens County. And Habersham County is 24 telling us that they don't expect their revenues 25 to be as good as they were last year. KING COURT REPORTING SERVICE 27 1 Rabun County is doing it just because their 2 land is selling like crazy up there because it's, 3 you know, vacation destination. 4 MR. KURTZ: In the allocation among the 5 three counties, is it simply pro rata or -- 6 MR. POWELL: It's proportional to 7 population. 8 MR. KURTZ: Population, not to caseload or 9 anything. 10 MR. POWELL: Not to caseload. Habersham 11 County pays 44 percent of our budget. 12 MR. KURTZ: Because it has 44 percent of the 13 population? 14 MR. POWELL: Right. Stephens County, I 15 believe, is 30, and I believe the remainder is 16 picked up by Rabun County. 17 MR. KURTZ: All the funding is from the 18 county? 19 MR. POWELL: All the funding is from the 20 county. We do get some money from the GIDC. 21 MR. STRAUGHAN: I misspoke. It's one county 22 commission but seven commissioners. 23 MR. POWELL: Okay. 24 MR. KURTZ: And what proportion of your 25 budget? This 191 is the budget for the office KING COURT REPORTING SERVICE 28 1 that includes the GIDC money? 2 MR. POWELL: The GIDC sends us checks to 3 give to our county commissioners, and that's the 4 legislature's proportion that they pay plus from 5 the sheriffs' and clerks' fund, and I think that 6 works out. And, Mike, you would know better than 7 I do. It's about 22 a year, or something like 8 that? 9 MR. SHAPIRO: Yes. 10 MR. POWELL: About 22 a year. 11 MR. KURTZ: 22 of the 191. 12 MR. POWELL: Of the 191. And, generally, 13 they take that money and it goes into their 14 general found and we never see it. 15 MR. KURTZ: And so that's why it's part of 16 the 191? 17 MR. POWELL: Right. It's included in that 18 191. 19 MR. HOLMES: How long have y'all had the 20 Public Defender system? 21 MR. POWELL: They have had it running there 22 since 1989 and our judges -- I mean, I will say 23 that my judges prefer the Public Defender system 24 and wants the Public Defender system to stay up 25 there. They think it's the best use of resources. KING COURT REPORTING SERVICE 29 1 The problem is I just don't think the county 2 commissions understand that. They don't 3 understand the need for it. It's not tangible. 4 They can't touch it, they can't feel it, they 5 can't drive over it like a road, you know? They 6 really just don't understand, and they don't 7 understand the constitutional imparity. 8 MR. KURTZ: Do the judges help you? Have 9 the judges been of any assistance to you in 10 lobbying the commissioners? 11 MR. POWELL: The judges have helped us to 12 some point. I wish that they would get more 13 involved in lobbying the commissioners. I wish my 14 tripartite committee would get more involved in 15 lobbying the commissioners. 16 MR. KURTZ: How many Supreme Court judges? 17 MR. POWELL: We have two Superior Court 18 judges, and they also act as the juvenile court 19 judges. 20 MR. GRIFFIN: What is the constitutional 21 imperative of the county commissioners? 22 MR. POWELL: No, the constitutional 23 imperative is that the indigent defense must be 24 added, must be funded. 25 MR. GRIFFIN: No. The county does not have KING COURT REPORTING SERVICE 30 1 a responsibility unless they sign a contract. I 2 mean, the constitutional imperative is more people 3 is served under the constitution and somebody has 4 got to pay for it and right now; unfortunately, 5 the state is leaving it up to the counties. I 6 wish it were otherwise. 7 MS. DEVINE: Drew, would you talk a little 8 bit more about the attorney-client relationship, 9 and have you had any clients to complain about 10 your availability? 11 MR. POWELL: Oh, clients complain about my 12 availability all the time, unfortunately. 13 MS. DEVINE: To the judges? 14 MR. POWELL: To the judges. Bar complaints. 15 I get, probably, one bar complaint a month where 16 they send the guy back and send me a copy of the 17 guy's letter saying please go and talk to him in 18 the jail. 19 The problem being that I've got three jails 20 with lots of folks. I'm running from courthouse 21 to courthouse as it is trying to get all of my 22 work done. I'm constantly in court, or in trial, 23 or preparing for court or trial and I really don't 24 have time to go to the jail and see these folks. 25 My investigator has become, instead of KING COURT REPORTING SERVICE 31 1 investigating the cases for me, has become my jail 2 liaison. He goes to the jail everyday and talks 3 to inmates and try to calm them down, but even 4 still we don't get to see them. And I'm lucky if 5 I see some of my clients before they even have a 6 preliminary hearing. I meet a significant portion 7 of them at the preliminary hearing. 8 MR. KURTZ: Ballpark estimate. You've got 9 three jails. How many clients do you have in each 10 of the jails? 11 MR. POWELL: Habersham County, I have about 12 40 right now. In Stephens County, I have about 13 22, off the top of my head. In Rabun County I 14 only have about six, but Rabun county doesn't like 15 to keep folks in jail. They have a sheriff whose 16 main goal is to get the folks out of jail unless 17 they've done something really, really bad, then 18 they need to stay in jail, but if they've done 19 something that's not too bad he will go to the 20 judges and say you need to give this gentleman a 21 low bond so he can get out of jail, and I'm very 22 thankful for that. If I didn't have that it would 23 be a mess. 24 MS. HOLMEN: Are you able to do bond 25 hearings to get people out of jail? KING COURT REPORTING SERVICE 32 1 MR. POWELL: We file bond hearings. It 2 takes the judges about -- they usually are 3 scheduled anywhere from four to six weeks after we 4 file for them. And so by the time we get there, 5 if they had money to get out they no longer have 6 money to get out. 7 MS. MUSTAKEEM: You indicated in Habersham 8 County you are not able to go to the jail to see 9 who needs assistance; that you wait for these 10 people to seek you out? 11 MR. POWELL: Well, that's in State Court. 12 In the Superior Court my investigator goes to the 13 jail at Habersham County everyday to accept 14 applications and do intake interviews. The 15 problem is my investigator shouldn't be doing 16 intake interviews. An attorney should be doing 17 intake interviews because my investigator doesn't 18 understand or know the issues necessarily. 19 Issues like search issues that come up, 20 search and seizure issues. He will come back and 21 tell me and I won't lie to you. I mean, there are 22 cases where I feel like I should be filing a 23 motion to suppress. I don't have the time, 24 personally, to offer an alternative and say what 25 do you want to do? And most of the time they get KING COURT REPORTING SERVICE 33 1 a plea. 2 We've been fairly successful when we do 3 that. I'd like to think that that's because I'm a 4 good lawyer. I don't know if it's that or 5 anything else, but we've been fairly successful 6 when we do go to trial. 7 MR. KURTZ: How much is your investigator -- 8 what's the salary? 9 MR. POWELL: My investigator makes about 10 $28,500. 11 MR. KURTZ: And your assistant? 12 MR. POWELL: My assistant Public Defender 13 makes $39,500. She got a $200 raise. 14 MR. KURTZ: That's out of the $6,000 per 15 month? 16 MR. POWELL: Yeah. 17 MR. KURTZ: And you? 18 MR. POWELL: I make $64,255. 19 MR. KURTZ: And the DA makes $100,000? 20 MR. POWELL: The DA makes about $98,000. 21 MR. KURTZ: How long has the DA been a DA? 22 MR. POWELL: He's been the DA for quite 23 sometime, but he mainly only draws his state 24 salary. He has a small stipend. All of our ADAs 25 are state funded positions. All of my -- my KING COURT REPORTING SERVICE 34 1 least -- my DA -- my ADA with the least experience 2 has 16 years. 3 MR. KURTZ: That's the rookie. 4 MR. POWELL: That's the rookie. And so 5 we're at a distinct disadvantage. They're all 6 extremely knowledgeable, and they know their 7 stuff, they've been around forever. Not 8 necessarily in our circuit, but they've got an 9 incredible amount of experience. 10 MR. KURTZ: How long out of law school are 11 you? 12 MR. POWELL: I've been out of law school 13 since 1991. 14 MR. KURTZ: And your assistant? 15 MR. POWELL: My assistant has been out for 16 four or five years, and she's been with us since 17 February -- well, this month will be her one-year 18 anniversary. 19 MR. KURTZ: One-year anniversay? 20 MR. POWELL: She did real estate. 21 MR. KURTZ: Do you expect that she will stay 22 another year and then go on? 23 MR. POWELL: If the stress doesn't drive her 24 out of the job, I'm hoping that she'll stay for 25 another year. KING COURT REPORTING SERVICE 35 1 MR. HOLMES: How do you all handle the 2 multiple defendants? 3 MR. POWELL: If there is a conflict we will 4 ask the Court to appoint someone. 5 MR. HOLMES: Does that usually get done? 6 MR. POWELL: It does. Of course, the Courts 7 do complain about the number of conflicts, but we 8 can't help it that we live in a small community 9 and sometimes victim on Case 1 wants us to 10 represent them on Case 2 and we can't do that, of 11 course. 12 Or our favorite cases are the ones where we 13 have co-defendants and don't know we have 14 co-defendants until we get to the preliminary 15 hearing and then we discover we have 16 co-defendants. 17 MR. HOLMES: How does your office related to 18 the DAs? Good? 19 MR. POWELL: It's funny because it's 20 different from county to county. Our District 21 Attorney has pretty much assigned different 22 assistants to each of the counties and it varies. 23 In one of my counties it's difficult to get 24 anything done mainly because we are not on the 25 same page. They don't give me discovery very KING COURT REPORTING SERVICE 36 1 easy. I have to fight them for everything. 2 My two other counties I get along fine with 3 the Assistant District Attorneys. In fact, we go 4 out and have dinner together every once in a 5 while. They're good folks. We get along fine. 6 We may not always agree on the case, but it's very 7 collegial and we know that after it's over, we 8 might fight like the dickens in court, but after 9 court we know we're going to have a beer and relax 10 and get it done. 11 And I don't have any problems getting 12 anything done in those two counties. And so I 13 don't know if it's a personality thing or what. 14 CHAIRMAN MORGAN: Drew, one thing you said a 15 minute ago really got my attention. You talked 16 about a Motion to Suppress and so forth, and I 17 wanted to focus again a little bit more on what 18 you're seeing is a gap between your ability to 19 handle all of these cases and just the resources 20 that are made available, and you referenced the 21 constitutional guarantees. 22 I mean, do you feel that this gap is causing 23 a lack of appropriate, not really from fault of 24 your own best efforts, but is that causing a lack 25 of constitutional protection for the Defendants? KING COURT REPORTING SERVICE 37 1 MR. POWELL: I think that our circuit could 2 be ripe for a lawsuit. I'm not going to lie. I 3 mean, I think that if some enterprising Defendant 4 came along and tried to sue us for ineffective 5 assistance of counsel, they would stand a good -- 6 institutionalized ineffective assistance of 7 counsel, they would have a pretty decent lawsuit. 8 And it's not through any fault of mine, I would 9 say. I think I'm trying as hard as I can. 10 My own personal physician wrote me a 11 prescription and ordered me not to work on Sundays 12 anymore because I was working seven days a week 13 trying to get the job done and my blood pressure 14 went through the roof. And so he told me that I 15 couldn't do that. 16 And it's an overwhelming job. I don't get 17 to file as many motions as I feel like I should 18 file. I certainly don't get to get creative in 19 some of my defenses. And there are folks who 20 understand -- some of my clients understand that I 21 don't have time to devote to their case, and so it 22 effects their willingness to go to trial for 23 something that they believe in. 24 I can't tell you the number of times when my 25 clients tell me I didn't really do this, but I'm KING COURT REPORTING SERVICE 38 1 going to plead guilty because I know what I've got 2 here. I don't know that you're going to have time 3 to work on my case and get it done right, and so 4 I'm going to take this plea bargain. I mean, I 5 have had them say that to me and it hurts, you 6 know. 7 MR. LAWSON: And your response is. 8 MR. POWELL: And my response is, if you want 9 to go to trial I will go to trial with you and I 10 will try my hardest to get you acquitted if that's 11 what you want. But they've seen the reality of 12 the situation. I mean, they know because I 13 haven't seen them. They've been sitting in jail 14 for six months and up where we are the fact that 15 we don't have court but -- yeah, we have two terms 16 of court a year. 17 Terms of court are six months long where I 18 am, and if you don't get indicted that term you're 19 going to sit eight to 10, 12 -- I've got people 20 sitting in jail for over a year that haven't been 21 indicted. 22 MS. KIM: Do you think the DAs know that 23 about your clients and so they will treat clients 24 who have private attorneys better, give them 25 better deals? KING COURT REPORTING SERVICE 39 1 MR. POWELL: One of my Assistant District 2 Attorneys gives everybody the same deals, okay? I 3 have had one of them on the sly tell me that he 4 gives people a little bit better deal for having a 5 private because he appreciates the fact that they 6 went out and hired someone. 7 My other Assistant District Attorney and I 8 keep fighting about discoveries, and so sometimes 9 I don't get the best deal because he's mad at me, 10 which happens. I mean, personality conflicts 11 always factor in on what kind of deals you can get 12 our client; however, I have yet to lose to him 13 when we try the case. 14 MS. DEVINE: Is that different where you are 15 now than when you were working out of Fulton 16 County? 17 MR. POWELL: It's a different mind-set, and 18 it's an interesting -- there are interesting 19 differences. 20 I don't have the time to investigate the 21 cases that I wish that I had to track down the 22 witnesses for my clients like I used to. I also, 23 however, don't do as good of a discovery as I used 24 to, too. 25 You know, I will say as much as I used to KING COURT REPORTING SERVICE 40 1 dislike dealing with police officers in the Metro 2 area, when they wrote a report they wrote a 3 report, you know? They actually put things in the 4 report that mattered. They didn't conveniently 5 remember things at the last minute when they're on 6 the stand that were never in their report, which 7 is partially why I keep winning trials. 8 They don't go out and do a drug case and 9 identify the guy and then put out a warrant for 10 him six months later and go arrest him, and then 11 your report says we did an undercover operation 12 and this guy sold dope. That's the whole purpose 13 of the discovery. 14 And so I -- you know, for me, you know, 15 there were a lot of things in the Metro area where 16 I think police officers were a little bit more 17 professional about what they did, which makes it a 18 little bit -- amazing as it may seem to everybody 19 who works in the Metro area, I didn't know how 20 good I had it until I left. 21 And so, I mean, I was used to having a lot 22 more discovery than I do now. We have to go out 23 and find things. 24 MR. KURTZ: You said you had 11 trials last 25 year. KING COURT REPORTING SERVICE 41 1 MR. POWELL: Right. 2 MR. KURTZ: Are those like one-day trials? 3 MR. POWELL: They varied from case to case. 4 We had a murder trial that went three days. 5 MR. KURTZ: Is that the longest one? 6 MR. POWELL: That's the longest trial I had 7 last year, yeah. Some of them only last an 8 afternoon. 