1 1 2 SUPREME COURT COMMISSION ON INDIGENT DEFENSE 3 4 5 6 7 MARCH 22, 2002 8 9:30 a.m. 9 10 11 12 13 Supreme Court of Georgia Judicial Conference Room 14 244 Washington Street Atlanta, Georgia 30334 15 16 17 18 19 20 REPORTED BY: DIANE KING, CSR, B-1957 21 22 23 KING COURT REPORTING SERVICE 125 COLONADE AVENUE, SUITE 1-B 24 ATLANTA, GEORGIA 30331 (404) 344-6225 25 2 1 MEMBERS PRESENT: 2 PROFESSOR PAUL KURTZ, Acting Chairman 3 MS. PHYLLIS HOLMEN MR. JERRY GRIFFIN 4 JUDGE LAWTON STEPHENS JUDGE C. ANDREW FULLER 5 REPRESENTATIVE PAUL HOLMES MS. FLORA DEVINE 6 MR. C. WILSON DUBOSE MR. CHARLES T. LESTER, JR. 7 MR. WILLIAM IDE JUDGE A. HARRIS ADAMS 8 JUDGE STANLEY F. BIRCH MR. ROBERT E. KELLER 9 MR. HOWARD O. HUNTER 10 GUESTS PRESENT: 11 MR. JAY B. MARTIN, AOC MR. MICHAEL C. KENDRICK, AOC 12 MS. KENDALL BUTTERWORTH, BELLSOUTH MS. JULIE COOK, BELLSOUTH 13 MS. EMILY KOPP, GEORGIA PUBLIC RADIO MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN 14 RIGHTS JUSTICE CAROL HUNSTEIN, GEORGIA SUPREME COURT 15 MS. SARA TOTONCHI MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN 16 RIGHTS MS. HANNA LIEBMAN DERSHOWITZ 17 MS. DEBRA BLUM MS. GINNY LOONEY 18 MR. MICHAEL B. SHAPIRO, GIDC 19 PRESENTATION: 20 COUNSEL FOR INDIGENT CRIMINAL DEFENDANTS 21 MR. ROBERT SURRENCY, CONTRACT DEFENDER, GREENE COUNTY 22 INDIGENT DEFENSE STANDARDS 23 MR. NORMAN LEFSTEIN, DEAN AND PROFESSOR OF LAW, 24 INDIANA UNIVERSITY SCHOOL OF LAW 25 MR. JAMES R. NEUHARD, DIRECTOR, STATE APPELLATE DEFENDER OFFICE, DETROIT, MICHIGAN KING COURT REPORTING SERVICE 3 1 P R O C E E D I N G S 2 MR. KURTZ: Those of you who are regular 3 members of the Commission meetings and certainly 4 members of the Commission will recognize that I am 5 not Charles Morgan. I'm a lot better looking and 6 a lot shorter, and I'm now about to live out the 7 dream of all of those people who have associate in 8 the front of their titles, and that is I'm going 9 to be in charge today. 10 Charles is unavoidably absent. I now have 11 the gavel. Thank you, Judge. And so we may stay 12 in session for three or four days. 13 I'd like to welcome everybody. I am Paul 14 Kurtz and I'm the reporter for the Commission, and 15 we do have a busy agenda and so I'd like to get 16 started. 17 Before we begin, Chief Justice Fletcher has 18 asked to say a few words to us and so, of course, 19 let us welcome Chief Justice Fletcher. 20 CHIEF JUSTICE FLETCHER: Thank you. I'm 21 just here to tell you how much we continue to 22 appreciate the work you're doing. I'm your 23 greatest fan, admirer. I have full confidence in 24 you because we're going to do great things, I 25 think, together, and I know it's hard work, but KING COURT REPORTING SERVICE 4 1 I'm very encouraged by the things that I see. 2 Being a bad budget year, I'm encouraged by 3 anything, and I understand about some things that 4 have happened, but after the state of the 5 judiciary and what few days the legislature has 6 been here since then, I have had more young 7 legislators stop me and say Judge, you are right, 8 we've got to do something. We're going to do it. 9 And then when you get on public television 10 on the weekend and have Larry Walker and Rusty 11 Paul there, and Larry starts talking about we've 12 got to do something about indigent defense, and 13 then Rusty Paul agreeing, you know we are just 14 around the corner, I think, and I know that with 15 the work The Spangenberg Group is doing and what 16 you're going to do with this product that we will 17 have some great things coming in the future, and I 18 just appreciate you so much and thank you for the 19 dedication that you have shown in this very 20 worthwhile task that is taken here. 21 MR. KURTZ: Thank you. 22 (Applause.) 23 MR. KURTZ: Before you go, Chief, I assume 24 that with your enthusiasm that you're going to be 25 doubling our per diem. KING COURT REPORTING SERVICE 5 1 CHIEF JUSTICE FLETCHER: Definitely. Paul 2 you're worth every penny of it. 3 MR. KURTZ: Touche. As is tradition around 4 here, I think we would like to go around the room 5 and have everybody, both Commissioners and guests, 6 introduce themselves before we begin our 7 proceedings, and I'll start over here. 8 JUDGE ADAMS: Harris Adams with the State 9 Court of Cobb County. 10 JUDGE STEPHENS: Lawton Stevens, Superior 11 Court Judge from Athens and Oconee County. 12 JUDGE FULLER: I'm Andy Fuller. I'm a 13 Superior Court Judge in Hall County and Dawson 14 County, and also represent the Council of Superior 15 Court Judges and a member of the Indigent Defense 16 Committee. 17 REPRESENTATIVE HOLMES: I'm Paul Holmes. 18 I'm with the insurance company Life of the South. 19 I live in Monticello, Georgia, and I don't have 20 any interns with me. 21 MR. GRIFFIN: I'm Jerry Griffin, Executive 22 Director of the Association of County 23 Commissioners of Georgia. 24 MS. DEVINE: I'm Flora Devine. I chair the 25 Georgia Indigent Council, and I'm an attorney with KING COURT REPORTING SERVICE 6 1 Kennesaw State University in Cobb County, and I 2 was an intern. 3 MR. HUNTER: I'm Woody Hunter from Emory 4 University and having no intern, I'm sitting 5 between two former students of mine. 6 MR. KELLER: I'm Bob Keller. I'm the 7 District Attorney from Clayton County. 8 MS. HOLMEN: I'm Phyllis Holmen with Georgia 9 Legal Services. Our interns are back at the 10 office working. 11 MS. COOK: I'm Julie Cook. I am with 12 BellSouth. 13 MS. LOONEY: I'm Ginny Looney. I work for 14 the Supreme Court of Georgia. 15 JUSTICE HUNSTEIN: I'm Justice Hunstein, 16 Justice of the Georgia Supreme Court. 17 MR. SHAPIRO: I'm Mike Shapiro, director of 18 the Georgia Indigent Defense Council. 19 MR. RUNDLETT: I'm Alex Rundlett with the 20 Southern Center for Human Rights. 21 MS. BUTTERWORTH: I'm Kendall Butterworth 22 with BellSouth. 23 MS. COOK: I'm Julie Cook with BellSouth. 24 MS. KOPP: I'm Emily Kopp, Georgia Public 25 Radio. KING COURT REPORTING SERVICE 7 1 MS. TOTONCHI: I'm Sara Totonchi with 2 Georgians for Equal Justice. 3 MR. KENDRICK: Michael Kendrick, 4 Administrative Office of the Courts. 5 MR. MARTIN: Jay Martin, Administrative 6 Office of the Courts. 7 MR. KURTZ: And Judge Birch, a person who 8 needs no introduction. I'm delighted this morning 9 to turn over the introducing chores to our fellow 10 Commissioners, Wilson DuBose and Phyllis Holmen. 11 Wilson. 12 MR. DUBOSE: Yes. 13 MR. KURTZ: And Phyllis. And now I 14 recognize you, go ahead. 15 MR. DUBOSE: We're going with them first? 16 MR. KURTZ: Yes. 17 MR. DUBOSE: Okay. Our first guest this 18 morning is Robert Surrency. He is the contract 19 defender of Greene County, which is about 75 miles 20 east of Atlanta. I believe you live in Oconee? 21 MR. SURRENCY: Yes, that's right. I 22 actually practice in the Western Judicial circuit, 23 and my contract is in the Ocmulgee division. 24 MR. DUBOSE: Right. Mr. Surrency was unable 25 to be with us when we had some other Public KING COURT REPORTING SERVICE 8 1 Defenders and contract defenders speak with us at 2 our last meeting. We welcome you here this 3 morning. Mr. Surrency. 4 MR. MARTIN: Let me make an announcement. 5 MR. KURTZ: Yes. I apologize. 6 MR. MARTIN: Using the restrooms you go 7 straight through the passageway into the judicial 8 building and then make a left, go down the hall. 9 If you try to go out either of these doors that 10 are locked you won't be able to get back in, and 11 so for the restrooms you have to go back through 12 the center hallway, into the judicial building to 13 use the restroom. 14 MR. KURTZ: Mr. Surrency, if you will go 15 ahead. And, first of all, thank you very much on 16 behalf of the administration for being here. We 17 appreciate very much you taking the time and 18 effort to come and talk to us about your work as a 19 contract attorney. 20 Why don't you go ahead and make whatever 21 statement you'd like and then I'm sure we'll have 22 some questions. 23 MR. SURRENCY: Yeah. I have, I hope, the 24 pleasure of the Commission the same attitude that 25 Abraham Lincoln had to speeches, and that is as KING COURT REPORTING SERVICE 9 1 fast as you can get it over with that is the best 2 way to do it. 3 I had some ideas, however, that I wanted to 4 to say to you before I let myself be questioned as 5 a member of the bar that is actually in the 6 trenches with the issue that you all are concerned 7 about, and I noticed from your introductions that 8 you're all representatives of all different 9 aspects of the legal community that have something 10 to do with indigent defense, and I always like to 11 have an opportunity to talk to members of the bar 12 who are not directly Public Defenders or defense 13 lawyers. 14 My first order of business that I had in my 15 short address was to say that I think where the 16 State of Georgia takes the unfair position that 17 the legislature will fund whatever position that 18 the District Attorney is willing to ask, however 19 they do it, and indigent defense is the stepchild. 