9 MR. DUBOSE: Do you try all of them or does 10 your assistant try some of them? 11 MR. POWELL: I tried 10 of the 11 last year. 12 My assistant tried one of those trials, but she 13 does most of the DFACS work and so she's 14 constantly in court doing deprivation hearings, 15 termination hearings, and mainly having to deal 16 with the DFACS folks. 17 We have a significant number of them that 18 have extremely low IQs, and it makes it very 19 difficult to deal with them because on the one 20 hand you're having to balance -- you may think 21 that maybe this person doesn't need to be raising 22 their child, but your job is to try to get that 23 child back with their parents, and so it's 24 difficult to deal with them. 25 We also have a significant number of KING COURT REPORTING SERVICE 42 1 mentally ill folks up there, and a mental health 2 system that's not very good. I mean, I thought 3 the mental health system was bad in the Metro area 4 until I went to rural Georgia where it's virtually 5 non-existent. 6 They do not have a doctor on staff. They 7 have a doctor who travels the circuit who shows up 8 one day a week. You know, we have mental health 9 professionals up there who swear out warrants 10 against their clients because when they're 11 psychotic they threaten them. 12 That's the type folks that I'm dealing with, 13 and the mental health system has literally fallen 14 apart up there. Even the sheriffs are complaining 15 about the mental health system. And then we send 16 them down, we have raving psychotics that we send 17 down to Georgia Regional because Georgia Regional 18 is full of them. 19 Magically, most of our clients are deemed to 20 be competent to stand trial. Ones where they 21 literally cannot hold a conversation with you 22 because they're so psychotic that they need to be 23 on medication, or they're on the wrong medication 24 which, you know, being in my job I have had to 25 learn several things. KING COURT REPORTING SERVICE 43 1 I have had to learn an incredible amount of 2 psychology in the last two years, more than I ever 3 thought that I would have to know. I have had to 4 learn a lot about medical -- just medical problems 5 of folks because the vast majority of my folks are 6 disabled that I represent. 7 I have had to learn a lot about child sexual 8 abuse. A lot more than I ever did before, and 9 interviewing techniques. And, you know, all of 10 this will help me when I leave my job because I'll 11 know it, but it's extremely stressful when you 12 leave the job and then you've got to go and read a 13 book so you know what you're doing when you have 14 to represent this person. 15 MS. DEVINE: And so do you have 16 recommendations for us? 17 MR. POWELL: I don't see that there is any 18 way that the system can continue for us without 19 state funding. I mean, I just don't see it. I 20 mean, it's not fair to the counties. The counties 21 don't understand it. It's never going to be 22 politically popular for county commissioners to 23 say to people who are paying property taxes we 24 need to take your property tax money and pay for 25 this person who burglarized your home to have KING COURT REPORTING SERVICE 44 1 representation. 2 It's just not -- it's not popular, and up 3 where I am it's very conservative and people don't 4 understand it, and they believe people should be 5 buried under the jail. And I get that. I get 6 that a lot. I mean, it's very difficult to deal 7 with where I am. 8 We need funding and we need adequate 9 resources. I'm not saying that I should have the 10 same amount as the District Attorney's office. I 11 don't handle as many cases, but I do need to have 12 a sufficient number of attorneys and staff in my 13 office to get the job done. 14 If you've ever worked in criminal defense, 15 it's my opinion that it's much more difficult and 16 time consuming to represent a Defendant than it is 17 to prosecute a case in large part because the 18 prosecutors have so many more resources. I mean, 19 they've got the whole resources of every law 20 enforcement agency in the state, especially in 21 their area. 22 Also, when you're a defense attorney you've 23 got -- sometimes it takes a lot of work to figure 24 out a defense because a lot of times your clients 25 don't have one until you can find one. KING COURT REPORTING SERVICE 45 1 And there is also a lot of time that needs 2 to go into the attorney-client relationship. I 3 think that's the main thing that I miss in this 4 job is I don't have time to develop a relationship 5 with my clients. 6 I tried a murder case last year, which we 7 won by the way, in which I only met with my murder 8 case client for a total of five hours before we 9 went to trial. And that's unconscionable. She 10 wouldn't talk to me because she didn't trust me 11 because we didn't have a relationship. 12 And, you know, when I was in private 13 practice indigent defense made up a large portion 14 of my practice. 15 JUDGE FULLER: Can I ask why you only had 16 five hours? 17 MR. POWELL: Well, because I just didn't 18 have time because I had, you know, 70 other cases 19 I had to prepare for trial. And when you've got 20 70 cases to prepare for trial you can't lay on one 21 when you've got -- you know, I was doing pleas up 22 until the time we did voir dire and when we took a 23 break off of voir dire, I was doing pleas between 24 that time and talking to the DAs about, okay, I 25 know we're in the middle of this voir dire, but KING COURT REPORTING SERVICE 46 1 let me talk to you about this case and see can we 2 work it out? Because it's just -- there is just 3 not enough time or hours in the day. 4 MR. DUBOSE: Drew, let me interrupt you. We 5 appreciate all of the information that you're 6 giving us; unfortunately, we have limited time 7 today for everybody, and I think in the interest 8 of time we probably need to move to other speakers 9 and, hopefully, we will have some time at the end 10 of the session for some more questions. 11 MR. TAYLOR: Can I ask just one question 12 here? 13 MR. DUBOSE: Sure. 14 MR. TAYLOR: In listening to you, Drew, in 15 summation, your problems as a Public Defender are 16 Judges, Assistants DAs, DAs, policemen, mental 17 health system, Georgia Regional Hospital, County 18 Commissioners, Tripartite Committee. 19 MR. POWELL: I don't consider that all a 20 problem. 21 MR. TAYLOR: They will not solve all of the 22 problems? 23 MR. POWELL: They will not solve all of the 24 problems. There has always been personality 25 conflicts between people working together, but it KING COURT REPORTING SERVICE 47 1 won't solve all of the problems, but it will make 2 it easier for us to do the job and take care of 3 the place that we need to take care of. 4 I mean, right now I've worked on 300 5 felonies last year, and closed 390 of them and I 6 just, you know, I don't know that I always have 7 the time to give to my clients. I like my judges, 8 and I don't have a problem with my judges, and my 9 judges try to give me the time that I need; 10 however, they are also very proud of the fact that 11 they don't have a case backlog, and they want 12 every case that's indicted resolved the same time 13 that it's indicted. 14 And that's anything from a, you know, a 15 murder, or a shaking baby syndrome case to, you 16 know, the jaywalker. And it's, you know, it's a 17 lot of pressure. I'm not saying that it's all bad 18 pressure. We all have pressures in our jobs, but 19 it's an overwhelming pressure. 20 MR. DUBOSE: Thank you, Drew. 21 MS. HOLMEN: Drew, I just want to thank you 22 for what you do and for your dedication and the 23 sort of principle in a very difficult situation, 24 and also thank you for coming here to talk to us 25 about the problems. It's a very courageous thing KING COURT REPORTING SERVICE 48 1 to do. 2 MR. KURTZ: I suspect spending the day down 3 here with us only exacerbated your problems. 4 MR. POWELL: Well, it does, but you get away 5 for important things like training with the GIDC. 6 MR. DUBOSE: Thank you very much. 7 MR. POWELL: Shall we switch? 8 MR. DUBOSE: That would help. I also want 9 to welcome Karen Wilkes, who has joined us. Karen 10 drove in from Rome today. Karen, we thank you. 11 We appreciate your making an effort to be here 12 with us today. 13 MS. WILKES: Thank you. 14 MR. DUBOSE: We'll hear now from Mark 15 Straughan. We have Judge Grady, and then to Judge 16 Stephens, and Judge Dobb, and Paul, and Charlie 17 Lester. 18 CHAIRMAN MORGAN: We'll be hearing from some 19 of the reporter's students at our next session. 20 MR. STRAUGHAN: I'm Mark Straughan. I've 21 been Public Defender for 20 years in the Oconee 22 Circuit. I started when I first came out of law 23 school. My situation is a little bit different 24 than the last one and probably some of the others. 25 My father was already in practice. We have KING COURT REPORTING SERVICE 49 1 been after, I think, two previous attempts. They 2 came to my father and asked him to take it for a 3 while until they found somebody that wanted to do 4 the Public Defender work. He was in private 5 practice, and about four or five years later he 6 was still doing it when I came in, and he is still 7 doing it today. 8 I added my wife to the practice. A small 9 town practice. It's not a big firm. It's all 10 family. We all kind of shared the duties. We had 11 to have that flexibility with each of us doing 12 both, private practice and the contract work. I 13 tried to draw y'all tight figures on some of this 14 stuff, but that's the type of practice we have, as 15 well as us being there 20 years. 16 Most of the people that I deal with on a 17 regular basis have been there -- the DA has been 18 there 16 years, the law clerk three years before 19 that, probation officer the same way. It's a 20 typical small town atmosphere as far as everybody 21 knowing everybody. 22 And it also applies to the people who we 23 represent. I went to school with them. I 24 represented many of their fathers, their 25 grandfathers, I represented their mothers, their KING COURT REPORTING SERVICE 50 1 sisters. I've raised some of them since they've 2 been 10 or 11 years old in juvenile court. 3 Repeatedly represented them all the way to doing 4 serious time in the district system. 5 I have the benefit of knowing who they are, 6 where they come from, who they hang out with, what 7 type of family environment they come from. And so 8 I have a little bit different perspective than 9 somebody practicing in Atlanta. 10 When I go to the jails I know half of them. 11 I've known them for sometime, and I pull the jail 12 list out. I go back and pull out the old files on 13 half of them and just add a few more pieces of 14 paper. 15 And so that's the type of situation that I'm 16 dealing with, but it does provide me with a better 17 handle on dealing with folks. It's easier to deal 18 with people that you know than some stranger. I 19 don't have to keep going back to try to get them 20 to trust me. They know who I am, and they know 21 how I've dealt with them in the past. 22 And so my angle is going to be a little bit 23 different, and I have absolutely no complaints 24 from the people that I work with. Sometimes it 25 seems like the peace officers investigate as much KING COURT REPORTING SERVICE 51 1 for me as they do for the victim. No conflicts in 2 the discovery. I file the same two pieces of 3 paper in every case. They get the file or 4 whatever information they have to me. And so I 5 come out in a little bit different scenario then 6 many of them. 7 Since receiving y'all's invitation, I tried 8 to give it a lot of thought. I spent a few extra 9 days fishing to have some thinking time. I'm very 10 cognizant of the new Bass pro shop that I'll 11 probably get to before I go home, but these are 12 some of the thoughts that I've come up with. 13 I've tried to be serious on them. I've 14 tried to dig down to the nitty-gritty. I hope I 15 don't offend anybody or any group. I figured 16 y'all want serious proofs, y'all want some serious 17 opinions on there, y'all want candor, then that's 18 what I'm going to try to give you and I'll take 19 any questions or criticisms that y'all want to 20 give me. I have sure gotten a lot over the last 21 couple of years. 22 Dodge County, which is one of my counties, 23 has been a major target, and I'll address that in 24 my final comment. I think the primary issue that 25 we're trying to deal with is how to maximize the KING COURT REPORTING SERVICE 52 1 theoretical representation that best fit within 2 the confines of a limited budget. 3 That's the real world aspect. We've got to 4 get as much representation of the money that we 5 have and yes funding it will take care of it for 6 the most part. There are things aleady in place. 7 The real issue is putting the money where your 8 mouth is. Getting our slice of the Congressional 9 budget pie. That's the real thing. 10 Everything is already in place to provide 11 indigent care if you just fund it. I think y'all 12 have heard that over and over and so I'm not going 13 to deal with that anymore, but I thought we may 14 need to change the way we think on it a little 15 bit. 16 This is a Constitutional mandate, as you 17 stated. This is something that our Constitution 18 or cases have interpreted to be a part of our 19 society, and it's not the same thing as what you 20 can get for hire, or from a hired gun, but I think 21 the prospective that you ought to be looking at it 22 is what type of indigent defense is required. 23 I've been a lawyer. I've dipped through a 24 few cases and tried to find some that told us what 25 was required, not what we've done wrong on KING COURT REPORTING SERVICE 53 1 hindsight, but what they call the Constitutional 2 required, and I only found really six major 3 points. 4 The first of these is the right to counsel 5 doesn't prove until the critical stage. You have 6 a duty to inform the Defendant of their 7 Constitutional statutory rights. You have to make 8 decisions, make intelligent ones. Make sure that 9 he receives a fair trial and an impartial trial. 10 Investigate the case, interview the witnesses, and 11 search for the truth. 12 You must be properly prepared for trial, and 13 if it's a plea agreement he should make an 14 informed and voluntary plea, and be advised of all 15 of his rights, and odds, and chances on this case. 16 And this is all that I could find that the case 17 law puts forth, but I think that it's clear what 18 the purpose is of the Public Defender is to 19 guarantee the Defendant receives the benefits of 20 all of his legal rights; that the wheels of 21 justice match properly in his client's case, and 22 that the concept of due process and protection be 23 fulfilled in each and every case. 24 However, contrary to some think tanks and 25 various newspapers that I tend to know, the KING COURT REPORTING SERVICE 54 1 responsibility of the Public Defender is not 2 included. The following items: One, I don't that 3 you should attack the system that creates you. 4 Don't bite that hand. Rather the Public Defender 5 should be an expert in and use the system on 6 behalf of his client. 7 Any discord regarding the particular aspects 8 of criminal procedures should be challenged for 9 the purpose of repair and not disruption, and 10 challenged properly through objection and appeal. 11 I think responsibility of the Public 12 Defender does not include using the Public 13 Defender's office as a tool to promote political 14 or social agenda. That is not the Public 15 Defender's obligation. The sole cause of the 16 Public Defender should be justice for his clients 17 on a case-by-case basis. 18 More accomplished should be a search of the 19 truth and his client's guilt and pursue the social 20 agenda while representing the individual clients 21 may pose a conflict of interest to the detriment 22 of the client. 