20 This doesn't mean that all District 21 Attorneys are bad people. I hasten to add that 22 whenever there is an audience that might think 23 that I have a contrary opinion, but the point that 24 it's basically unfair for the legislature to take 25 its position and, therefore, they should be KING COURT REPORTING SERVICE 10 1 funding indigent defense on the same -- with the 2 same attitude and the same level of funding that 3 indigent defense -- I mean, they should be equal, 4 indigent defense and the District Attorneys. 5 This position I think is routed in 6 fundamental fairness. I think no matter which 7 side of the bench you sit on, whether you're a 8 Judge or you're a District Attorney, or you're the 9 defense, it just makes common sense that we should 10 be treated the same and fairly. 11 I am always reminded by my counterpart, the 12 assistant District Attorney of the Ocmulgee 13 circuit that he's proud to say he handles 100 14 percent of the caseload and I merely handle 80 15 percent. 16 And so maybe if we were to concede to that 17 80 percent that we would be happy because we would 18 get more than we get from public defense, and so I 19 concede absolutely that the members of the bar who 20 are assistant DAs struggle under a caseload. 21 Anytime you talk about the indigent defense 22 caseload there is a prosecutor somewhere doing the 23 same thing. 24 I might add that I was originally a graduate 25 of Temple University and I was a member of the KING COURT REPORTING SERVICE 11 1 staff of the District Attorney in Philadelphia for 2 six months before I stopped doing that and became 3 a civil lawyer out in the suburbs, and I remember 4 very distinctly 25 years ago that the assistant DA 5 that I was working with coming in every morning at 6 7:30 with a new, literally, box load of files 7 which he had never seen. Starting at 7:30 and 8 worked through by the end of the day. 9 That box was empty because his boss told him 10 to empty it, and because the next day he knew 11 there was another box coming and you'd better be 12 ready. 13 And so the point of the matter is that it 14 has two sides to this story, and I don't want to 15 seem to not be recognizing that, but still you all 16 are much better, more fluent than I am with how 17 much the state of Georgia shortchanges indigent 18 defense, and it certainly does. 19 And all of the testimony that you've heard 20 from people who are more in the know than I am 21 would certainly back that up, but my first point 22 was that it is only fundamental fairness that the 23 legislature treat the prosecution and the defense 24 equal, and they don't, period. 25 I think that should be corrected by whatever KING COURT REPORTING SERVICE 12 1 means is the proper manner to do that, which leads 2 me to my next page point, and that is I have had a 3 contract with Greene County for 15 years as the 4 public contract defender. 5 There is only one lawyer in the State of 6 Georgia, to my knowledge, that can say almost the 7 same thing is Terry Everett from Warner Robins has 8 been in her position about the same length of 9 time, and she and I have had that distinction of 10 being the only two that have stuck it out, or 11 survived, if you will, depending on which side of 12 the bench and bar you're on. 13 And having done that I can say to you that 14 it's not easy to find people who wake up in the 15 morning wanting to be public defenders. I think 16 it's much more likely that they woke up in law 17 class every once in a while to dream of being 18 District Attorney, and I certainly did, and I 19 started out my career that way, and then I ended 20 up getting this contract when I came to Georgia in 21 1983. 22 I have been in Georgia since 1983 as the 23 contract defender, to be precise since 1987, and 24 so I have been through some of the changes that 25 are going on and if it's any consolation to any of KING COURT REPORTING SERVICE 13 1 the members of this Commission, changes are going 2 on in the street about public defense. 3 I think the most recent publicity is a good 4 thing and certainly your existence is a good 5 thing, and it has had an impact in every county in 6 Georgia. I'm sure whatever other decisions you 7 make certainly, your existence makes the issue 8 come forward in a more positive light than it did 9 before. 10 I suspected when I got my contract that it 11 was an unwritten portion that I was not expected 12 to win any cases. Let's face it, the 13 Commissioners didn't even want me there in the 14 first place, and they were there simply because 15 the Supreme Court of the United States had 16 mandated it, and this was the easiest, and they 17 viewed it as the cheapest way of disposing of the 18 problem, simply give it to Robert and leave it 19 alone, and that's the way I started in this 20 business 15 years ago. 21 I'm happy to say that I can report that the 22 Commission attitude is nowhere near as hostile 23 today as it was 15 years ago; that today there is 24 a recognition of local government that the public 25 defender does have to exist and there is a purpose KING COURT REPORTING SERVICE 14 1 for it, which is a big step forward. 2 Because 15 years ago the recognition was 3 these indigent deserve and should have no public 4 money, and they were very serious, and they meant 5 that literally in 1987 when I took over, and that 6 was their attitude, and they did their best to 7 prove it by making sure that I fought them every 8 single dime that I receive in any capacity. 9 Today I would like to hope that you all can 10 be of assistance in cutting off the strangulating 11 effect of this situation and making them more 12 willing, even if it's not by direct action of the 13 Commission to be fair to someone who, after all, 14 does control 80 percent of the caseload in his 15 given district. 16 I think most indigent defense places that I 17 know of can tell you that, whether it was Fulton 18 County or anywhere else, that they control a good 19 piece of the calendar, consequently the Judges and 20 the District attorney does pay attention to it. 21 I think there are some of them that are not 22 really pulling their weight. You're in a better 23 position to judge that, but, of course, I would 24 like to fancy myself as one that would be judged 25 favorably if you had the chance to do that. KING COURT REPORTING SERVICE 15 1 And so with that in mind, I would like to 2 say that I think that a state-wide system of 3 public defense would be a bad idea for Georgia. I 4 think Georgia has a history of local government 5 that weighs against a uniformity in one sense, but 6 an improvement would be to try in some sort of 7 organization along a circuit level. 8 At least that would be my proposal as to how 9 you would structure this, and that was one of my 10 major missions to say that I have no trust in a 11 uniformed, state-wide, Public Defender's office. 12 I had to fight the Commissioners, but I also 13 had to deal with the Commissioners, and I think 14 the local government deserves a say, and before 15 the legislature gets after you for spending their 16 money without their exact oversight they let the 17 DA do it so, frankly, they should let the public 18 defender do it. And that's my attitude towards 19 how things can be done. 20 I'm sure that you all have heard many other 21 good ideas of which I'm fully unfamiliar, but I 22 would like to say that anything you do I hope will 23 have some consideration for the people, and they 24 are a small minority of people who are willing to 25 do this job in the first place, and I would hope KING COURT REPORTING SERVICE 16 1 that you would have some, at least, compassion on 2 their position because they're the ones that have 3 held it together for so long before you all were 4 paneled to improve our situation. 5 So that is the major points that I had to 6 address you on, and I appreciate your opportunity 7 to let me say my peace. I have been doing this 8 long enough to have some very practical experience 9 from whatever perspective each of you might have 10 on public defender as to what the problems are or 11 what might be more specific solutions. 12 I do want to put in a plug for one idea I 13 had, and that was that you'll notice right now 14 most indigent defense is done by the appointment 15 system, and the appointment system, itself, is 16 chaotic because there is no uniformity in the list 17 and there is no uniformity in the application of 18 the list. 19 And so every county in Georgia has its own 20 home grown attitude as to how you get on the 21 appointed list, and how you stay on the appointed 22 list, and how you're treated on the appointed 23 list. 24 Now, from this place it's my understanding 25 that the Supreme Court or any other body that you KING COURT REPORTING SERVICE 17 1 all could imagine could put an end to this by a 2 very simple procedure of saying that throughout 3 Georgia if you're going to have an appointed list 4 it should be public and it should be run honestly. 