23 Public Defenders have no business taking on 24 social causes like the death penalty. You may not 25 agree with it. Get with some private think tank KING COURT REPORTING SERVICE 55 1 and attack it, but that's not the Public 2 Defender's job. His job is to defend his client's 3 interest and look after him. 4 It should not include engaging in frivolous 5 motions and procedures which neither aid or 6 discern the truth or mitigate the punishment, but 7 rather only serve to delay, confuse, increase 8 costs, eliminate others, and put on a dog and pony 9 show to make the client happy. 10 A better lawyer when best is limited time in 11 seeking the truth of the client's guilt, and if 12 the case can be proven a lawyer should invest his 13 effort and minimize his client's punishment. And 14 I submit to y'all those are the only two issues in 15 the criminal case. Everything else works for 16 those two points. 17 The Public Defender should not push a client 18 who denies his guilt with questionable evidence to 19 plead guilty, nor should he encourage an obviously 20 guilty client to go to trial, especially one who 21 admits his guilt to the lawyer. 22 Although this may not happen in big towns, 23 it happens a lot in my circuit. Most of them will 24 tell me whether they've done it or not, and that's 25 a great boon if you are a Public Defender in your KING COURT REPORTING SERVICE 56 1 hometown. Of course, it helps to have all of the 2 ins and outs of the case when you go interview 3 them at the jail and call their hand on the first 4 or second story that they come up with. 5 There is nothing wrong with making a guilty 6 plea and receiving a lesser sentence. I have 7 heard a lot of institutions condemning this, but 8 this is the way of the criminal law and it's 9 always been this way. Without it there would be 10 bad lawyers and people sitting in the jails. 11 I remind you, it's not a chess game or a 12 football game. You're trying to discern, first, 13 whether the person violated a statute. That's 14 your first job. And if he did, then you try to 15 give him a fair and just punishment, but it's not 16 some game where they have a right to invoke all of 17 the rules of the chess match, regardless of the 18 truth of the facts or the circumstances of this 19 case. 20 I think too many of them look at it as a 21 game and it's not that. The Public Defender and 22 the Constitutional rights are to make sure that 23 truth prevails, not that you have a particular set 24 of odds on winning some game. I think this idea 25 needs to be thrown out. KING COURT REPORTING SERVICE 57 1 But a plea many times is the best possible 2 course. It's beneficial to the client. It 3 lessens the plea. It lessens the time he spends 4 in jail. 5 If you have a Defendant who is on probation 6 or parole and can't make bond, or just can't make 7 bond, a guilty plea if he is, in fact, guilty and 8 wants to admit, will avoid a lot of jail time that 9 he is in making in the jail. 10 He may be knocking out a parole sentence, 11 but he won't be knocking out time on his sentence. 12 If he sits in jail for a year, he could be through 13 with a sentence and back out by the time he goes 14 to trial. 15 And I remind many of you that guilt is what 16 it's all about, and if he's guilty and he admits 17 it why jerk everybody around with a trial? Let's 18 do the best we can on a guilty plea and move on. 19 Life is mostly about making decisions and moving 20 on. 21 You can clear out many cases for one plea. 22 Usually the higher crime will set the amount. The 23 rest of them can get washed in for concurrent time 24 and the Defendant can greatly benefit for having 25 to go to each of the counties in the circuit and KING COURT REPORTING SERVICE 58 1 working out pleas and getting sent off to prison 2 and coming back and trying his case, but you can't 3 do that with trying cases that you can only do a 4 plea bargain. 5 And so there is a bad stigma on plea 6 bargains. An error in judgment on some people's 7 part. They're good. They are helpful. They're 8 just like anything else. The proper way is the 9 best way to do it. 10 A Public Defender should not forsake his 11 independent professional judgment due to pressure 12 from any other source. He knows his clients, his 13 case and his venue. He knows them best. It is my 14 belief that the Defendant's case cannot be managed 15 from afar. It's just as standardized forms cannot 16 fit any case. 17 Standardized Public Defender tactics and 18 strategies without understanding the facts of an 19 individual case would lead to perfection of form 20 but provide little substantive help for the 21 Defendant. 22 The Public Defender, regardless of which way 23 y'all go, contract or Public Defender system, must 24 remain an independent contractor with discretion 25 regarding the exercise of his duties as they see KING COURT REPORTING SERVICE 59 1 fit for the individual client. No two cases are 2 alike. No two clients are alike. And each one is 3 separate and it should be approached on a 4 case-by-case basis. 5 And attorneys don't need direction from 6 Atlanta or any other place telling us how to try 7 our cases. If you have no faith in the lawyers 8 doing it, just like if you have no faith in the 9 judges or the DAs, it's all for nothing. 10 Somewhere along the line there has to be 11 presumptions that people will do their duty, their 12 responsibility. The Public Defender is a vital 13 component of the criminal justice system, just 14 like the judges and District Attorneys. He should 15 exercise the same level of professionalism and 16 dignity as they should. And he should receive the 17 same respect. 18 The faith of the Public Defender is not 19 inconsistent with working within the system. It 20 is time that we put the maverick concept of the 21 Defendant's counsel to rest as far as the Public 22 Defender is concerned. He should be part of the 23 system. 24 Just like you got three parts of government 25 that balance off against each other, but none of KING COURT REPORTING SERVICE 60 1 them are evil or bad, the Justice Department, the 2 executive branch, legislative, it's a balance of 3 power and they all professionally do their job and 4 pull on each other and push each other to get fair 5 results. 6 And the same thing should work with the 7 Public Defender, and the DA, and the judge. It 8 doesn't have to be personal and confrontational in 9 that regard. They can all be professionals and do 10 their job, and do their best for each client that 11 they want to do, whether it be the state or the 12 Defendant. 13 Regarding the contract attorneys, I know 14 there is a move. You can smell it in the wind, 15 but the Public Defender's office and every county 16 in the station you're going to have essentially 17 run from somebody in a tower in Atlanta. That's 18 not possible in all of these small rural counties 19 at this time unless y'all really want to find lots 20 of money and fund it. 21 MS. DEVINE: Why is that not possible? 22 MR. STRAUGHAN: There is not enough money to 23 buy them all. There is a difference in price 24 between the contract attorneys and the attorney 25 supplying the building, the office, the secretary, KING COURT REPORTING SERVICE 61 1 telephone experience, utilities, bookkeeper, 2 insurance, copy machine. That all costs money. 3 In our circuit I get $63,000. I don't get a paper 4 clip. That's all I get is $63,000. I'm looking 5 after all of the felony cases in five counties. 6 MR. DUBOSE: How many is that on an average 7 basis? 8 MR. STRAUGHAN: Number-wise? 9 MR. DUBOSE: Yes, sir. 10 MR. STRAUGHAN: I don't know. I exceed the 11 theoretical limit, there is no question about 12 that, but I haven't had more than I can handle 13 thus far, but we have the benefit of being three 14 in my office, and we flex around, and I am going 15 to adress the particular aspect of my system here 16 in a minute, and I'll explain some of that. 17 MR. HOLMES: Just list me the five counties. 18 MR. STRAUGHAN: Montgomery, Wheeler, Lee. I 19 used to have all six, but now Colonel Baker does 20 Pulaski County, and we have another attorney doing 21 juvenile, and another attorney doing misdemeanor. 22 MS. HOLMEN: Are those separate contracts 23 for all counties? 24 MR. STRAUGHAN: All seven. 25 MS. HOLMEN: So you're doing felony, KING COURT REPORTING SERVICE 62 1 misdemeanor, and everything? 2 MR. STRAUGHAN: For five counties. We used 3 to have everything, but our circuit has found us 4 some more money and we got some more help. It's 5 been slow coming, but there is going to be some 6 counties that you're going to need, at least for a 7 while, to work with contract attorneys. 8 I mean, I personally believe a system set up 9 with the Public Defender's office is going to be 10 the way to go, but you're not going to be able to 11 merge that way immediately. I mean, you know how 12 long they've been working on this project. There 13 are people in jail all during this the time. 14 Somebody needs to deal with it. 15 Things keep rolling on and until a system is 16 set up you're going to need to use them, and 17 they're much cheaper. There is no inherent 18 deficiency in contract attorneys. I would say 19 they receive the benefit of all the other learning 20 that the attorney gets from the other areas of law 21 that you practice in. 22 Business law would give you an uncanny 23 ability in dealing with conversion of payments for 24 real property improvement grants. A lot of times 25 it's not really a crime, it's a contract breach, KING COURT REPORTING SERVICE 63 1 you know, where somebody that's done that type of 2 work is spotted. Sometimes it's very hard to 3 throw it out and you've got to deal with all of 4 the numbers and supplies in the case to do it. 5 CHAIRMAN MORGAN: Can I interrupt you for a 6 second? 7 MR. STRAUGHAN: Yes, sir. 8 CHAIRMAN MORGAN: You made a comment. I 9 wanted to make sure that I heard you correctly. 10 Did you say that you thought that the Public 11 Defender system would be a better one? 12 MR. STRAUGHAN: I think so, as long as it's 13 not micro managed from an office in Atlanta. I 14 think that's the worst thing that you can do is 15 have somebody up here tell somebody what to do. I 16 mean, I favor Calhounism, but experience say that 17 the people down here don't know what's going on up 18 there and vice versa. 19 CHAIRMAN MORGAN: Why do you feel it would 20 be better? 21 MR. STRAUGHAN: I think it would get better 22 acceptance. It would be easier to merge it into 23 society. I think you can make it part of your 24 system. They ought to have offices, you know, 25 just like the other funding needs to be the same. KING COURT REPORTING SERVICE 64 1 The DA has a lot more responsibility than just 2 trying the cases. He's got arraignments, and 3 indictments, and a lot of other stuff that we 4 don't happen to deal with. 5 I think you could get the same service 6 either way. I foresee it coming that way, and if 7 coordinated properly that it would probably be 8 better in the long run because it would get 9 entrenched in society and become something we're 10 used to paying for eventually, and we wouldn't 11 have to be hunting for money. 12 As far as providing legal representation, 13 that's strictly the quality of the lawyer that you 14 hired, and it didn't matter whether he worked for 15 the Public Defender's office or you can appoint 16 one that happened to be in court. If he's serious 17 and responsible and will do the job right then 18 you've got it, and it doesn't matter what tag he 19 wears when he comes in to court. 20 MR. HOLMES: You mentioned about the Public 21 Defender, they might be taking marching orders 22 from Atlanta. DAs don't take their marching 23 orders from Atlanta, do they? 24 MR. STRAUGHAN: No, I don't think they 25 should. KING COURT REPORTING SERVICE 65 1 MR. HOLMES: It would seem that the Public 2 Defender system operate sort of like the DA 3 system? I mean, DAs have a -- 4 MR. STRAUGHAN: I'm not the lawyer that is -- 5 MR. HOLMES: DAs don't get their marching 6 orders every day from Atlanta, do they? 7 MR. STRAUGHAN: No, but they're responsible 8 through their electorate in their home systems, 9 and I would like to see the Public Defender 10 responsible. I don't think they should be 11 elected. That would be a grave error. 12 MR. KURTZ: Some of our systems they have 13 that. 14 MR. STRAUGHAN: I know, but you've got to 15 insulate them because most of the public don't 16 like criminals. They don't like people that rape, 17 and kill, and sell dope. Most citizens don't look 18 kindly on that. 19 MR. KURTZ: Well, that's something that they 20 think the same down there as they do up here. 21 MR. STRAUGHAN: And I don't think the senior 22 Public Defender in an office should sit there and 23 be telling all of his people how to handle the 24 cases. 25 I mean, he should watch for big mistakes, KING COURT REPORTING SERVICE 66 1 but whoever is working on it, I mean, if they're 2 not competent they ought not be there anyway, and 3 if they are that's the one that's most familiar 4 with it and he's dealing with it. And as I say, I 5 believe in the case-by-case individual basis on 6 representation. You may have 100, but each one of 7 them are individual cases and you should look at 8 them that way, but I think the man makes the 9 lawyer and not the title of his office. 10 MR. TAYLOR: Or woman. 11 MR. POWELL: Or woman, and I think the 12 contract defender should at least fill the gap 13 until at least some permanent system is installed, 14 but I think if they get in there and be a regular 15 part of government it would be much easier to fund 16 it and keep it going. 17 MR. KURTZ: Do you have a strong feeling one 18 way or the other whether the funding should come 19 from the local level or from the state level? 20 MR. STRAUGHAN: The state level. This 21 gentleman was absolutely right on that. He 22 criticized a small town county commissioner who 23 takes money away from the school kids and give it 24 to represent the bad guys. 25 MR. HOLMES: I remember seeing a list of KING COURT REPORTING SERVICE 67 1 state funding. Your county seemed to be right up 2 there on top. Is there a political reason for 3 that? 4 MR. STRAUGHAN: I mean, I didn't fall off 5 the turnip truck yesterday. 6 MR. HOLMES: No, I don't mean that. 7 MR. STRAUGHAN: No. We get help, because 8 everybody down there works together. Some people 9 have been around long enough to make connections. 10 MR. LAWSON: Are you appointed by the judges 11 or are you appointed by the Tripartite Committee? 12 MR. STRAUGHAN: The Tripartite Committee 13 worked with a court administrator and the judge. 14 You have to satisfy the judge, you know. 15 MR. DUBOSE: Now, do you have a contract 16 with each separate county or is it just one 17 contract? 18 MR. STRAUGHAN: I have one contract that 19 handles all of the counties. 20 MR. HOLMES: Does that contract come up from 21 year to year? 22 MR. STRAUGHAN: It's a year-to-year, 90 days 23 termination notice. 24 MR. LAWSON: What do you mean by satisfy the 25 judge? KING COURT REPORTING SERVICE 68 1 MR. TAYLOR: Mr. Lawson said what do you 2 mean by satisfy the judge? 3 MR. POWELL: Well, that's part of the 4 approval process. It's his responsibility to make 5 sure that a competent attorney gets fit in, and he 6 is and should be the watchdog of his court. 7 That's one -- I mean, the judge is not there to be 8 a player. He's there to be a referee and a 9 guardian, and he makes -- I mean, a lot of people 10 forget when they talk about how people are not 11 getting the quality of representation. There is a 12 judge sitting there, and if things are not going 13 right it is the judge's job to say whoa, let's 14 back up and do something else. 15 And he should be in on the deciding who is 16 going to be Public Defender, and I'm an elected 17 officer, an appointed officer, and I believe the 18 Bibb County case of 1957 when Georgia first 19 decided that we have a right to public funds and 20 the Superior Court has the proper means of 21 appointing counsel. I still believe that that's 22 where the proper power flow should come from. 23 MR. TAYLOR: Is your Tripartite Committee 24 assure you the statute, the Chief Judge and 25 Superior Court judge appoints one, and the county KING COURT REPORTING SERVICE 69 1 commission appoints one, and the bar association 2 appoints one, and those three then hire and fire 3 and sets standards 4 MR. STRAUGHAN: Right. As long as I 5 remember it, but they took probably nine months 6 working and figuring on who they were going to get 7 to do the juvenile and District Attorneys. 8 MR. DUBOSE: Did they take other bids from 9 other attorneys interested in this position? 10 MR. STRAUGHAN: Yeah. 11 MR. DUBOSE: Is it always low bid or is it 12 other criteria? 13 MR. STRAUGHAN: No. It's all types of 14 criteria. Trying to figure out somebody that will 15 do the best job and can stay within the price 16 range that's going to be serious and do what 17 they're supposed to do. 18 MR. KURTZ: Is the contract year by year? 19 MR. STRAUGHAN: Year by year. 20 MR. KURTZ: And how many cases did you make? 21 Drew Powell said he tried 11 cases last year. How 22 many trials have you had? Have you had any since? 23 MR. STRAUGHAN: A dozen or so. It's hard -- 24 you know, they run together and I don't keep track 25 of the numbers. I mean, it's not important to me. KING COURT REPORTING SERVICE 70 1 It makes no difference on my pay or anything of 2 that nature. Usually too many records just gives 3 things for people to come back at you anyway. 4 MR. KURTZ: I'm about to second that same 5 area again a little bit further in a different 6 direction. As a contract attorney, of course you 7 also practice other things, or act as a consultant 8 and so forth? 9 MR. STRAUGHAN: I have to have a civil 10 practice, at least, to support the Public Defender 11 practice. 12 MR. KURTZ: What proportion of the total 13 income is the criminal stuff? 14 MR. STRAUGHAN: Depending on my income from 15 the civil side, what I receive from the Public 16 Defender's office makes up one-sixth to one-fifth 17 of my income. 18 MS. HOLMEN: Your firm's income? 19 MR. STRAUGHAN: My firm. It takes about 20 half of the time, but about sixth of the income. 21 For $60,000 you can run an office, pay utilities, 22 and hire a secretary for that. And like I say, we 23 don't get even a paper clip or a piece of paper. 24 It's a deal for my firm. 25 MS. HOLMEN: What do you do about KING COURT REPORTING SERVICE 71 1 interpreters? 2 MR. STRAUGHAN: We have some on tap. 3 MS. HOLMEN: That the Court will use? 4 MR. STRAUGHAN: If he's qualified and 5 approved through the system or whatever. 6 MS. HOLMEN: You get them through by motion? 7 MR. STRAUGHAN: We have some on tap. When I 8 need one I let them know. Actually, I call the 9 DA's office and they have contacts with the 10 interpreters and they'll have one down. 11 MS. HOLMEN: But you don't have to pay for 12 that out of your contract? 13 MR. STRAUGHAN: No, I don't have to pay for 14 anything out of my contract. Not in my circuit. 15 CHAIRMAN MORGAN: Mr. Straughan, you heard 16 the previous speaker talk about the time that he 17 had available to devote versus the demands. Do 18 you have those kind of issues, or did you find a 19 way to give each case the time it requires? 20 MR. STRAUGHAN: I give each of them the 21 time, and it's slowly tightening up, but I would 22 take the contrary position to what was we see in 23 the paper. I don't think indigent care is in any 24 state of chaos or disrepair. I think it's just 25 the normal cycle of population growing and you KING COURT REPORTING SERVICE 72 1 have to keep upping the administrative offices of 2 the government to meet those needs, and this one 3 is lagging behind, but so are a lot. 4 There should be more probation officers. 5 They have a heavy caseload. I mean, everybody 6 could use more. I mean, that's normal. You can 7 go to any office and ask could they use more help, 8 and certainly yes, but if I reach a point where I 9 don't feel like I can do it then I'll holler for 10 help, but right now I'm managing it, but you get 11 better at things after doing it for 20 years. 12 And we're in a friendly circuit where 13 everybody, it seems like, works with me as much as 14 the DA. I can go to any police officer. Any 15 deputy. I can go down to the GBI office and ask 16 for reports. I get what I ask for as far as 17 information and that makes it easy for me. 18 I go to the DA's office and use the 19 discovery. Go up there and they lock me in. I 20 like to go up there during lunch when nobody is 21 around and I go up there and they lock me in the 22 DA's office at lunch and give me my own copy 23 machine, and I go through all of the files and get 24 what I want. 25 I used to copy everything until you get all KING COURT REPORTING SERVICE 73 1 of these bar complaints and now I just take a few 2 notes unless I need a memorandum, or an interview 3 or something. I reduced my copy book drastically, 4 but everything is there for me to tap. 5 MS. DEVINE: And how did you cultivate this 6 type of close relationship with the DA's office? 7 Is that a product of your personality, or is it a 8 product of your longevity in the circuit? 9 MR. STRAUGHAN: I would say it's a product 10 of everybody, without a real alienation type of 11 person that I have to deal with. One bad one can 12 spoil, but everybody knows -- they know what's 13 going on and how it works. 14 Like from the District Attorney's 15 perspective. If he doesn't want to try a bunch of 16 cases, and if he wants to see the guilty ones pled 17 out, then he might as well show me his cards and 18 I'll show them to my client and say look, here is 19 the videotape of you selling dope, et cetera, et 20 cetera. This is what's on the table. You don't 21 have to wait 10 days for a trial. 22 Or I may have them two months ahead of time. 23 And I can gather up all of the information that I 24 need and go see my client and let him know it all, 25 and then he can be having some time to think on KING COURT REPORTING SERVICE 74 1 what he wants to do. 2 I mean, y'all want to be real about it, but 3 the time somebody filters through the arrest 4 stage, the preliminary hearing, they filter 5 through the District Attorney's office 6 investigating the case and they go through the 7 Grand Jury, the vast majority of them are going to 8 be guilty. 9 If they weren't in all of that other stuff, 10 something is wrong with it. But it has been my 11 experience that it does work, and by the time you 12 get there, if you just play the numbers, most of 13 them are going to be guilty. 14 MS. DEVINE: So people are assumed to be 15 guilty before trial? 16 MR. STRAUGHAN: No. It would be a grave 17 error for a defense attorney to assume innocence 18 on his client. The worst thing that you can do is 19 guard your client's innocence. I would say it is 20 better to look for the worst and if it turns out 21 the other way so much better. 22 MR. LAWSON: Are you suggesting that every 23 defense lawyer should presume his client is 24 guilty? 25 MR. STRAUGHAN: I think that should be in KING COURT REPORTING SERVICE 75 1 the back of his mind. 2 MR. LAWSON: I've been wrong for 31 years. 3 MR. STRAUGHAN: No. There is a difference 4 between what the jury does when they consider the 5 evidence and what you should do on your duty, and 6 it's inconsistent and rational thought to know on 7 one hand that the vast majority are going to be 8 found guilty and at the same time assume that all 9 of them are going to be innocent. 10 I don't think that you're doing your client 11 justice doing that. I think you should be looking 12 for all of the possible dangers and pitfalls that 13 your client can fall in. 14 On the other hand, if you smell the smallest 15 whiff of innocence in any case then throw down all 16 of the bars and pull out and represent your client 17 any which way you can. 18 MS. DEVINE: There is a question from the 19 gentleman here. 20 MR. RUNDLETT: I was just going to ask you 21 to discuss your ethical understanding -- 22 CHAIRMAN MORGAN: I'm going to interrupt and 23 take the prerogative of the chair. We've got a 24 couple of questions from the chair and I'm going 25 to make sure that all of the Commission members KING COURT REPORTING SERVICE 76 1 have their questions answered and then we'll move 2 to the audience. 3 MS. DEVINE: Well, I think that's a good 4 question, actually, if you would expound on that. 5 MR. STRAUGHAN: I do everything that I can 6 for them. I try to deal with the real world. 7 Don't take me wrong or rewrite my words to saying 8 that I don't represent my clients totally. I do 9 everything that I can for them; however, to 10 presume that they're all innocent and then get 11 caught with your pants down at trial, you would 12 not be doing what you should be doing. 13 You should be looking under every rock, 14 including your client's paper, too. I mean, you 15 can't live in a dream world and represent 16 Defendants. If when they go off to jail they go 17 off to a real jail, to a real prison, and theory 18 is great, but you still got to keep one foot down 19 on the hard, cold earth, and the hard, cold earth, 20 the vast majority of them are going to be found 21 guilty, and in our system the jury finds the 22 closest Defendant to the truth that you know of. 23 I do everything that I can for them. I 24 haven't put up with this for 20 years that I don't 25 have any evidence or any morals. KING COURT REPORTING SERVICE 77 1 MS. DEVINE: No, that wasn't the question. 2 The question was vigorously representing your 3 clients -- 4 MR. STRAUGHAN: Yes. 5 MS. DEVINE: And whether or not your 6 presumption of guilt somehow impairs your 7 vigorousness. 8 MR. STRAUGHAN: No. You don't have to love 9 them or even like them. You have to understand 10 that you have a professional moral duty to 11 represent them as fully as you can and make sure 12 all of their rights are in place, but I will say 13 that there is something wrong with a person that 14 loves the rapist or a murderer. That's the 15 mentality that I would question. 16 CHAIRMAN MORGAN: Let me ask this question: 17 How do you deal with a situation where the 18 individual has admitted to you their guilt; they 19 robbed the store, but there is a serious legal 20 issue involved, an identification issue or a 21 search and seizure issue or something like that. 22 MR. STRAUGHAN: I advise them of that. They 23 have their right. I mean, somebody can tell me 24 I'm guilty as sin, but I want to take my chances 25 at trial. Well, that's his life and if that's KING COURT REPORTING SERVICE 78 1 what he decides that he wants to do then I'm going 2 to burst my butt to win the trial. 3 But the odds are if he's guilty the evidence 4 is going to pan out at trial that way and that's 5 what's going to happen, and he's going to roll the 6 dies and get a more serious sentence than he would 7 have if he had somebody working it out for him. 8 But I see some of them coming out, I've seen 9 some attorneys coming out and patting them on the 10 back and baby talking to them. We're not here to 11 babysit these people, though you do have to do it 12 on the juveniles a lot, although I would suggest 13 being a stern parent is better. 14 You provide them legal counsel, sound 15 advice, and you're supposed to represent them as 16 fully as you can, but you've got to live in the 17 real world, and these people come from the real 18 world and part of being a professional, being of 19 lawyer is being able to pull yourself away from 20 something and look down at it and study it. 21 MR. IDE: Well, getting back to the case 22 law. Going away from law school. The constable 23 blundered and should the guilty go free in a case, 24 say, the system has got to be protecting the 25 individual if they're guilty by abuse by KING COURT REPORTING SERVICE 79 1 policemen, attacking jury systems because they're 2 not racially represented. 3 Now, those are tough issues if you're living 4 in a town and you're making a living off civil 5 cases, you may not be the most popular person in 6 town, but you have that obligation it seems to me 7 to make sure that the system is functioning 8 constitutionally regardless of your particular 9 individual opinion. 10 MR. STRAUGHAN: I agree with that, and 11 people there understand it, but after a few years 12 people understand how it works. I have no more 13 problem with it in my civil practice. 14 The District Attorney doesn't get blowed out 15 of -- you know, he doesn't lose his cool but not 16 because I'm challenging something even though we 17 both know it's fruitless or has no point, but it's 18 just a right or exercise, but that's just the way 19 it has to work sometimes. 20 MR. IDE: My point is, if the system is 21 broken it's got to be fixed, regardless of your 22 individual opinions. 23 MR. STRAUGHAN: Yes, I think we should 24 always be looking for ways to fix it. That's what 25 the challenges, and objections, and appeals and KING COURT REPORTING SERVICE 80 1 all of that is for. And that's the attitude to do 2 it. 3 We have a built-in repair system available 4 to criminal justice that it's not available to 5 other segments of society. Or government, excuse 6 me. There is -- I mean, there is -- that's how 7 you repair them. 8 MR. IDE: Do you file a Motion to Suppress? 9 MR. STRAUGHAN: I file one each and every 10 time. You don't know what's coming. Sometimes 11 everybody you get out on bond will disappear until 12 the day of trial. Not everybody, 99 out of 100. 13 Once I get them out on bond they're gone. I'm on 14 my own to get ready for the case. The only ones 15 that I can repeatedly talk to are the ones that 16 are stuck in the jail. 17 And so a lot of times I don't know what's 18 coming. I hadn't had a phone call, I hadn't had a 19 letter, I hadn't had anything. And so I filed 10 20 basic motions that are possible on any case that's 21 a matter of routine. Each and every time that 22 they come into play I activate them. If they 23 don't, then Motion to Suppress the statement. And 24 if it turns out no statement was made, well no big 25 deal. Just one more page of paper in the file. KING COURT REPORTING SERVICE 81 1 But on the other hand if it pops up it's 2 sitting there in place and we'll have a hearing a 3 on it. And that's the way that I have to do it, 4 but I think -- and it's coming out, but I think my 5 main point, it's been this view for so long that 6 we've got to be these mavericks and challenging 7 everything and testing the limits. 8 You're not really doing your client as good 9 a service as if you become an expert on dealing 10 with what's in the system and not just stirring up 11 trouble. And I would like to reiterate the truth 12 or the guilt is the real issue. 13 We get scratches from that sometimes to 14 think that there is some type of game that we all 15 have rights to play out. Like putting your money 16 in the slot machine and swinging it. That's your 17 right. 18 You see, there is business, and we're there, 19 all of us are there, true or false, if somebody 20 violates the statute. 21 MR. KURTZ: Is that right? Is the job of 22 the criminal defense lawyer to find out whether 23 his client did it, or is it not? That's the job 24 of the judge, isn't it? Is that right? 25 MR. TAYLOR: No, that's not the judge. KING COURT REPORTING SERVICE 82 1 That's the job of everybody. 2 MR. KURTZ: It's the job of the trial that 3 goes on in the Judge's courtroom. 4 MR. STRAUGHAN: That is what the whole 5 system is in place for, is to decide that 6 question: Has this person violated a statute? 