5 And I hasten to add there is no one villain 6 that you can go after. There is no one person who 7 is a bad person, but I would dare say that the 8 appointed list, as it is not public now, should be 9 public so that it can be fairly administered, and 10 that would change the lives of many indigents 11 almost immediately. 12 So if you're struggling for ideas as to what 13 you could do, at least I have one, I hope, 14 positive suggestion to do. So with that done, I 15 would say that that's the best that I can do to 16 bring my two cents to the Commission. 17 I know some of the people in the room and 18 some of the members of the Commission. I'll be 19 happy to answer your questions. 20 MR. KURTZ: Thank you. Let me start off. 21 At the beginning you said that you didn't think 22 uniformity was an appropriate stance for the state 23 to take because of the history and tradition and 24 the sheer number of counties, I suppose. 25 MR. SURRENCY: Yes. KING COURT REPORTING SERVICE 18 1 MR. KURTZ: And then at the end you talked 2 about a rule about the nature of appointed lists. 3 I assume what you mean is that each circuit should 4 be able to come up with -- well, I don't want to 5 put words in your mouth. 6 You did mention the circuit level. How 7 would you envision the system operating, each 8 circuit would come up with its own way of doing 9 it? 10 MR. SURRENCY: No. No. What I was saying 11 was as of today large numbers of indigents are 12 represented by appointed lawyers. That is local 13 lawyers in a county who have made it known to the 14 proper authorities in the courthouse that they 15 would be willing to take these cases. 16 MR. KURTZ: I see. 17 MR. SURRENCY: But nowhere in the State of 18 Georgia is there a system or is that list public. 19 It would be simple to say to the county wherever 20 you are if you have an appointed list make it 21 public and run it honestly. 22 I think there are a lot of people trying to 23 run it honestly, but there has never been a 24 mandate to do that. 25 MR. GRIFFIN: What does run it honestly KING COURT REPORTING SERVICE 19 1 mean? 2 MR. SURRENCY: Run it honestly means that if 3 you put up too vigorous a defense for an indigent 4 who is unpopular, sir, you might find yourself 5 appointed once in a blue moon. 6 And, honestly, I can speak from rather 7 bitter experience that I have been in my circuit 8 since 1984. I have had four appointed cases. 9 That is where the Legal Aid Society did not feel 10 necessary to represent them. 11 I have a colleague down the street who gets 12 four a week, and I suggest to you that this is no 13 accident nor does it reflect an honest 14 representation of the list. So if it was public 15 and if it was done honestly, meaning you would go 16 down a list and whosever name came up came up, 17 then you would have a good solution for an 18 immediate impact in one of the problems that we 19 have. 20 MR. KURTZ: I assume you would account for 21 or accept the notion that there might be separate 22 lists for felonies and misdemeanors or there might 23 be -- 24 MR. SURRENCY: Of course, and I don't mean 25 to change -- and I think the list is, as a general KING COURT REPORTING SERVICE 20 1 rule, being run in this situation where the people 2 that want to be in it are in it, but then the 3 selection process is diverse. 4 Every single county has its own procedure. 5 There is no one bad guy. Most of the time all of 6 the people in the system think it's being run the 7 way I proposed but, frankly, it is not being run 8 the way I proposed, and I think close examination 9 would bear that out, and that is if you are too 10 vigorous or too delaying you might find yourself 11 appointed once a year instead of once a week. 12 MR. KURTZ: I want to get back to your -- 13 you did mention earlier that you thought that the 14 system ought to be organized, although it 15 shouldn't be uniform across the state. You don't 16 think that there ought to be a state-wide system, 17 but you did mention that it ought to be organized 18 on the circuit level. 19 MR. SURRENCY: Yes. 20 MR. KURTZ: Could you expand on that? 21 MR. SURRENCY: Well, I would say I am the 22 contract defender of Greene County, which is one 23 of several counties in the Ocmulgee judicial 24 circuit. 25 I'm personally glad I'm not responsible for KING COURT REPORTING SERVICE 21 1 the whole circuit. It as big as the State of 2 Rhode Island. It would be a tough job to be the 3 head of that, even with the staff. 4 But right immediately north of that, in case 5 members of the Commission might not be fully 6 familiar with this, is the Northern judicial 7 circuit, which is fairly substantial. Is there 8 any member of the Northern judicial circuit here? 9 I didn't recognize you. 10 The Northern judicial circuit has a 11 circuit-wide contract defender, and they have an 12 office, and they have staff, and I hope that at 13 least they had some impact on you before now 14 because they would be good, too, as far as giving 15 you evidence. 16 But it can be done and that seems to me to 17 bring them up to the level and make them a more 18 worthy proponent than I'm totally able to do. 19 I'm always amused by the fact that in these 20 meetings I know my good friend, Mr. Steve Bright, 21 is here, and I'm -- my tongue is always ready to 22 call him Fred because Fred Bright is the District 23 Attorney in my circuit, and the last name is the 24 same but certainly nothing else. 25 MR. KURTZ: Maybe we should not elucidate KING COURT REPORTING SERVICE 22 1 about that. 2 REPRESENTATIVE HOLMES: Do you have a 3 private practice as well? 4 MR. SURRENCY: Yes, I do. And actually 5 that's another point. Fifteen years ago in Greene 6 County, which is a rural county, the caseload was 7 comparatively negligible, and so the Commission 8 decided they would do the unpopular thing for the 9 circuit and have a contract public defender. 10 And so I made a bid and I won a bid process 11 in 1987. That's how I got in the door. I think 12 you stay in the door by being a good lawyer in 13 that position because you will find that, to some 14 people's surprise, DAs and Judges do appreciate 15 someone who tries their best to be efficient in 16 the perspective that I'm in, and I'd honestly like 17 to tell you that I hope that that's the reason 18 that I'm able to speak to you today, still having 19 a contract. 20 REPRESENTATIVE HOLMES: So you're not just a 21 low bidder then? 22 MR. SURRENCY: Right. In other words, it 23 may have been once upon a time where when they had 24 nobody to choose from, they didn't know anybody. 25 Greene County was just a rural county. I went KING COURT REPORTING SERVICE 23 1 through a bidding process. 2 REPRESENTATIVE HOLMES: Is that bid out 3 every year or every -- 4 MR. SURRENCY: Not if I can help it. 5 REPRESENTATIVE HOLMES: How do you base your 6 bid? Have you got a caseload? Do you try to do 7 it by an hourly scale or per case, or how do you 8 come up with it? 9 MR. SURRENCY: Well, sir, I have to take the 10 different approach and that is I have to do the 11 best I can to persuade the Commission to give me 12 anything. 13 And, again, I mean no disrespect. Things 14 are a lot better than they were 15 years ago, but 15 you all have been faced with the fact that 16 indigent defense is not the most particularly 17 popular thing in the State of Georgia, and there 18 is very little or no constituency. 19 And so what I do, sir, is I do the best with 20 what I can to get staff and to get money out of 21 the Commission one way or the other. I guess it's 22 a good thing that the Commissioner is in charge of 23 me and not a good thing because he was coming. 24 Mr. Bud Sanders, who I believe has been here 25 at some meetings of this Commission, is the KING COURT REPORTING SERVICE 24 1 Commissioner in Greene County immediately 2 responsible for me, and he was coming this morning 3 except for an illness that happened yesterday, I'm 4 sad to say, because he had to fly out of town and 5 not come here this morning, but he fully intended 6 to come with me, and I would have said the same 7 thing I'm saying to you. 8 I'm confident were he here or he not here, 9 but the answer to your question is I have to be as 10 practical as I can and move the county towards a 11 fair funding as best I can. 12 I have achieved, after 15 years, a certain 13 amount of staff that I think the Commissioners, 14 some of them, might be surprised to find how 15 successful I've been in establishing this office, 16 but it was not done with their open support and 17 enthusiastically throwing money at indigent 18 defense. It was done by just force of budget, and 19 I have to beg for assistance. I have to beg an 20 attorney in the Western circuit to come back me up 21 in my job. 22 REPRESENTATIVE HOLMES: Do you feel like it 23 takes your private practice to kind of subsidize 24 your -- 25 MR. SURRENCY: And what happened was, KING COURT REPORTING SERVICE 25 1 truthfully, the private practice subsidized the 2 public contract and now I face the dilemma where 3 the public contract is eating up the time to the 4 point where there is not much private practice. 