7 MR. KURTZ: And the way that's decided is 8 through the adversary system where the state gets 9 to put on his evidence and challenge it and make 10 sure that the State puts on its evidence legally 11 and Constitutionally acceptable. 12 MR. STRAUGHAN: That's right. 13 MR. KURTZ: So do you think that it's the 14 job of the defense lawyer to decide whether his 15 client is guilty? 16 MR. STRAUGHAN: No, but y'all jump on the 17 wrong things sometimes. I told you that it's an 18 error to go in there and assume your client is 19 innocent when you get ready for a case. 20 I mean, that's just like us not doing 21 anything and assuming that the terrorists are not 22 going to strike again. We don't do that. We're 23 making preparations. We're trying to foresee all 24 of the consequences and safeguards, and that's how 25 you safeguard the Defendant, assuming the worst is KING COURT REPORTING SERVICE 83 1 going to happen. Is it's easy to defend an 2 innocent client. Things will pan out for you and 3 you'll walk through the case and look like a pro, 4 but that's not going to happen in the vast 5 majority of the cases. 6 The vast majority is you're going to get to 7 trial, the client has been lying to you the whole 8 time, and everybody else has a different story 9 than him, and all the hard evidence points toward 10 him being guilty. 11 And I think you're better off -- it would be 12 better off for you to look for the worst and work 13 your way back toward innocence than the other way 14 around, and the presumption of innocence only 15 applies to the jury trying the case. It shouldn't 16 apply to the defense attorney. 17 MR. KURTZ: I have a couple of questions. 18 First of all, what percentage of criminal cases in 19 your counties are indigent cases? I mean, good 20 cases. 21 MR. STRAUGHAN: They're all the same. 22 Average, I have seen about 80. 23 MR. KURTZ: 80 percent? 24 MR. STRAUGHAN: 80 or better. 25 MR. KURTZ: And could you walk us through a KING COURT REPORTING SERVICE 84 1 case, not any one in particular, just a standard 2 case. Somebody got arrested last night for 3 breaking and entering, okay? And he got arrested 4 and now he's in jail. What happens next? 5 MR. STRAUGHAN: If it's possible, to get him 6 a bond. Set him a bond that usually requires -- 7 MR. KURTZ: You'll be notified by -- 8 MR. STRAUGHAN: Somebody will holler at me. 9 Usually the DA and I will discuss the case and 10 he'll be able to fill me in on the guy's past 11 history and find out first whether he is available 12 for a bond. 13 If he's on probation the judge pretty much 14 is not going to let him out, but if he was on bond 15 for a previous charge and gets this new one he's 16 not going to get out, but if it's not one of those 17 then we get a reasonable consent bond set, and 18 since I'm out of town we're doing it by phone then 19 he'll walk it over to the judge's office that's 20 next to his and get it signed and come back and 21 fax it to the sheriff. 22 And if he makes one, like I said, I'll never 23 see the guy again, or the girl. If it's not 24 somebody that can be made bond then I'll go and 25 visit them at the jail and make regular follow-up KING COURT REPORTING SERVICE 85 1 visits in preparation for trial. 2 If I can talk with them I get all of the 3 data out of them I can, I interview all of the 4 witnesses that they tell me, and check out any 5 evidence that they have. I go through the 6 District Attorney's file. I go and talk to the 7 police officers, or the patrolmen, or whoever is 8 prosecuting the case, and get their stories on it. 9 MR. KURTZ: Are indictments used in most of 10 your cases? 11 MR. STRAUGHAN: Yes. 12 MR. KURTZ: And how long -- I mean, how 13 often -- how many terms of court are there? 14 MR. STRAUGHAN: Three. 15 MR. KURTZ: And the grand jury -- 16 MR. STRAUGHAN: Most counties, some of them 17 only have three, but most of them three. Somebody 18 that I go see and their typical case is on 19 probation, this is his fourth, fifth time back in 20 front of the court, he doesn't want to sit there 21 and wait six months for his time to go to trial. 22 I think our average, probably, is more like four 23 to five. 24 If he wants to plead then the next time we 25 have a court date I'll see if I can get him up KING COURT REPORTING SERVICE 86 1 there and we'll work something out. If not, week 2 go back down. Usually we can get all of the 3 pieces in place real early, and they don't play 4 hide the ball with you and you got free access to 5 all of the information they have, you can get a 6 grasp on a case real quick. 7 Anybody that's sitting in jail we give a 8 real high priority to move their cases on as fast 9 as we can. Now, if they want to try the case he's 10 going to have to wait in line. If he can't get a 11 a bond, he's still going to wait in jail. 12 I mean, that's a dead-end there. That's the 13 usual course. 14 MR. DUBOSE: Paul, I need to stop you. We 15 are really losing the morning quickly. We have 16 other people to hear from, and I'm sure Mark will 17 be glad to talk with you after the meeting about 18 any other questions that you may have, or any 19 other members. 20 MS. DEVINE: I have a question that --. 21 MR. DUBOSE: I'm sorry. 22 MS. DEVINE: Actually, it's something that I 23 would like for all of the panel to respond to, and 24 that is whether or not you provide any type of 25 instructions for your clients as to how they KING COURT REPORTING SERVICE 87 1 should keep in touch with your office, 2 particularly the persons who may not be culturally 3 aware, like Hispanics. 4 MR. STRAUGHAN: Well, mine get cards and 5 address. They can go in any courthouse, or police 6 office, or anywhere in the circuit and get 7 directions there. As far as the Hispanics, there 8 is not two Hispanic cases every two or three 9 years. They don't even figure into the crime in 10 our area. That's just rather. The others -- most 11 of them, though, they have been to my office 12 before. It's not a problem with getting people 13 available. 14 MS. DEVINE: I mean, after they make bond or 15 whatever Mr. Straughan said. 16 MR. STRAUGHAN: All they have to do is call 17 me and set up an appointment. I leave them the 18 instructions. I don't go hunting, they bear that 19 responsibility. 20 MR. POWELL: We give cards and, of course, 21 everyone in the jail is told not to talk to 22 anybody. They're all told not to talk to any law 23 enforcement officers. We have a bad problem with 24 the folks thinking that sheriffs are not law 25 enforcement. That includes the sheriff. KING COURT REPORTING SERVICE 88 1 When we have arraignment, when we get folks 2 at arraignment, we give everyone a -- what's known 3 as an information sheet at arraignment. We tell 4 them all of the dates that they must be in court, 5 telephone numbers, when we need to hear from them, 6 appropriate dress when they come to court because, 7 you know, everywhere you have folks showing up in 8 T-shirts and shorts and flip flops. 9 And so you have to tell them that. They 10 can't wear that to court and things of that 11 nature. 12 MR. DUBOSE: All right. And, Mark, thank 13 you very much for your presentation for being here 14 with us today. 15 MR. STRAUGHAN: All right. I appreciate it. 16 If I could, there is one point that I would like 17 to make. If y'all want to help get them in and 18 don't want to provide extra pay, if you can find a 19 way to get the state merit health insurance tied 20 in, whether they're contract or not, that would be 21 a good drawing card for people. 22 MS. DEVINE: What, the PD? 23 MR. STRAUGHAN: Yeah. It wouldn't cost a 24 whole bunch to get that in. 25 MR. DUBOSE: All right. Thank you. KING COURT REPORTING SERVICE 89 1 CHAIRMAN MORGAN: Thank you very much. 2 MR. DUBOSE: We'll move forward with Karen 3 Wilkes, who traveled from Rome to be with us 4 today, and she is a former public defender who 5 will share her perspective in that role. And 6 Karen, thank you for being here. 7 MS. WILKES: Thank you. It's my pleasure. 8 I brought a big suitcase full of stuff just to -- 9 I had to pull it all out last night to remind 10 myself. 11 I was a contract attorney in Floyd County 12 from August of '97 until about May of '99, close 13 to two years, and I have -- I have some certain 14 distinct differences from our previous speaker, 15 but let me begin by telling you this. 16 When I first went to Floyd County it was in 17 1990. There was no contract system. There was no 18 Public Defender, and we're our own circuit and so 19 Rome, we had three judges in Rome, and now we have 20 four, but every attorney in Rome was on the list. 21 If you had not been practicing more than 12 22 or 15 years you were on the list and at any point 23 in time you got a call from the court 24 administrator telling you that you were going to 25 represent so-and-so, and lawyers didn't like that. KING COURT REPORTING SERVICE 90 1 I don't really think that was a good plan. 2 If I were arrested and charged with 3 something I would not want to have a real estate 4 lawyer defending me. It's a specialty. People 5 that know criminal law keep up with it. They 6 change things every year. Whatever you learned in 7 law school eight years ago is not going to be 8 enough to represent somebody today. And so I was 9 pleased that they changed that system to the 10 contract system. 11 Also, with the early system there was a cap 12 on each case. Misdemeanor cases capped. You had 13 to turn in bills for every case. You got paid 14 when the case was over. $500 for every 15 misdemeanor. $1,000 for every felony. Whether 16 they went to trial, whether they pled, it didn't 17 matter. That was it. 18 They started the contract system in '96, I 19 believe, '95 or '96. They hired six contract 20 attorneys, two for each courtroom, and the 21 contract attorneys were designated permanently to 22 that particular courtroom, and so you didn't ever 23 have to worry about running back and forth between 24 judges. They also had two prosecutors for every 25 courtroom. KING COURT REPORTING SERVICE 91 1 MR. KURTZ: For every courtroom or do you 2 mean Superior Court? 3 MS. WILKES: Yes. We don't have a State 4 Court in Rome, and so we have a Superior Court and 5 that's it, Probate Court and Juvenile. 6 And so each judge had two prosecutors and 7 two contract attorneys. The original pay -- I 8 wasn't in on it the first year they did it. I 9 took over when one of the contract members was 10 hired at the Magistrate Court as an assistant 11 magistrate. 12 When I took that over in '97 the pay was 13 $2,500 a month. Flat fee. Didn't matter whether 14 you represented 100, one, went to trial, didn't go 15 to trial, it didn't matter, that was it. 16 And it went up during my tenure to $2,900 a 17 month, and then it went up again, I think it went 18 up to $3,200 a month. I think it's gone up since 19 then, but I'm not sure of the exact dollar amount. 20 As with the previous speaker, there is no 21 paperclips, no investigators, no expense money, no 22 nothing. And I'm a sole practitioner. It was up 23 to me. And after two years of doing this work it 24 wore me out. It wore me to a frazzle. 25 My particular judge -- and each judge sets KING COURT REPORTING SERVICE 92 1 their calendars differently, but the particular 2 judge that I was in front of scheduled two weeks 3 of felony jury trials every other month. On the 4 off months we had a week of misdemeanor trials, 5 and so every month you were going to do trial work 6 some time. 7 In addition, once a month we had non-jury 8 matters like probation revocations, bond hearings, 9 motions for a new trial, those types of things. 10 And once a month on Fridays we had arraignments. 11 I went through all of my calendars. I kept 12 them. And for a two-week jury trial calendar 13 the -- there were an average of 30 -- initially, 14 30 or 40 cases total. Not mine, but total on the 15 felony trial calendar for a two-week period, and 16 initially of that 30 or 40 I had four, six, 10. 17 The second year that I did this the numbers 18 went up on the two-week felony trial calendar to 19 anywhere from 40, to 60, 50, 70 on a two-week 20 calendar, and of those sometimes I had seven or 21 eight. Sometimes I had 20. On one of them I had 22 25 cases out of 72. 22 cases out of 51. 23 And so I had to show up to court on Monday 24 morning with an announcement of what I was going 25 to do in 25 cases, or 20 cases, and that's a KING COURT REPORTING SERVICE 93 1 pretty difficult task. I had no control over 2 which case was going to be called first. I didn't 3 know which one of these 20 I needed to tell the 4 witnesses to be there Monday to be ready. I 5 certainly couldn't Subpoena witnesses in 20 cases 6 and have them all show up to court on Monday 7 morning and they wait for further instruction. 8 It's not practical. It's inconvenient to the 9 witnesses, but I had no assistant to keep in 10 contact with these people. We paged them when 11 they're needed. 12 And so to me it was an unfair position to be 13 in because the DA knew which case they wanted to 14 try first and which ones they were prepared to go 15 forward with second, and third. If they had to 16 save one for the second week of trial because an 17 officer was on vacation. I didn't know any of 18 that. 19 I had to be there ready at the drop of a hat 20 to try one of 20 cases. Now that, I think, was 21 incredibly difficult. 22 MR. KELLER: Can I? 23 MS. WILKES: Sure. 24 MR. KELLER: Did you find out who -- did you 25 talk to the assistants and find out which ones KING COURT REPORTING SERVICE 94 1 they were? 2 MS. WILKES: I did and, fortunately, the 3 assistant DAs was on friendly terms with me and 4 did their best to say well, you know, these four 5 will more likely -- of these four we're going to 6 pick one of these to go first and more than likely 7 it will be this one, but it could be this one. 8 But there was never any sense of security in 9 that. It could all fall apart at the last minute. 10 And Monday I could say, oh, well do you remember 11 that? Never mind. You're up. 12 And so I couldn't rely on that. It was some 13 guidance, and it helped, but it was nothing solid 14 that I could say oh, judge, I'm not supposed to be 15 ready today. And I think a lot of the problem 16 with keeping up with that type of caseload is that 17 there is never any down time. 18 Every week you're scheduled for court for 19 something, and on the Friday arraignment calendars 20 I would be appointed to anywhere between five and 21 20 people, and so every Friday -- 22 JUDGE FULLER: I'm sorry. What would be the 23 distinct difference between a Public Defender 24 system and the appointment system that you 25 referenced earlier, the contract system in KING COURT REPORTING SERVICE 95 1 reference to what you perceive the difficulties 2 with the contract system? 3 MS. WILKES: Personally, I don't know that I 4 have a preference that one would be automatically 5 better than the other just because of the form, or 6 the institution. I think that the contract way 7 could work, but it can't work the way it's set up, 8 or at least not the way it's set up in Rome. 9 It was designed as a part-time job, and the 10 judges got approval from the County Commission for 11 a certain amount of funding. There were no -- you 12 didn't bid for the position. They said we have 13 six positions open. We're paying this much a 14 month. Anybody interested fill out an application 15 and we'll meet with them. 16 And the three judges hand picked each of the 17 six contract attorneys, but there was no bidding. 18 And I don't know that it would be any different 19 whether it was a Public Defender or whether it was 20 a contract, but I do know this; that it is not a 21 part-time job. Handling that type of a caseload 22 took every bit of time that you could possibly 23 muster, and the judges paid it as a part-time job, 24 but in reality it was a full-time job. 25 MR. KURTZ: During that two-year period of KING COURT REPORTING SERVICE 96 1 time did you have any other -- do you have outside 2 clients? 3 MS. WILKES: Sure. You know, I had been 4 practicing seven years before I took this 5 contract, and the problem is that over the 6 two-year period it dwindled away at my private 7 practice, and mostly it was partly because of 8 perception. And again, you know, these folks are 9 not the most sophisticated people. They don't 10 know the law, and people understood -- they 11 thought that this was all I did. 12 MR. KURTZ: The perception of a client, of 13 potential paying clients was don't go to Karen 14 because she works for -- she works for poor 15 people. 16 MS. WILKES: Yes, and I think that the 17 general public, including the folks that you 18 represent, think that that's all you do. They 19 didn't ask you. I had clients that I was 20 representing during the contract that went 21 somewhere else to get a divorce, or told their 22 mother to go somewhere else to get a divorce. 23 I did divorces. They didn't know that. And 24 the perception of it, some people quit calling, 25 and the reality of it is that if I'm scheduled for KING COURT REPORTING SERVICE 97 1 court every week in criminal cases they always 2 take precedence over civil cases. And if you ever 3 have two things scheduled at the same time on the 4 same day the criminal case always prevail. 5 And so I had divorce cases, and custody 6 cases, and child support cases pending for a year, 7 and every time they would get scheduled I had to 8 conflict out and have them rescheduled. And I 9 wouldn't be happy with that, especially people 10 that want to get divorced. They want a divorce. 11 And at the same time there was nothing that 12 I could do. I can't leave criminal court when I'm 13 responsible for a third of what was going on in 14 that courtroom and say sir, sorry, I have to go 15 and do a divorce. It was impossible. 16 MR. KURTZ: Is it your sense that -- and so 17 the person before you in the contract went to 18 become an assistant magistrate and so there was a 19 vacancy and it got advertised, or posted, or 20 somehow announced? 21 MS. WILKES: Yes. It was sort of word put 22 out in the courthouse. 23 MR. KURTZ: Any sense on your part that you 24 were one of the three, or five, or six, or eight 25 people who applied, or you were the only one? KING COURT REPORTING SERVICE 98 1 MS. WILKES: I'm not really sure about that. 2 There may have been another one or two that 3 applied. If my memory serves me, I think that's 4 the case. I don't think that's so now. Somebody 5 recently left and it took a long time for them to 6 get someone. Nobody locally would do it. Someone 7 from another county, maybe. Nobody locally would 8 do it, and the rest of the contract attorneys had 9 been in it from the beginning are still doing it. 10 And I think to myself well right now there 11 is no way we could get help and go back to a 12 regular practice. There are lawyers which that is 13 all they do and they probably lost a good bit of 14 their contracts. 15 And so I guess what I'm saying on this is I 16 don't think that the competency is bad, but I 17 think it's fair to say that this is a part-time 18 job that you can supplement your practice with. 19 I didn't see it happening that way. I don't 20 see that the other contract attorneys have time to 21 do anything other than keeping up with this 22 criminal caseload. 23 And if the state would fund the county a 24 certain amount if they want to have a contract 25 system, I don't have a problem with the system KING COURT REPORTING SERVICE 99 1 being a contract or Public Defender. I do have a 2 problem with, you know, you don't prosecute cases 3 part-time, and so I don't see how they can expect 4 me to take any cases part-time. 5 MR. KURTZ: It sounds like there are 6 differences in their contract system. It sounds 7 like the Rome system, the one you operated under, 8 is much more like a part-time Public Defender. I 9 mean, you were a state employee except they didn't 10 give you an office, and they didn't give you a 11 secretary, and they paid you an amount of money. 12 MR. TAYLOR: She's not a state employee. 13 MS. WILKES: No, I wasn't, but yes. 14 MR. KURTZ: I didn't mean to say state. I 15 mean a government employee. 16 MS. WILKES: And that's another thing. When 17 you have 50 pending things you're juggling, and I 18 file motions I want to send a copy to my client 19 who may be in jail or may be out of jail. 20 Well, you try sending copies of things to 21 people every week, or every two weeks. It costs 22 an enormouse amount of money, stationery, copy 23 paper or whatever, and I think that a majority of 24 the contract attorneys now don't do that, and 25 never have done it because it's expensive. But, KING COURT REPORTING SERVICE 100 1 meanwhile, their client in jail has no idea that 2 anything has been filed at all. They can't read 3 it. They don't know that the lawyer has done 4 anything. 5 And that, I think, is another problem that 6 the clients distrust you immediately. They think 7 you're part of the system. They think you're 8 working with the man and you're going to sell them 9 down the river, and I actually had one confront me 10 one time that said well, who pays you? Is it the 11 same people who pays the prosecutors and the 12 judges and the probation officers? And I said 13 well, yeah, sort of, but I'm different. Well, 14 yeah. They don't get that and I don't blame them. 15 And the other part, I think, is that 16 lawyering is counseling. I guess that's why they 17 call them counselors. I cannot walk in and meet 18 somebody for the first time sitting in jail and me 19 having read the police report, the warrant, talked 20 with the DA or whatever information I may have and 21 sit down and say well, bud, it looks like they got 22 you so I tell you what, why don't we work out a 23 deal for you for blah, blah, blah, blah. 24 That person will immediately reject that. 25 And it's the psychology of it. They don't want KING COURT REPORTING SERVICE 101 1 anybody coming in there and telling them you need 2 to plead guilty. I've already reviewed it all and 3 you can't win. You need to plead guilty. 4 They don't want to hear that, and it's no 5 wonder why they think everybody is working for the 6 man when the first time they meet with their 7 lawyer they say he said I ought to plead guilty. 8 Whether in the end they ought to plead 9 guilty or not I think that initially this person 10 needs to know that you're listening to them; that 11 you want to hear their side of it; that okay here 12 is what they're saying you did, what can you tell 13 me about that? And walk them through it most of 14 the time they will reach the conclusion on their 15 own. Well, yeah, I guess I did. 16 But if you don't go through that process 17 with them they distrust you. They think you're 18 just trying to cram a guilty plea down their 19 throat. And although I may know in the beginning 20 that that's what needs to be done and eventually 21 that probably is what's going to happen, I just 22 can't march in there and say that to them. 23 They need to know that at least I want to 24 hear their side of it. And do you have witnesses? 25 Okay. So you're saying he stabbed you first. KING COURT REPORTING SERVICE 102 1 Okay. Is there anybody that can tell me that he 2 stabbed you first? Or that you shot him after he 3 did this or this? 4 And when I finally get to the point with 5 them where I say okay, so how are you going to 6 explain that? They go oh, yeah. Well, okay. I 7 tell you what. See what you can do and we'll work 8 something out, but then they're happy. They're 9 willing. They have seen it for themselves. 10 They've reached the conclusion on their own -- 11 MS. DEVINE: And you can't pre-judge them. 12 MS. WILKES: And I don't think that it's 13 fair to deny them that understanding of why they 14 need to work something out with the District 15 Attorney. Not just because I think it's what they 16 need to do, or because I don't want to waste my 17 time trying the case, or I'm afraid they're going 18 to lose, but that on their own they can see that 19 they -- they may be able to explain everything 20 that they did except for one thing. When you get 21 right there and they go oh, okay. 22 And I think that's part of being a lawyer. 23 I think that when somebody hires you and pays you 24 they want to know why. Why are they charging me 25 with this? And what are my defenses? And what if KING COURT REPORTING SERVICE 103 1 he shot me first? Or what if he called me a name, 2 or he called my mother a whore or whatever. 3 And when they're paying you you tell them 4 well, this is what the law is, and it all started 5 back in England and blah, blah, blah. Okay. 6 Well, I don't see why indigent clients should be 7 denied explanation. And it's somewhat hand 8 holding, but at the same time they are much 9 happier clients when they feel like you're 10 listening to them; when you at least make an 11 effort to get their side of the story and just 12 don't come in there with all of your pre-drawn 13 conclusions. Well, the police report says blah, 14 blah, blah because I've never read a police report 15 that was accurate, and so I don't care what the 16 police report says. 17 I mean, I care in the sense that I want them 18 to know that this is what they're going to say 19 about you, but I don't assume that it's true. And 20 there were too many times that all of the 21 paperwork that I came up with, all of the warrant 22 information, police reports, and talking with the 23 DA, photographs of the victims were horrible that 24 my first reaction was oh, my God, this guy beat 25 the crap out of her and look at these pictures KING COURT REPORTING SERVICE 104 1 and, oh, he's guilty. 2 And yet after meeting with the client time 3 and time again and listening to him I realized 4 that it wasn't really so, and I took the time and 5 effort. I drove around in places in town that I 6 had no business being, with a pistol, trying to 7 find somebody that my client only knew by first 8 name. They don't live anywhere. They just sort 9 of hang out at their grandma's, or their aunt's, 10 or they live in the street. 11 And I went with a pistol looking for these 12 people because I was terrified of what might 13 happen to me while I'm in these areas alone, but I 14 found witnesses that way. 15 I mean, one particular client that I'm 16 thinking of is my initial reaction was you're 17 guilty. Forget it. They wouldn't even agree to a 18 reasonable bond. The judge wouldn't grant the guy 19 a bond because the photographs were so bad that he 20 had beat his girlfriend, and that they had charged 21 him with rape, kidnapping, false imprisonment, 22 aggravated assault, and in the end the jury 23 acquitted this man of everything except for a 24 charge of battery and misdemeanor charge. 25 He sat in jail a year before we had the KING COURT REPORTING SERVICE 105 1 trial and when he got convicted of misdemeanor 2 battery he got a sentence of 12 months, which he 3 had already served. 4 And had I not listened to this man and taken 5 what he said and done something with it I would 6 have just said oh, yeah. Look at the pictures. 7 You did it. He would be in jail for life probably 8 because of those horrible charges, you know? 9 And -- 10 MS. DEVINE: So you did not have an 11 investigator as a part of your -- 12 MS. WILKES: No. No. I am a sole 13 practitioner, and I mean that is it. Me. I don't 14 even have a secretary now, you know? But -- 15 MR. DUBOSE: Do you ever apply to the judge 16 for investigative fees? 17 MS. WILKES: No. I inquired about it and 18 was nicely told that no, that was what they were 19 paying the contract people. Well, and the other 20 thing, as a practical matter, I don't know if 21 anybody in here has ever practiced criminal law. 22 It's a strange animal. It's very volatile, and 23 it's going into a case so in the dark compared to 24 civil practice. 25 You know, I have friends that do all of this KING COURT REPORTING SERVICE 106 1 nice clean civil law and they have six months of 2 discovery. You know, you can ask for every 3 document and take depositions of every witness and 4 make everybody disclose everything and you have 5 six months. Well, in six months this case has 6 come and gone. 7 And they've changed some of the discovery 8 laws and now I get all kinds of stuff from the DA 9 but 10 days before trial. I'd better be prepared 10 on my own because if I get something 10 days 11 before trial what am I going to do with that? It 12 hardly gives you time to do anything. 13 And so I think that -- and people that get 14 involved in criminal law, their clients, well 15 can't we take your deposition? No. 16 You know, the only opportunity you have to 17 get a statement under oath from an arresting 18 officer is if you can have a preliminary hearing. 19 And you can only have that if your guy is still in 20 jail and not indicted. 21 Well, who wants to stick around in jail just 22 to get a preliminary hearing? But it's the only 23 opportunity, and I've explained that to many 24 clients and some of them have stayed in jail long 25 enough to have a preliminary hearing. Some of KING COURT REPORTING SERVICE 107 1 them have said I don't care. I want out. And I 2 don't blame them. 3 But let me just tell you this: When I get 4 handed a file, when I did get handed a file in 5 this contract system I got handed a piece of 6 paper. One piece of paper with the person's name, 7 address, Social Security number, birthdate, 8 whatever and a list of the charges. That's it. 9 I had to get the police report. I had to 10 get the warrant. I had to find out who the 11 witnesses were. I had to go and talk to this 12 person. I had to talk to their witnesses. I had 13 to do everything. 14 When the DA is handed the file it has a 15 police report, it has a warrant in it, it 16 generally has notes from where one of their 17 investigators had met with the witnesses and have 18 spoken to them and taken notes of what they have 19 to say, and so-and-so already sent something off 20 to the crime lab and is waiting for something to 21 come back. 22 The DA can try a case in 20 minutes having 23 been handed a file that they've never seen before 24 because everything has already been done for them 25 and that's not the way that it works in our KING COURT REPORTING SERVICE 108 1 contract system and, you know, we started off at 2 such a disadvantage that it took enormouse effort 3 just to get to the beginning where the DA is. 4 And I didn't think that was fair. I still 5 don't think that is fair. I've rallied everybody. 6 And I was the most vocal, I'm sure that doesn't 7 surprise any of you, and the most vigorous member 8 of the contract team and I would rally everybody 9 and we'd go and meet with the judge and I would 10 complain, you know, this isn't fair. Why can't 11 somebody send me a copy of the warrant or the 12 police report? You know, the DA gets it. 13 And after all of my griping and complaining, 14 you know, no, there weren't going to hire any 15 investigators, they weren't going to give me any 16 extra funds for investigators, but I tell you 17 what, in addition to your piece of paper we'll 18 send you a copy of the warrant. Whew, hoo. 19 And so after all of the effort and 20 everything that I went through that was all? And 21 at that point I really was frustrated and I 22 thought well they really don't care that we're 23 starting off with such a handicap. And they don't 24 want us to start off equally balanced; that 25 somebody might win. KING COURT REPORTING SERVICE 109 1 And I know those are, you know, sort of 2 leftist thoughts, but I couldn't help but think 3 that. You know, how could they justify giving the 4 attorney just a piece of paper. 