5 I'm happy to say I still have one, but it is 6 not -- it is being forced out, to be honest with 7 you. And so I guess I'm somewhat against my own 8 self interest. If I wanted to be an administrator 9 of a public defense program and just make that my 10 profession then I could shut down my otherwise 11 private practice and do that, but that's not what 12 I'm doing, and I hope that's not what I end up 13 doing. I'd like to be able to occasionally step 14 away from the bureaucratic position of indigent 15 defense and be able to represent other people. 16 MR. KURTZ: I'm curious about the mechanics 17 of it, and I think this may be the point that 18 maybe Paul was trying to get at. 19 Each year do you literally receive a 20 contract? Do you have to negotiate a contract? 21 Does the Commission offer this contract, the 22 possibility of a contract to other people? 23 MR. SURRENCY: Well, Mr. Chairman, what has 24 -- the situation is -- 25 MR. KURTZ: I like it when you say chairman. KING COURT REPORTING SERVICE 26 1 Say chairman again. 2 MR. SURRENCY: I thought you might 3 appreciate that. 4 JUDGE ADAMS: Get that gavel back from him. 5 MR. SURRENCY: I think it would be no 6 surprise to anyone that there is no structure here 7 and, in other words, my contract goes for the term 8 that it goes for, and when it expires I have to 9 get it renewed, and it can be renewed by any means 10 that's offered by the Commission by their great 11 means as to how they do that. 12 They do not do it on a regular basis. When 13 they do it I have to go in there and answer to the 14 previous question. I have to fight for what I 15 get, and I feel like over time I have been pretty 16 successful in doing that. 17 But the answer to you is there is no -- you 18 can't put it on your calendar when the contract in 19 Greene County might be up except to read the 20 current one. 21 MR. KURTZ: And have you read the current 22 one? 23 MR. SURRENCY: Yes. I have another year to 24 go on the current one. 25 MR. KURTZ: Okay. KING COURT REPORTING SERVICE 27 1 MR. SURRENCY: It's a two-year one, which 2 I'd like to credit Mr. Mike Shapiro for because 3 one of the guidelines of the indigent defense is 4 they recommend that you have a contract for not 5 less than two years, and the Commission didn't; is 6 that right? 7 MR. GRIFFIN: He just said they did. 8 MR. KURTZ: I mean, you're being responsive. 9 I think I understand what you're saying. 10 MR. KELLER: Can I ask you a couple of 11 questions? 12 MR. SURRENCY: Certainly. 13 MR. KELLER: As a result of the contract, 14 what is the size of your staff? What is your 15 caseload and does the -- I would assume you got 16 misdemeanors and felonies in the county. 17 MR. SURRENCY: Yes. The figures brought by 18 the indigent defense committee, which they publish 19 every year, are always my official and I think 20 accurate response to the statistics that I do. 21 And when we were talking about the most 22 recent contract in answer to your question, I told 23 the Commission that I felt that they were 24 approaching 159th in funding per capita for cases. 25 And so that was actually one of the things KING COURT REPORTING SERVICE 28 1 that I said to them in order to get them to be a 2 little more generous with the contract that I 3 currently have; that their efficiency has just 4 about gotten them to the bottom of the list, and I 5 said that to them. 6 I said that, you know, my caseload is high. 7 It's a matter of public record that Mike has got 8 it at his fingertips as far as exactly what I do, 9 but I will answer. Go on and flesh that out. 10 I do the Superior Court, I do a certain 11 amount of commitment hearings to the Superior 12 court, I do the Magistrate Court by this contract. 13 Magistrate is typically traffic where I am, 14 and so there is a level of misdemeanors I'm 15 responsible for as well as substantial felony 16 things. 17 And Mr. Bright, who visited me a year ago 18 February, when I was actually there in battle -- 19 JUDGE BIRCH: Steven or Fred? 20 MR. SURRENCY: Fred doesn't visit me. When 21 Steve visited me a year ago he calculated, I 22 think, accurately that, frankly, I'm about double 23 what the Supreme Court says I should be doing. 24 If you were to take their voluntary 25 guidelines and apply them to my caseload, I am KING COURT REPORTING SERVICE 29 1 doing both, a misdemeanor caseload and a felony 2 caseload about right, but I'm doing both of them. 3 Does that help you with the statistics? 4 MR. KELLER: No. No. I want -- I mean, I'm 5 not trying to be difficult, numbers. When you 6 mentioned the caseload -- 7 MR. SURRENCY: Isn't it something like 150 8 and 175 felonies that the Supreme Court 9 recommends? I mean, forgot exactly. 10 MR. KELLER: Well, does that mean -- I'm not 11 trying to be difficult. I mean, if you're 12 doubling that, does that mean you're doing 300 13 felonies a year? 14 MR. SURRENCY: No. No. No. I would say 15 the felony load that I'm permitted, which is a 16 hundred -- 17 MR. KURTZ: 150, 715. 18 MR. SHAPIRO: 150, according to Greene 19 County statistics from calendar 2000, which was 20 the last date we updated, there were a total of 21 668 cases handled, and an expense of $69,666.69. 22 MR. SURRENCY: That's felonies and 23 misdemeanors? 24 MR. SHAPIRO: Felonies, and appeals, and 25 juvenile cases, and revocations. KING COURT REPORTING SERVICE 30 1 MR. SURRENCY: His disadvantage is his 2 numbers are skewed by the appointment that I can't 3 handle and several other statistics. I'm trying 4 to answer you, practically speaking. 5 I believe, realistically, that I'm doing a 6 felony caseload about where the Supreme Court 7 wants it. I'm doing a misdemeanor caseload about 8 where the Supreme Court wants it, only I'm 9 responsible for both, and that's really, I think, 10 in general speaking, what the statistics would 11 bear out, even though the ones from Mike would be 12 higher because they include people in conflict and 13 other things that inflate the numbers. 14 As honest as I can be to your question, I 15 feel like I'm, basically, double what the Supreme 16 Court recommended. 17 MR. KELLER: Now, are you the only lawyer on 18 your staff? 19 MR. SURRENCY: No, I'm not. I have a 20 part-time assistant. I'm officially part-time. 21 MR. KELLER: Okay. 22 MR. SURRENCY: And I have a part-time 23 assistant, and so the numbers are affected by 24 that. 25 In other words, I have another lawyer who is KING COURT REPORTING SERVICE 31 1 responsible for some of it, but that brings me to 2 a very good point that I didn't say. I think 3 you're going to find that a rigid application of 4 caseloads to indigent defense lawyers or any other 5 lawyer is a very bad idea, and that's because the 6 practice of law doesn't allow itself to that kind 7 of regimentation. 8 I think that private lawyers handle large 9 numbers of felonies, at least under their 10 signature, a year, and misdemeanors, too. I would 11 like to see it limited to the Supreme Court's 12 limit to misdemeanors in the State of Georgia, and 13 that's one of the things that I did want to say to 14 the Commission. 15 If you think that I'm incompetent because I 16 handle, just because I handle more than the 17 Supreme Court says, then you had better be willing 18 to take that statement and apply it to some of the 19 very best lawyers in the State of Georgia who 20 routinely do the same thing, at least under their 21 signature. 22 And that brings you right to the question: 23 How do you make that number make sense when I have 24 a part-time lawyer helping me and a part-time 25 investigator? How much did the Supreme Court mean KING COURT REPORTING SERVICE 32 1 for me to be able to go over their limits because, 2 in fact, I do have staff? 3 And I suggest to you that the Supreme 4 Court's attitude is what it should be, and that is 5 that they don't have a rigid rule. I have not 6 violated anything by what I'm telling you because 7 they allow me to make those kind of adjustments, 8 and I feel that I am overseeing the quality of my 9 work better than a lot of people, and I'm kind of 10 proud of that. 11 I'm glad that Mr. Bright, Steve Bright, came 12 to visit me a year ago February because that 13 assisted me in being better at what I was doing, 14 and Mike Shapiro is no slouch. And he knows my 15 phone number, too, and so the point of the matter 16 is it's not like I'm out there literally unwatched 17 as far as how I behave. 18 REPRESENTATIVE HOLMES: There was an article 19 in the Times or something that it is critical to 20 meet and plead. You know, was that you? 21 MR. SURRENCY: I hasten to add that the -- 22 yes, the critical paper was, thank goodness, not 23 New York Times but it was instead the Nation which 24 is a periodical that's published in New York and 25 their heading, which should be of interest to the KING COURT REPORTING SERVICE 33 1 Commission, was justice on the cheap. 2 And, by the way, that can't be a big 3 surprise to you. It seems like that headline has 4 been there on several other occasions in several 5 other places, but they were critical of me because 6 of the caseload and because of the nature of the 7 animal. 8 And I hasten to add that if anybody ever did 9 the research and found that article it is an 10 amusement to me and no surprise to some members of 11 the Commission that I was criticized for five 12 different cases where I was supposedly not doing 13 the right thing. 14 Ninety days later all five of them pled 15 guilty to exactly what I said they were going to 16 end up with and got exactly what I said. And so 17 every one of those five examples of how bad I was 18 with independent counsel confirmed my original 19 position. 20 And then they pulled another fast one on me. 21 They said that in the last four years only 13 of 22 my people ever went to trial out of, what you 23 heard Mr. Shapiro say, a pretty substantial 24 caseload. 25 The trick to that was in Greene County in KING COURT REPORTING SERVICE 34 1 the last four years only 16 trials were held, and 2 so I handled three -- you know, 80 percent of the 3 caseload. I did exactly what my county does, 4 private and public, for indigent defense. 5 In other words, there was not one thing 6 different about me than some of the very good and 7 no doubt lawyers that you know who happen to live 8 in that circuit behave in the same manner. 9 MR. GRIFFIN: Mr. Surrency, whose 10 responsibility is indigent defense? In your mind 11 you've been dealing with this a long time, and 12 whose responsibility is it? 13 MR. SURRENCY: Well, I think the 14 responsibility of it is ultimately, ultimately, 15 the Supreme Court of Georgia, and I think they 16 recognized that by making this Commission, but 17 then when you step down whose funding is it? I 18 believe the funding is the State of Georgia that I 19 very much am of the opinion that the Commissioners 20 should not be permitted to struggle alone with 21 this burden while the state gleefully funds the 22 prosecution. 23 MR. GRIFFIN: All right. You know, I agree 24 with that. Well, if that's the case then how do 25 you think we're going to get the state, though, to KING COURT REPORTING SERVICE 35 1 accept a multitude of systems with every county? 2 You know, the legislature has never been 3 very magnanimous in giving money and recognizing 4 home rules at the same time, and so how do you 5 reconcile those two sides of this issue? 6 MR. SURRENCY: I'm pleased that you asked 7 that. What I would say to you was I want to copy 8 the success, and I use that word advisably of my 9 friends across the table. That is the District 10 Attorneys planning to get whatever they get 11 without giving up very much autonomy, and I 12 suggest to you all I'm asking is just the same 13 treatment. I think we can do that. 14 MR. GRIFFIN: But all District Attorneys are 15 elected. 16 MR. SURRENCY: Of course and they're all 17 under different disadvantages and different levels 18 of what they can and cannot do to be completely 19 blunt, but what I'm saying is as a class, and this 20 wasn't intended as a criticism, they have the 21 ability, more than the indigent defense people 22 have ever had, to get funds. 23 I mean, for instance, Greene County, the 24 state funds part of the District Attorney's 25 operation in Greene County. That is the State of KING COURT REPORTING SERVICE 36 1 Georgia supplements their operation in Greene 2 County. 3 Now, honestly, I don't have my Commissioner 4 with me, and so I can't quote you the number. 5 MR. GRIFFIN: The State of Georgia subsidize 6 them or does Greene County subsidize the State? 7 Now that's a big difference. 8 MR. SURRENCY: That depends on who the 9 legislature was, who wrote the bill, but the money 10 comes from Atlanta. But you're right, it could 11 come via another method, and everybody -- it's 12 every group for themselves. 13 And I think one of the things about the 14 Commission is you're trying to get a grip on that 15 attitude and trying to impose a little more 16 rationale in funding at the same time that you're 17 getting parity in funding for indigent defense as 18 best you can do it. 19 And all I said is that there has got to be a 20 way because, again, not sounding like a broken 21 record, the District Attorneys manage and so 22 surely we could manage. 23 Now, again, that's not a criticism of them. 24 I'm glad that they're able to do what they do. 25 And, by the way, they protect me and any other KING COURT REPORTING SERVICE 37 1 member at this table as much as I protect my 2 clients. I respect very much. I have always been 3 a very clear advocate of that. 4 You know, there are some people who don't 5 seem to take that position, but I'm not one of 6 them. 7 JUDGE BIRCH: Let me ask you this. The 8 Speaker of the Georgia legislature and House, when 9 asked about this, and this is according to what I 10 read in the paper, said that all of the -- a lot 11 of these counties get substantial amounts of money 12 from fines and other court administered traffic 13 offenses, I guess, and other kinds of fines that 14 go through the Court system. 15 MR. SURRENCY: Right. 16 JUDGE BIRCH: And his perspective was that 17 that money ought to be designated -- would be more 18 than ample to fund indigent defense in the county. 19 Now, talk to us a little bit about the 20 practicalities of that, the realities of that, or 21 whether those sums, to the extent that you know 22 them, perhaps your Commissioner would be better on 23 that issue, but my understanding is most of that 24 money that is collected I think just in the 25 general fund and is not allocated to indigent KING COURT REPORTING SERVICE 38 1 defense. 2 MR. SURRENCY: No, it certainly is not. In 3 fact, the Commissioners would have a hard time 4 even hearing your suggestion because they view 5 that as just one more source of revenue. 6 Let me try to say it at least from my 7 experience. First of all, there is no State Court 8 in Greene County and so there is a Superior Court. 9 If you're going to have a trial you've got to go 10 to the Superior Court, a jury trial, but you can 11 have two other traffic courts, one of which I'm 12 responsible for, one of which I'm not. 13 And so the point is that as far as that's 14 concerned it's my understanding, and you all have 15 much better access to the numbers than I would 16 have, that the Superior Court, and I guess I'm 17 saying this advisably in answer to your question, 18 is not a money-making proposition; that when you 19 sentence someone to 20 to serve you're probably 20 not going to get a lot of fine money. 21 JUDGE BIRCH: It's the other courts, 22 Magistrate and Traffic courts? 23 MR. SURRENCY: But the traffic court, 24 regretfully, it has come to be known that the 25 Commission is looking to them for funds. KING COURT REPORTING SERVICE 39 1 JUDGE BIRCH: You say you represent some 2 misdemeanors? 3 MR. SURRENCY: Yes. 4 JUDGE BIRCH: What happens to the others? 5 MR. SURRENCY: The local Magistrate manages 6 to solve that problem without requiring them to 7 have a public assistance lawyer. 8 JUDGE BIRCH: How is that? 9 MR. SURRENCY: I honestly don't know, but 10 what I'm running into is two or three appointments 11 per month, which I do pay attention to the Supreme 12 Court of Georgia, and they have been trying to 13 tell me not to go hog-wild and have thousands and 14 thousands of cases on me. 15 And so I'm just grateful for what they do, 16 but I guess they represent themselves. 17 JUDGE BIRCH: Do they have a pretrial 18 diversion process? I think there was an article 19 last night in the Atlanta Journal-Constitution 20 that talked about Fulton County, that talked to 21 people who languished in jail on a misdemeanor 22 defense; that if they got prompt counsel, and 23 prompt arraignments, and prompt disposition would 24 save ultimately the county a lot of money for the 25 individual sitting in jail at whatever it is, $45 KING COURT REPORTING SERVICE 40 1 a day. 2 MR. SURRENCY: Well, I think there you have 3 to draw the line in my experience between the 4 urbanized areas of Georgia and the rural areas 5 because the same officeholder in Fulton County 6 does not do the same job as the same officeholder 7 in Greene County. 8 And an example of that is the sheriff. The 9 sheriff in Greene County has a problem, and that 10 is he's got 63 beds in his county jail, not 64. 11 And so if you arrest people, people have to come 12 out for people to go in. And to be blunt about 13 it, every county in Georgia, at least the rural 14 counties, have that problem. 15 And so the answer to you is that's how that 16 actually -- the pressure is being released somehow 17 through some official capacity of a combination of 18 the Judges responsible, the DAs responsible, and 19 the police responsible. And so it is not a one 20 person is at fault situation. 21 In other words, if you were to go to the 22 rural county and point to a prisoner in that rural 23 jail trying to find out why he hasn't got himself 24 out yet would not be the responsibility of just 25 one person. I particularly wanted to say that KING COURT REPORTING SERVICE 41 1 because it's not my responsibility. 2 JUDGE BIRCH: And so it's a -- if I'm 3 reading you right, if the jail for some reason in 4 a particular month isn't close to capacity the 5 chances of someone languishing, let's say, for a 6 long period of time are greater than perhaps when 7 the bed needs to be filled then they find a way of 8 getting them out. 9 MR. SURRENCY: Well, is it not the 10 experience of this Commission that there is 11 scarcely a sheriff in the State of Georgia that 12 doesn't have a problem with his space? I mean, 13 has anybody testified that they have plenty of 14 room in their county jail? 15 Honestly, I don't think anybody would do 16 that, and I think it's true they would do that. 17 And so really that's a problem. I think there is 18 a constant pressure on them. 19 MR. KURTZ: We have one more question and 20 we're going to have to move on, and we do 21 appreciate you coming very much. Woody. 22 MR. HUNTER: I just wanted to get back to a 23 couple of questions that Mr. Keller asked so that 24 we can get a real handle on some of the facts of a 25 situation like this. KING COURT REPORTING SERVICE 42 1 Mike said that in the year 2000 there was 2 668 cases funded at a total cost of $69 thousand 3 and my question is, approximately how many of 4 those 668 cases were handled by your office? 5 I don't need an exact figure, but 6 approximately. And how does that figure of $69 7 thousand compare to what the contract fee is for 8 your office? That's part one. 9 Part two, you said you have a part-time 10 assistant lawyer and a part-time investigator. 11 Are they in Greene County? Do they have other 12 practices? How much time is part-time? Are you 13 talking about 50 percent? 10 percent? 14 MR. SURRENCY: No. No. No. The lawyer 15 that I'm speaking of spends no more than 10 16 percent of his professional time in Greene County, 17 and so he does assist me particularly on trial 18 days when all the parties are together and they're 19 trying to do their best to move the caseload, then 20 I always have at least one assistant there helping 21 me make sure the people are treated fairly and 22 those that need trials are tried and those that 23 don't don't. 24 And so I'm trying to answer the question to 25 get to all of the parts of it, okay? That that -- KING COURT REPORTING SERVICE 43 1 what was the first -- what was your first concern? 2 I probably should have answered it. 3 MR. HUNT: 668 cases at $69 thousand. 4 MR. SURRENCY: What I was trying to say, the 5 truthful answer to that should be about two thirds 6 of that. And the reason you asked that, that's a 7 good question because my contract to that theory 8 would have paid me, me personally, about $25 9 thousand, not $69 thousand, and my assistants 10 another 10. 11 And so you'll notice the private bar gets 12 about half in Greene County of the money spent for 13 indigent defense and so my office doesn't even get 14 half of what they reported to Mr. Shapiro. 15 MR. KURTZ: How are conflicts handled under 16 your contract system? 17 MR. SURRENCY: Well, I'd like to think that 18 what happens is I am the first determiner of 19 whether or not I have a problem, and if I have a 20 problem then the clerk very happily names someone 21 and they have a list, and whoever is on that list 22 becomes the next lawyer in line. 23 MR. KURTZ: And they get paid at what rate? 24 MR. SURRENCY: But they get paid at what 25 you've run into, and that is a very low, more or KING COURT REPORTING SERVICE 44 1 less, fixed rate. And so my contract looks good 2 by comparison to what an appointed lawyer would 3 get per capita. 4 MR. KURTZ: Phyllis. 5 MS. HOLMEN: Thank you. A couple of months 6 we had an issue about the issue of standards of 7 evaluating a public defense system and I and 8 Wilson were asked to put together a program in 9 that. 10 Let me point out a few things in that 11 material before I get started with that speaker, 12 and I'm going to move this along quickly. 13 We have several in there from Indiana, who 14 Mr. Lefstein is from, and I went online trying to 15 figure out what standards there were, and there is 16 a Department of Justice Web site that compiles all 17 of the various kinds of standards from different 18 entities and states, and that's behind a page tab, 19 and I would commend you taking a look at that, and 20 it does reflect how many sets of standards there 21 are, and that's one of the things that we talked 22 about this morning. 23 And then behind the green tab is the 10 24 principles recently about dividing the American 25 Bar Association, 10 principles for the KING COURT REPORTING SERVICE 45 1 administration of the public defense delivery 2 system. 3 We have been extremely fortunate in being 4 able to have with us two individuals who I think 5 are probably the preeminent spokespeople and 6 experts on indigent defense standards in the 7 country, and that's Jim Neuhard and Norman 8 Lefstein. 9 I am going to be inadequate to the task of 10 making their introduction, but I'm going to give 11 it a stab and leave out a lot of very impressive 12 stuff. 13 Jim Neuhard is currently the director of the 14 State Appellate Defender Office in the State of 15 Michigan. For the State of Michigan it's probably 16 also the trial level public defense system, as I 17 understand. 18 MR. LEFSTEIN: We only do appeals. We're 19 separate. 20 MS. HOLMEN: I first met Jim when he was the 21 president of the Initial Legal Aid and Defender 22 Association, which is the national trade 23 association, if you will, of legal aid and public 24 defender programs. 25 And Jim was a real leader on this issue in KING COURT REPORTING SERVICE 46 1 that context, but he has been a real leader on 2 that issue. He has served on the American Bar 3 Association's standing committee on legal aid and 4 indigent defense, which we commonly call SCLAID. 5 He is currently a member of the U.S. Justice 6 Department's advisory committee for indigent 7 defense, and an advisor to the Department of 8 Justice's compendium of national and state 9 criminal defense standards which put together that 10 article or that item, the pink tab. 11 He has written and spoken widely on public 12 defense standards and is really one of the 13 principal architects of the American Bar 14 Association resolution, which he's going to talk 15 about. 16 He's also going to talk about a recently 17 released today, released today, study of public 18 opinion about the public defense system, which I 19 think you'll find very, very interesting. 20 Normal Lefstein is the Dean of the Indiana 21 University law school. As he said, and I just 22 learned yesterday, that he actually went to the 23 same law school that I did, and so we're products 24 of the -- 25 MR. LEFSTEIN: I didn't know that. KING COURT REPORTING SERVICE 47 1 MS. HOLMEN: Yeah. But we're products of 2 the Midwest. Dean Lefstein has been a public 3 defender. He has been a U.S. Attorney. He has 4 been with the Indiana University as Dean since 5 1988. 6 And, again, accomplishments too numerous to 7 mention, but in this, as relevant to this issue, 8 he has chaired the ABA section of criminal 9 justice, he has been a reporter of the association 10 of ABA standards relating to the prosecution and 11 criminal defense function, he has served as chair 12 of the ABA on criminal defense standards; he has 13 authored many books and articles. Among them 14 criminal defense services for the poor, published 15 by the ADA. 16 He is currently the chairman of the Indiana 17 Public Defender Commission. He has been for -- in 18 his third term appointed by two different Indiana 19 governors, and he's also a member of the SCLAID 20 Committee. 21 And so I get to see both, Norm and Jim, 22 three or four times a year, and I'm very fortunate 23 to be able to do so. 24 Norm is going to talk about all the 25 different kinds of standards that there are and KING COURT REPORTING SERVICE 48 1 say a few words about the ABA standards and help 2 us to see where we ought to go on this issue. 3 Jim, do you want to start? 4 MR. NEUHARD: It's always an interesting 5 question, but I wanted to mention and start with 6 it's a pleasure to see my friends here, Bill Ide 7 and certainly I know Steve, Mr. Bright. 8 My first assignment when I clerked for 9 Michigan's Supreme Court was the Court was moving 10 out of the State Capitol and into its exodus 11 towards its own building, which is opening in a 12 year after three years, but my assignment was to 13 research the history of the capitol. 14 This is where these great justices have sat 15 back two centuries, in the 18th century, and what 16 I did was I went out to the history of the 17 building and I found out that it was a historical 18 building that Michigan had that was copied in 19 about 13 states, and when I came to testify I was 20 walking up the hill and there was an exact copy of 21 our capitol building, and then I walked in and met 22 my friends, and it's nice to be here. 23 MR. IDE: A copy, too. 24 MR. NEUHARD: The copy design came from a 25 known architect and it was written up in Harper's KING COURT REPORTING SERVICE 49 1 Weekly, and it was a national competition and that 2 architect won. 3 But one of the things that I had, one of the 4 first questions that I was asked when I went over 5 to be head of the public defender service back 6 then was a very revealing question asked by the 7 legislature, and it sort of set the tone for my 8 attitude and what I thought the questions that we 9 had to answer is in the real word, and once you 10 start going over and start asking for funding he 11 said, "Let me get this straight. I've got to pay 12 to catch them, I've got to pay to lock them up, 13 and I've got to pay you to get them out?" And he 14 said, "Tell me about that." And he said, "Pardon 15 my French," and he said, "Ain't no goddam vote in 16 that." 17 I tell you, that's driven my attitude ever 18 since, and so I'm going to talk today about that 19 experience. 20 Phyllis asked about the same principles 21 which you have before you, and why there is 10, 22 and there is a story in that, too. 23 And so this is sort of 30 years that I've 24 been on, as I left the Court, and on my own 25 journey to this room today. If you'll look in the KING COURT REPORTING SERVICE 50 1 10 principles you'll see a section on the second 2 page of the report on the ABA House of Delegates 3 about the foundation for why we did this. 4 The real foundation, and it began with the 5 -- well, it began before that, but my position 6 began with the president of the advisory 7 committee, which was in the late sixties following 8 the riots in the late sixties and sort of 9 re-examining it and the public defense system. 10 And I didn't serve on that, a friend of mine 11 did, and they were coming up as best they could 12 with some structure. Understanding what the 13 lawyers do, we came up with some numbers. 14 That discussion began, and they wanted to 15 come up with a number, and that number wasn't to 16 be arrived at, and the process doesn't really 17 matter, and that's how it began and I have been 18 done tons by these and I had more data than 19 anybody has. 20 From that we had the study commission on 21 indigent defense services, and I should have the 22 books here. I was going to bring them, but I 23 couldn't carry them. 24 We did this in one meeting. We just stacked 25 them up and let me say we were about this level KING COURT REPORTING SERVICE 51 1 for the first one president's study commission. 2 The compendium of the services will begin here, 3 and Norm did the work -- is that one of the red 4 books? That whole series would take you up to 5 here on criminal justice, which is buried all 6 through it a variety of issues that's been 7 revised. That would take you up to here since 8 then. 9 I participated as a commentator on those. 10 People were reacting to them in the various 11 positions that I was in. And so we had the annals 12 of ABA beginning standards, which was specific. 13 Back then there was a moratorium and there 14 were no death cases, but we wrote appellate 15 standards, performance standards were begun, and 16 the contract standards was a very popular service, 17 a way of providing services. It was unregulated, 18 and then the death penalty standards came along, 19 the very specific juvenile standards were done. I 20 didn't have them put in the juvenile, but I had 21 them in all of the rest of them. 22 Following that we had executive sessions at 23 indigent defense at Harvard, monitored along, 24 looking at the defense services, looking for a way 25 to try to put them into the next century. KING COURT REPORTING SERVICE 52 1 The way of the community police is looking 2 at catching the bad guys finding, ways to make 3 them more integrated into the community than they 4 were before, and perhaps having a very profound 5 effect on distribution of crime, and the incidence 6 of crime, and the amount of crime. And so we 7 began that process. I have a story about that, 8 too. 9 Following that somebody said they wanted the 10 Justice Department to put together a grant to pull 11 all of these standards together that are on the 12 ground. All of the states have implemented them, 13 the courts, the counties, and the defense 14 commissions, along with the national standards. 15 And so that process began by one of the 16 beltway, we call it the beltway bandits around 17 Washington. They got the grant and they didn't 18 know anything about it, and they brought in people 19 to bring them together. 20 And I'm telling you, the pile at this point 21 literally would be up here written by lawyers for 22 primarily lawyers, Judges, people who are in the 23 arcane way that we happen to talk about our 24 thinking. 25 Parallel to that, I have been running the KING COURT REPORTING SERVICE 53 1 indigent defense programs. I have been doing 2 evaluations of programs. I appeared before the 3 commissions like this, offices, teaching, 4 training, and when I was coming here I said okay. 5 I got down to principles. How can I really make 6 it short to get my point here to try to boil the 7 10 down to make it even shorter? 8 And in that process you get five minutes to 9 make your point and if you're sitting in front of 10 a legislature you may have some schmoozing, and 11 you do all of the old boy networks and girl 12 network that you are doing, you sit down and you 13 get out and they all boil down to one piece of 14 paper. 15 And the question my mentor in the Supreme 16 Court always asked me is when I was arguing before 17 the Court when I was going to the Supreme Court 18 arguing, and I said how should I do this? And he 19 said tell them what's broke, tell them how to fix 20 it. And then he says how do I know what to do? 21 Lawyers know that. He cites cases he cites 22 constitution. Tell them what's broke and tell 23 them how to fix it. 24 And so I went in with a specific issue and I 25 was given the standards of the legislature. KING COURT REPORTING SERVICE 54 1 Thinking about that and was walking in and giving 2 that and expecting to be ready, and at best a 3 clerk might look at it and so that was the test. 4 And I had the task of writing these 5 standards of trying to get it boiled down and so 6 we went through the compendium and we're sitting 7 in a room and I said, this is ridiculous, what's 8 the point? Who is going to go on the Web other 9 than a lawyer? 10 I mean, if we're really trying to have a 11 profound impact we want to get all of this work 12 out in front of people and literally be able to 13 put it in front of people and hand it to someone. 14 And so somebody said, and I've been harping 15 on this one some. Maybe it's time for you to 16 write your Ten Commandments as an entry document 17 into these standards. And its the last thing that 18 I needed, and so I said who am I to take these and 19 boil them down to 10? And I meant that honestly. 20 How do you take and pick these 10? 21 It was very interesting, and so I went to a 22 roundtable meeting of an emerging group of defense 23 lawyers, and I mean this from the sense that they 24 were not elected, they were literally voluntarily 25 people coming in, counsel, public defense, KING COURT REPORTING SERVICE 55 1 contract defense, large programs, small programs. 2 And I went in and I had a process with them 3 on several different occasions, several different 4 ways, but essentially part of thinking of my 10, 5 that I picked out 13, 14 at that time that I 6 thought were important, took them, picked from 7 them and then came back and came back to this 8 process parallel to it and came out with it. 9 And I said 10 is important, you've got to 10 have 10. They never understand that it's 11, but 11 we got it down to eight at one point, and got it 12 back down to 12, and then when I went to ABA the 13 issue came up where Commandments might get its own 14 level of attention that we don't need. 15 But the process took three years. Each of 16 the sets of standards that I referred to that you 17 see listed out there probably took a minimum of 18 two to three years to process. Generally going 19 from a final to the ABA house of delegates, and 20 that goes to all of the commissions of the 21 American Bar Association and groups, but the 22 process is long and often had hearings associated 23 with it. 24 These went through a similar process, but a 25 much broader since of people looking at it and KING COURT REPORTING SERVICE 56 1 fighting. These were fought every step of the 2 way. People saying is this the most important or 3 not the most important? But I kept reminding 4 people what the focus of this is from the 5 standpoint of the policymaker and the funding. 6 They can look at a system and say it's 7 broke, and the documentation is in footnotes to 8 the various sets of standards and they in turn 9 have the case law statutes, court rules, whatever 10 it might be, but they're linked to the canons of 11 that professional rules of conduct. That's where 12 the foundation comes out of, but these breed into 13 the real word and are used from the standpoint of 14 a funder looking at it generally or a policymaker. 15 Now, the test on this was, as I mentioned in 16 the executive sessions, you may remember before 17 the last presidential election the Texas system 18 came under an immense amount of scrutiny. 19 Part of this process was a man named Tony 20 Fravella who was a layperson, was a very bright 21 man, but was involved in the Texas criminal 22 justice and primarily economic developments on the 23 criminal justice issues for then President Bush. 24 And he kept saying as we were sitting around 25 all of these leaders, I don't get it, why are you KING COURT REPORTING SERVICE 57 1 criticizing Texas? How do we know it? How would 2 you do it in the counties, something that big? I 3 think it's a matter of opinion. 4 And so I went back up to the room, and we 5 were writing the Ten Commandments, and he looked 6 at it and at this point it was the current 7 version, just footnotes and a few sentences under 8 each one that were in progress, and he stood there 9 while the session was going on and he looked up 10 and he said, I get it. It's broke. Because they 11 were concrete. 12 We talked in terms of 24 hours from the 13 point of request for counsel to getting counsel. 14 There were six months at that point in many 15 counties on average, and he says I get it. Well, 16 the story is, I mean, you may know Texas has 17 passed this Public Defender Act. 18 A lot of the stuff that is in the 10 are now 19 in their statute because they were funded in a lot 20 of the stuff that's in these, but that was the 21 touchstone to me that it worked. 22 I have taken it up to my legislature. We 23 now have our own Commission going very similar to 24 yours. These things are written for people who 25 are very busy, for commissions who often have KING COURT REPORTING SERVICE 58 1 laypeople on them, for people who don't have time 2 to go through them but you can get through these 3 pretty quickly, and so that's a long story. 4 The other issue was what's the orientation 5 of these? What are they talking about? 6 When most people sit around and talk about 7 it who ask people who are in the business in one 8 form or another, what's the most important part of 9 what you do? 10 If you had to sit here and say how would you 11 prioritize the needs of the evaluations that 12 you've done out in the field? What are the other 13 critical issues that make a difference in terms of 14 the people that you see in the courtroom? What is 15 their mind-set? What do you think matters? 16 Questions asked, take these 10 and boil down 17 to four for a quality program, you're going to 18 find these in one way or another the first thing 19 is it's independent. 20 Now, by independent you're still a creature 21 of the government. I understand by the power of 22 taxes, power of the government, we all know what 23 effect they can have. 24 Now, independence doesn't mean that you go 25 into a bomb anymore than a lawyer does. You're KING COURT REPORTING SERVICE 59 1 under the same structures of the Judge. I don't 2 mean those kind of bomb throwing indigents. I 3 mean you believe going in and believe you can do 4 whatever you can do in that courtroom if the Court 5 calls for it, but that sense of independence on 6 the part of the lawyer that they're freed from 7 getting another assignment, my fee is going to get 8 cut, I'm going to get fired, my budget is going to 9 go down the drain, or the Defendant will get fired 10 if they stand up to their lawyer. The feeling of 11 independence. 12 The second one is an unusual one which I put 13 No. 3. I just call it independent and then pay. 14 This doesn't lead to a word, but it's pay. 15 In your sense of self-image and self-worth, 16 how you're paid compared to other public servants 17 who have law degrees providing services to the 18 county. That has a lot to do with where you rank, 19 and self-image. It has a lot to do with turnover. 20 Now, if you have a high turnover in the 21 program you're constantly training people. You 22 always just have inexperienced people going 23 infrequently prioritizing cases, and they work 24 their way up the ladder. 25 That is how juveniles have been treated. I KING COURT REPORTING SERVICE 60 1 think that we've paid an enormous price because we 2 have not had good lawyers trained with how to do 3 this. Felonies with the start of the case, felony 4 murder trials were the best and that's one case 5 out of the thousands. Everything else moving 6 through. 7 I mean, my best person that I put in my 8 guilty plea appeal unit, she is now the chief in 9 the Judge's office and she stays in the law of 10 sentencings. She has made more of a difference in 11 our state than anybody else. She was terrific, 12 and she knows sentencing, and so I think we made a 13 lot of mistakes by prioritizing the most important 14 cases and the least important case. 15 Finally, recruitment. I mean, it starts 16 with who you get to walk in the door. Who you 17 recruit. And so recruitment turnover, self-image, 18 those are critical things about having a good, 19 healthy, office. I'm not talking about a lot of 20 money, I'm just talking about parity. Workload. 21 Pay is more important than workload. Some 22 people do terrific jobs for a little money. 23 Workload is the same issue, turnout, turnover, and 24 et cetera. 25 And, finally, mentoring. In some form or KING COURT REPORTING SERVICE 61 1 another, mentoring. Who do you work with? The 2 people you work with generally sets you for the 3 rest of your life. The rules, the work habits, 4 how you bill. 5 The 10 principles themselves is worth 6 looking at. There is no long commentator. There 7 is footnotes. If someone wants to tease and go 8 back to these documents and establish one on their 9 own if you want to do the work. 10 Independence is how to pick and how to pay 11 is at issue, but a lot of pleasures that you see, 12 a lot of scandals that you see come out where the 13 Judges do control the contracts, and they do 14 control the appointment, and then they're elected 15 to office. 16 Frequently, almost inevitably you see issues 17 coming back where the judges themselves get paid 18 in some way politically. The court administrator 19 follows the money before they follow anything else 20 if they find out that the Judges are handing out 21 appointments for certain campaign contributions 22 and the like. 23 I have not heard in all of my history the 24 Judges who fought to keep the appointment process, 25 and they wanted to keep the money, and the good KING COURT REPORTING SERVICE 62 1 Judges wanted to make sure that the processes have 2 good Judges on them. 3 I have not heard anybody want to go back the 4 other way once they've gotten out of the 5 appointment process. Invariably the Judges are 6 very happy not to have the grief that comes with 7 that, appointments that comes with that, also the 8 administrative duties that come with that, but 9 independence the most. Thank you very much. 10 MR. KURTZ: Mr. Ide. 11 MR. IDE: How do you see the Judges who have 12 been doing it right? Because they take it 13 personally that way. 14 MR. NEUHARD: Well, there is no way that the 15 transition of any form is going to cause the 16 level. You're going to have fall-out from it. 17 And if you think of the bell curve when I talk 18 about a great system I'm not talking about a 19 lawyer being more or less a Steve Bright in the 20 courtroom. You don't design a system like that. 21 You design it for the average person that 22 you're going to have in the courtroom and the 23 average person is trying to get Judges that 24 provide representation. It's a daunting task. 25 It's a different system where you go, and so KING COURT REPORTING SERVICE 63 1 you've got to design from there. 2 And there are systems, assigned counsel 3 systems where the Judges have a list, and the 4 lawyers have a task, a committee of Judges and 5 practitioners on the list, they are ranked 6 according to the superiors and so are the cases, 7 and in some control you've got to get fair chances 8 to all the lawyers and choices that you make. 9 They aren't somebody that is perfect, but do 10 provide some use of the private bar and let the 11 Judges participate. 12 MR. IDE: Question: You say these are 13 non-partisan boards. I assume if you have 14 uniformed standards it's not critical whether you 15 have good -- 16 MR. NEUHARD: It depends on the structure 17 you use. If you chose the county based system 18 where policy is made and money is distributed it 19 may be that politically it makes sense to have the 20 board on the ground. You can have both, a state 21 board and a local with both County Commissioners. 22 MR. IDE: As long as you have standards that 23 everybody else understands. 24 MR. NEUHARD: That's right. And the 25 selection process of a chief defender. That could KING COURT REPORTING SERVICE 64 1 be an assigned counsel. That could be a contract 2 attorney. That could be a public defender in the 3 classic sense. 4 However that's made, it may be important in 5 the politics and the jurisdiction and the needs of 6 that jurisdiction to have the people in that board 7 locally. 8 You can have some