5 The District Attorneys are not walking 6 around somewhere that they don't need to be at 7 night with a pistol looking for people with names 8 like, you know, Joe, or Joe Schmoe, or Boo. You 9 know, These people don't even have names. My 10 clients came in and told me their name. They 11 said, well everybody calls him Joogie. You know, 12 that doesn't help. 13 And so the District Attorney's office has 14 three full-time investigators in their office. We 15 have zero. And, I mean, in addition to their 16 investigators they've got the entire city police, 17 the entire county police and, you know, connected 18 with the GBI, and everybody is there to do their 19 bidding. 20 The DA wants to interview a witness and the 21 witness is in jail the DA calls the sheriff and 22 says how about bringing old what's his name over 23 here and let me talk to him? Do I get that? No. 24 I have to go stand around at the jail and wait for 25 some uninspired jailer to drag themselves all of KING COURT REPORTING SERVICE 110 1 the way to the pits of the jail and bring this 2 person up. 3 And, you know, if I have to meet with four 4 and five people you're talking about sitting at 5 the jail for six hours. And it's exhausting, 6 needless to say. 7 JUDGE FULLER: May I ask you a question? 8 MS. WILKES: Yes. 9 JUDGE FULLER: If I'm arrested today in Rome 10 and I do not make bond, when will I get a criminal 11 hearing? 12 MS. WILKES: The way it's operated in Rome? 13 Sometimes it's necessary to stay in there and get 14 you one. 15 JUDGE FULLER: You'd probably never get one. 16 MS. WILKES: When a person is put in jail 17 they're supposed to be provided a form put out by 18 the jail requesting an attorney. The jail submits 19 that form to the court administrator generally the 20 next day. The court administrator waits 10 days 21 before appointing an attorney for that person. If 22 at the end of those 10 days the person is still in 23 jail an attorney is appointed. 24 The form is then -- that's my sheet that I 25 get. It's then sent to the particular appointed KING COURT REPORTING SERVICE 111 1 attorney, and so you theoretically and very 2 commonly are in jail 14 days before an attorney 3 even knows you exist. 4 MR. KELLER: Okay. Do you have to request a 5 preliminary hearing? 6 MS. WILKES: Absolutely. 7 MR. KELLER: Okay. So you have to request? 8 MS. WILKES: Absolutely. Yes. And I think 9 that system is horrible, sitting in jail 14 days 10 not knowing, you know, anything. It's just 11 frightful to think of it and yet there are a lot 12 of hardened criminals that 10 days in jail there 13 isn't a lot for them, but there are a lot of 14 people that have never been in jail. 15 MR. KELLER: If I'm arrested and can afford 16 an attorney and I call, or my brother calls you 17 the day I'm arrested and tells you that I'm in 18 jail, how long will it be before you can get a 19 preliminary hearing? 20 MS. WILKES: Well, again, from the time that 21 I file a motion for a preliminary hearing it's 22 easily two weeks before it will be held. 23 MR. KELLER: Okay. And this isn't a trick 24 question, but my point is whether I'm appointed -- 25 I mean, whether I have been retained or appointed, KING COURT REPORTING SERVICE 112 1 is there a difference between when I get a 2 preliminary hearing? 3 MS. WILKES: Yes, because if you're arrested 4 today and your brother shows up in my office with 5 money I will immediately file a motion for a 6 preliminary hearing and in two weeks you should 7 have it. 8 If you don't have money and you don't have a 9 brother and you're stuck in jail and 10 days after 10 you're sitting there someone gets appointed to you 11 a few days later, the lawyer finds out and may 12 come out and speak with you. Sometimes I just 13 automatically file a motion for a preliminary 14 hearing as soon as I find out that I was 15 representing somebody. 16 MR. KURTZ: That's an extra two weeks. 17 MS. WILKES: But then there is another two 18 week waiting, and so you're talking about a month 19 for your preliminary hearing appointment, two 20 weeks if you're retained. 21 MR. KELLER: Can you give me any other 22 differences between the time of the appointed and 23 the retained attorney other than the preliminary 24 hearing that you can see? 25 MS. WILKES: Yeah. The other thing about it KING COURT REPORTING SERVICE 113 1 is what I was thinking. If you're one of the 2 folks that gets out of jail within 10 days, even 3 if you fill out an application and you got out of 4 jail, if you bond out in those 10 days the court 5 administrator just throws your application in the 6 trash can and you don't get an appointed attorney. 7 MR. KELLER: Can you re-apply? 8 MS. WILKES: Yes, unless you go back in 9 person or call the court administrator's office 10 when you get out of jail and go in there and fill 11 out whatever, because anybody in jail will 12 automatically qualify, and they don't have to fill 13 out anything about their income and all. 14 But if you're in jail you automatically 15 qualify, but if you're out of jail you have to go 16 to the court administrator and you have to fill 17 out an application, they have to review it and see 18 whether you fall into the low income part to 19 qualify. 20 MR. KELLER: But you're saying that if I 21 filled out one, but then my brother took the money 22 instead of paying you and got me out of jail, 23 which he should have done, he got me out of jail, 24 and my application was pending and you're saying 25 that's thrown away? KING COURT REPORTING SERVICE 114 1 MS. WILKES: Thrown into the trash can. 2 Thrown into the trash can. And, unfortunately, 3 you know, and maybe that wouldn't be so bad if 4 there would be somebody to tell these people hey, 5 you need to -- if you get out of jail you need to 6 follow up by contacting the court administrator. 7 I don't know how any of them would know what 8 a court administrator is much less that that's the 9 person that you need to speak with about applying 10 for an appointed attorney. And without any 11 direction or instruction they figure they've got a 12 conviction, but they don't. 13 And it may take four months to six months 14 for indictment in Floyd County. Now, you know, if 15 you're talking misdemeanor stuff and things that 16 can be accused rather than indicted, three months, 17 four months, but, you know, for those six months, 18 four months, three months, however long it is that 19 this person is out of jail waiting for an 20 indictment to be issued, that's the longest period 21 of time I ever had to work on somebody's case, and 22 that's the very time I had no -- I wasn't 23 appointed. I didn't know this person existed. I 24 wasn't appointed to this person at that time. And 25 all of those months passing I could have been KING COURT REPORTING SERVICE 115 1 doing something. They wait until the arraignment. 2 They come to arraignment and they ask for an 3 appointed attorney and you're appointed on the 4 spot. 5 MR. KELLER: And you still have all of the 6 motions that you need to file? 7 MS. WILKES: Yes. The judge's were more 8 than accommodating for the appointed counsel and 9 many have gave them 10 extra days if you were 10 appointed at arraignment to file the necessary 11 motion. 12 MR. KELLER: But from arraignment to your 13 trial -- 14 MS. WILKES: From arraignment to trial 15 you're talking a month. That's very little time 16 when I could have had six months to be out 17 tracking down these people with my pistol, you 18 know? 19 I think that a month's time is -- and we're 20 not talking just one felony trial, you're talking 21 getting ready for 15 and 20 felony trials in a 22 month period, and in between having to be in court 23 every other day or, you know, a week here, or a 24 couple days her here. 25 MR. DUBOSE: Karen. KING COURT REPORTING SERVICE 116 1 MS. WILKES: Yes. 2 MR. DUBOSE: I hate to interrupt you. We 3 have Jerry Word here, and Jim has agreed to extend 4 the public meeting today to 12:15, and Jerry is 5 going to try to get everything in that he has to 6 say by 12:15, but we have also agreed to extend 7 him the courtesy of coming back if he doesn't 8 finish today. 9 But, Jerry, if you can come up. 10 MR. KURTZ: Thank you, Karen. 11 MS. WILKES: Thank you very much. 12 MR. KURTZ: And I want the Commission to 13 know that Karen is a graduate of University of 14 Georgia law school, and I've known Karen since -- 15 her father is also a colleague of mine on the 16 alumni. I have known Karen a lot of years. She 17 was always verbal, but she was a lot shorter. 18 MR. DUBOSE: Karen, thank you very much, and 19 Jerry Word from Carrollton. Jerry. 20 MR. WORK: I want to just -- I've got a 21 short period of time, and I'm long-winded and so I 22 may need to come back. 23 But I'm Jerry Word from Carrollton. I've 24 been practicing law for 26 years now. I started 25 out with the old appointed system and I was one of KING COURT REPORTING SERVICE 117 1 the few lawyers that was begging for appointment, 2 and it was one of those things where you stood in 3 line and said give me the next case. And so I've 4 been through that system for a number of years. 5 Finally, in 1989 the judge sought out my 6 firm to see if we would take on a contract 7 defender position with the county mainly because 8 the county's role -- the lawyer's role in the 9 county was if you've been practicing under 10 10 years you got appointed to the cases. If you had 11 more than 10 years experience you were off the 12 list. 13 And the Tysinger firm, which is the largest 14 firm in town, had all of the lawyers under ten 15 years, so they were getting all of the 16 appointments, and so it became politically 17 expedient to come up with a contract defender 18 program. 19 My firm became the contract defender and did 20 it about five years, and it got to be a little 21 problem because we're having to appoint so many 22 outside attorneys to handle the case, at least at 23 that moment, as we got multiple defendants and all 24 of that. 25 I got back in the contract defender business KING COURT REPORTING SERVICE 118 1 a couple of years ago, and when the judge again 2 sought me out and my law partner and I had 50 3 percent of the contract. Three other firms are 4 involved. One lawyer has a fourth of the 5 contract, one lawyer has an eighth of the 6 contract, a fifth lawyer has an eighth of the 7 contract, but also has a State Court contract. 8 The juvenile court contract is separately, 9 actually handled on an appointment basis with a 10 panel of attorneys, and so I handle only felony 11 cases. 12 I was going to get the caseloads for you 13 but, unfortunately, our indigent defense 14 administrator was sick yesterday and so I couldn't 15 get you those numbers, but I estimate that I 16 received around 125 to 150 appointments a year. 17 Now, a lot of those will be probation 18 revocations or things like that that will never 19 get to trial. I probably handle about an average 20 of eight to 10 trials a year. About 50 percent of 21 my practice is paid, and so of those eight to 10 22 trials probably half of them will be appointed 23 cases. 24 We have four terms of court a year and two 25 regularly scheduled trial weeks each term, and so KING COURT REPORTING SERVICE 119 1 eight regularly scheduled trial weeks a year. 2 The main thing that I want to talk about is 3 we worked hard to tweak the contract defender 4 system in Carroll County, and it's not perfect. 5 It's still got a ways to go, but we've done some 6 things that I think will help. 7 One is to divide the contract among a number 8 of firms and the judges in our county. The county 9 basically tried to let it out to the lowest bid 10 and the judges vetoed that and said we will not 11 accept certain lawyers just because they bid the 12 lowest bid, and it got to be a source of 13 controversy, but they vetoed that and basically 14 said we're going to let the tripartite committee 15 select the lawyers, but the judge is going to have 16 the absolute say if he feels somebody is 17 incompetent, not capable of carrying the workload 18 for whatever reason, he will exercise veto power. 19 The one thing that we have had is the judges 20 have gone to bat for us for several things that I 21 think are extremely important, whether you're a 22 contract defender or a public defender, which I've 23 never been a public defender, and that is we have 24 an indigent defense administrator who is a 25 full-time salaried employee by the county and her KING COURT REPORTING SERVICE 120 1 entire job is indigent defense. Not court 2 administration, but indigent defense, and that's 3 important because she goes to the commitment 4 hearings -- well, first appearance actually is her 5 first involvement with the system. 6 She attends most of the first appearances. 7 Though she doesn't attend she gets report on and 8 if a person appears at a first appearance and then 9 asks for a lawyer they are immediately allowed to 10 fill out a form requesting a lawyer. 11 First appearances are held the same day of 12 the week in our county by the magistrate and so 13 your first opportunity to request a lawyer is 14 usually within less than 48 hours of being 15 arrested. 16 Once the indigent defense administrator gets 17 that form then she takes it on herself to schedule 18 the preliminary hearings for those that are still 19 in court, I mean, still in jail so that the 20 preliminary hearing delay is not, you know, two 21 weeks or four weeks, it's immediately if this 22 person is still in jail and they were not granted 23 a bond by the Magistrate Court for whatever 24 reason, then they are scheduled for the 25 preliminary hearing. KING COURT REPORTING SERVICE 121 1 She also immediately appoints a lawyer to 2 the person so that they have a lawyer by the time 3 of preliminary hearing, and I think that's been 4 critical in our process and it's taken us 10 years 5 to evolve to that, but it's important that we have 6 a lawyer involved at the time you get the best 7 discovery and the precious discovery at the 8 preliminary hearing stage. 9 And the lawyers that are handling this 10 contract pretty much try to attend all, you know, 11 preliminary hearings or have some other lawyer 12 cover for them so that everybody that wants a 13 lawyer is represented by counsel at that first 14 opportunity to deal with the system. 15 I share what everybody has said about the 16 parity of resources. You know, I think finding 17 dedicated and dependable lawyers, whether you've 18 got a public defender system or a contract system 19 is critical, but giving those lawyers the 20 resources. 21 The other thing that we fought hard for was 22 an investigator. We fought hard for an 23 investigator, but that was a big step. Our county 24 has funded us a part-time investigator. She's 25 paid $30,000 a year and she serves as an KING COURT REPORTING SERVICE 122 1 investigator for all five lawyers. 2 And so, basically, while the District 3 Attorney has their own investigator and the police 4 staff, we have an investigator. But that's been 5 real critical, but unlike my colleagues, I'm up at 6 midnight in the back woods of Heard County, 7 Georgia, tracking down witnesses, and that has to 8 do with the dedicated defenders. 9 You've got to have the dedicated defenders, 10 but if you don't have the resources and the time 11 then you can't do your job, and so I think that 12 whether you go to a public defender system, or you 13 go to a contract defender system, or you allow a 14 hybrid of the two you've got to see to it that 15 there is early intervention by somebody who is not 16 only going to be at the initial appearances, but 17 has got enough training and background to say 18 okay, this person needs a preliminary hearing, 19 this person needs a bond motion. 20 Our indigent defense administrator will 21 actually call up and say do you want me to go 22 ahead and file your bond motion because this is a 23 bond belonging by the Superior Court. 24 And so it's not unusual for us to have a 25 preliminary hearing one day and the bond motion is KING COURT REPORTING SERVICE 123 1 already scheduled for two days later because the 2 indigent defense administrator has taken it on 3 herself to, you know, call up the lawyer and say 4 this is something that I think needs to be done. 5 And so early intervention, I think, is 6 critical, and that requires resources. That 7 requires a dedicated person who is not the court 8 administrator but the indigent defense administer, 9 which I really think that's what the Indigent 10 Defense Act calls for, but it's so seldom seen. 11 The investigator, I think, is the other 12 critical thing that you've got to have. And that 13 investigator has to be around enough that he or 14 she has time to work on not just my cases, but 15 everybody's cases because like my other colleagues 16 so often, you know, we're behind in the ballgame. 17 The police have investigated it for two 18 months before they've issued any arrest warrants, 19 and by the time we get notified of the case the 20 witnesses have all been talked to and tainted and 21 so it's important that you get out there as 22 quickly as you can. 23 And those parity of resources, as far as 24 investigators, I think are extremely critical. 25 I'd rather have another investigator in my office KING COURT REPORTING SERVICE 124 1 than another lawyer at this point because they can 2 only try so many cases at a time but, you know, 3 they can throw a bunch at you. 4 And so I think that's been critical in our 5 contract defender system is getting at least some 6 access to an investigator, but I think as you go 7 to a state-wide system whatever it might be that 8 that's going to be one of the most critical 9 points. 10 Things like Phyllis you've asked a lot about 11 Hispanic interpreters and, you know, when I first 12 started practicing law my greatest investigator 13 was a guy named Tootie Pie, and Tootie Pie was a 14 client of mine who knew everybody in the black 15 community and if I needed a client -- I actually 16 had better resources than the police until he died 17 of a stroke one day, which messed up my 18 investigation, but he went to the people and he 19 brought them to my office, but those days are 20 gone. 21 MS. DEVINE: How do you spell that? 22 MR. WORD: But those things are critical but 23 Hispanics so often they bring a friend with them 24 who speaks broken English and so we have to try to 25 bring investigators, but when you get to court we KING COURT REPORTING SERVICE 125 1 try to have a certified interpreter, but so often 2 it's hunt here, or go to the college and get a 3 professor, or the few business people in town that 4 have ties to Latin America that will come an 5 haphazardly. 6 MR. TAYLOR: I think all of them are 7 familiar with the problems. No doubt about that. 8 I would like to know what is your recommendation 9 how it will be implemented, how it is going, who 10 is going to supervise it, No. 3, who is going to 11 make the appointments of the attorneys who are 12 going to be handling the cases in the 159 counties 13 in Georgia, who is going to control that, who is 14 going to oversee the education of each of those, 15 and who is going to determine whether or not they 16 are content. Should it roll out of Atlanta or 17 what? 18 MR. WORD: And I've got 10 minutes to do 19 that? 20 MR. TAYLOR: Eight. Eight minutes. 21 MR. WORD: I think there are a number of 22 systems in this state, public defender and 23 contract systems that are working very good, but 24 as far as uniformity is concerned it's real 25 difficult to obtain any kind of uniformity with a KING COURT REPORTING SERVICE 126 1 contract system here and a public defender system 2 there. 3 Wilson and I have had this conversation 4 before. I don't know if we will ever sell to a 5 lot of counties a public defender system, but I 6 think a way to enjoy uniformity is a public 7 defender system. It needs to be handled on a 8 local basis just from the standpoint of public 9 acceptance, but it needs to be supervised by some 10 agency whether it be the Georgia Indigent Defense 11 Council, of which I'm a council member and so I 12 have an interest there, but we have no teeth in 13 the indigent defense counsel. 14 We can't go into a county and say your 15 system isn't working. I really see it more if you 16 want to implement a hybrid you come up with a 17 public defender or a contract defender; that you 18 need somebody who has some policing powers to come 19 in and say your system isn't working. 20 MR. TAYLOR: Who? 21 MR. WORD: The Indigent Defense Council or 22 somebody because I don't think, you know, as well 23 meaning as I think the judges all are, I don't 24 think that they're in the -- always in the 25 position to say this system needs changing because KING COURT REPORTING SERVICE 127 1 they have to go to the county commissioners, they 2 have to go to the other judges in the circuit. 3 We've got a judge in our county who is very 4 independent. He does not insist that bills be 5 approved by him. I approve the bills. I'm the 6 head of the tripartite committee and so I approve 7 all bills. 8 If there is interpreters that need to be 9 paid for, I sign off on them until it gets to be 10 major expenses and then the judge signs off on 11 them, but that's not the case in most counties. 12 You've got so many politics involved that some of 13 the things are handled on a case-by-case basis 14 without some type of supervision by an agency or 15 GIDC or some agency. Or you provide early 16 intervention, or provide an independent counsel 17 who are actually going out and seeing their 18 clients on a regular basis. 19 MR. TAYLOR: How are they going to know that 20 if they're sitting up there in 159 counties? 21 MR. WORD: I don't think they can. 22 MR. TAYLOR: Theoretically it's not as 23 practical. 24 MR. WORD: It's got to be a system where 25 you've got people that are actually paid and go KING COURT REPORTING SERVICE 128 1 out and monitor the system. That's all I know to 2 do. You know, we monitor ours locally because 3 we've got people who are dedicated. And a lot of 4 other counties do, too. Who are dedicated to 5 indigent defense. 6 I talked to lawyers at a meeting last summer 7 as to why I got into indigent defense. I like to 8 be readily trained, and this is the only legal way 9 that I could figure out how to do it. Most people 10 don't like to do it, but you've got to depend on 11 local people. 12 MS. DEVINE: Does your local tripartite 13 committee govern your system in Carroll County? 14 MR. WORD: Not really. I pretty well govern 15 our system in Carroll County. As the tripartite 16 chairman, we meet when we need to meet and make a 17 decision, but it's pretty much the judge and I 18 there, we meet and make the decision because I've 19 spent 26 years building a relationship with the 20 Superior Court judges and I'm the one most 21 involved in indigent defense. 22 MR. KELLER: Jerry, what you were talking 23 about as far as the indigent defense 24 administrator, that's Carroll County? 25 MR. WORD: That's Carroll County. We just KING COURT REPORTING SERVICE 129 1 handle one county, and that's Carroll County, and 2 this lady is a county employee whose sole job is 3 administrate indigent defense. She started out as 4 a part-time employee -- 5 MR. KELLER: Can I? And the other three 6 counties in that circuit, do they have the same 7 situation? 8 MR. WORD: No. Every county is different. 9 Of course, Coweta County is now changing to a 10 public defender system. They had a contract 11 defender system. Troop County has a public 12 defender and they have a court administrator who 13 handles that in Troop County. 14 I actually served as their public defender 15 for one year at their request. They grab whatever 16 lawyer they can grab to come down and handle their 17 caseload for as long as they can get them to stay 18 and they have the -- the clerk of court handles 19 the appointment of counsel. 20 You may get an appointment the day of 21 arraignment. You may get one after arraignment 22 when they say oh, yeah, we've got to tell you 23 about Joe Blow. I don't go to Meriwether County 24 and so I'm not sure what they do there. 25 MR. KURTZ: And you're a year-to-year KING COURT REPORTING SERVICE 130 1 contract? 2 MR. WORD: It's theoretically an every two 3 year contract. I don't think we have had a 4 written contract with the county for as long as I 5 can remember, but we go in on a yearly basis and 6 fight about budget. Usually the Superior Court 7 judge does, of course. You know, we request a 8 budget, the judge goes and fights for it, we may 9 go and speak on our own behalf. 10 MR. KURTZ: And so you're the head of the 11 tripartite commission and isn't that the body 12 that's supposed to contract with -- 13 MR. WORD: Right. And the first thing is to 14 call Mike Shapiro and say can I go back? Because 15 I actually became the head after I became the 16 public defender initially and I called Mike and 17 said this is a problem here. 18 MR. TAYLOR: How many death penalty cases 19 have you handled? 20 MR. WORD: I've handled eight death penalty 21 cases. 22 MR. TAYLOR: And those are outside of your 23 contract? 24 MR. WORD: That's right. 25 CHAIRMAN MORGAN: Is it $100 an hour? KING COURT REPORTING SERVICE 131 1 MR. WORD: We're paid at $100 an hour. 2 MR. TAYLOR: Plus expenses? 3 MR. WORD: Plus expenses, and we're allowed 4 to bill staff sometime at $100 an hour. 5 MR. KURTZ: Is there an open invitation to 6 bidding for the contract? 7 MR. WORD: Well, it's an open invitation to 8 bidding, but the Judges have said to the county 9 commissioners if you're looking for the lowest 10 bidder it isn't going to happen, and he's 11 satisfied with the defenders that he has right 12 now, and so there really hasn't been any attempt 13 to bid on it probably in the last tea years, and 14 so it's one of those how the nice conflict between 15 the commission and the judge where he said you 16 approved the money but I am going to approved the 17 lawyers. 18 MR. KURTZ: What is your present rate of 19 compensation? 20 MR. POWELL: I get paid $62,500 for 21 one-fourth of the felony contract. The State 22 Court defender is paid, I think, $30,000 for the 23 State Court. 24 MR. TAYLOR: 64 times four? 25 MR. KURTZ: 250? KING COURT REPORTING SERVICE 132 1 MR. WORD: I think they pay roughly $250,000 2 for the contract defender and then they have the 3 outside panel of conflict attorneys. Last year I 4 think they paid probably less than $50,000. 5 MR. TAYLOR: Plus any death penalty costs? 6 MR. WORD: Right. Plus death penalty costs. 7 MR. KURTZ: And how does that relate to your 8 total gross income portion. 9 MR. WORD: From my firm -- well, my partner 10 has a portion of the contract, also, and so we 11 actually receive a $125,000 a year from the 12 county. That probably is about a fourth of our -- 13 a fourth to a third of our income. 14 MR. KURTZ: And how will you estimate the 15 criminal work as a percentage or at least the 16 indigent criminal work as a percentage of the 17 business? 18 MR. WORD: Mine is about 50/50. The other 19 lawyer's is about closer to about 70/30 because 20 I've been around longer and have a lot of paying 21 clients. 22 MR. KURTZ: 70/30 indigent to paying? 23 MR. WORD: Indigent to paying, and I will 24 say probably our indigent versus paying 25 county-wide is probably 60 to 70 percent are KING COURT REPORTING SERVICE 133 1 indigent. 2 MR. KURTZ: And so that sounds like it's 3 consistent with what you were saying, it's a much 4 lower income? 5 MR. STRAUGHAN: Yes. 6 MR. WORD: Yes. 7 MR. TAYLOR: Jerry, the thing that bothers 8 me, and how do y'all handle this? There is a gap 9 between the amount of money that the person is 10 declared to be indigent. They're indigent, what, 11 $12,000 a year poverty level in Georgia, and 12 someone who is indigent zero. And then there is 13 those other people who make $40,000, $50,000 a 14 year. There is no question that they can hire a 15 lawyer. 16 But it's those people from the $12,000 to 17 the $30,000 a year. They're charged with a 18 murder, or a rape, or an armed robbery or 19 something. There is no way that they can go and 20 pay $10,000 to a lawyer, and they come into court 21 and they don't have a lawyer, they don't qualify, 22 and so here is the judge that's stuck with the 23 problem. 24 Are you going to try a man without a lawyer 25 because he doesn't qualify, the county and the KING COURT REPORTING SERVICE 134 1 state guidelines have been met, or are you going 2 to appoint a lawyer, or are you going to keep 3 telling him to go and get a lawyer? 4 MR. WORD: Well, and I think that is a 5 problem in our county, too, because we have 6 situations where the judge will say are you going 7 to hire a lawyer? Or come back on such and such a 8 day with your lawyer. And he says I don't qualify 9 for an appointed lawyer, and the judge says well 10 if you don't qualify then go hire you one. 11 That goes on for a period of time. At some 12 point the judge in our circuit will eventually say 13 that's enough. I'm going to appoint a lawyer to 14 represent you. And depending on the judge some 15 are real quick to do that and others are a little 16 bit slow to do it, but eventually they will end up 17 with a public defender. It's just a matter of 18 whether they get them quickly. 19 And, of course, if they're in jail they're 20 going to get one if they are in jail. They are 21 indigent and they will have one if they're in 22 jail. 23 MR. DUBOSE: Jerry, thank you very much for 24 being with us. I want to thank Jerry, and Mark, 25 and Drew, and Karen. Each one had to travel a KING COURT REPORTING SERVICE 135 1 long way to be with us today and each one 2 contributed very much to our deliberations. Thank 3 you. 4 (Applause.) 5 CHAIRMAN MORGAN: Okay. Thank you, Wilson, 6 for your help with today's program. I would also 7 like to thank Bill Ide and the Long, Aldridge firm 8 for hosting us. Reminder for those of you who 9 came in later. At 3:30 today the reporter on the 10 Commission, Mr. Kurtz, Professor Kurtz, is going 11 to be addressing the Georgia State legislature 12 about these issues, and that's going to be at 3:30 13 in the Legislative Building. And our next session 14 will be on Friday, March 22nd. It will be at the 15 Supreme Court. 16 If there is no further business, we're 17 adjourned. Thank you for your attention. 18 19 (Hearing conclude at 12:16 p.m.) 20 21 22 23 24 25 KING COURT REPORTING SERVICE 136 1 C E R T I F I C A T E 2 3 I hereby certify that the foregoing 4 transcript was taken down, as stated in the 5 caption; that the colloquies, questions and answers 6 thereto were reduced to typewriting under my direction; 7 and that the transcript is a true, correct and complete 8 record of the evidence given. 9 The above certification is expressly 10 withdrawn and denied upon the disassembly or 11 photocopying of the foregoing transcript, unless said 12 disassembly or photocopying is done under the auspices 13 of King Court Reporting Service, and the signature and 14 original seal is attached thereto. 15 I further certify that I am not a relative 16 or employee or attorney of any party, nor am I in any 17 way interested in the result of said case. 18 Pursuant to Article 8.B. of the Rules and 19 Regulations of the Board of Court Reporting of the 20 Judicial Council of Georgia and OCGA 15-14-37 (a) and 21 (b), written disclosure was presented. 22 This, the 25th day of April, 2002. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE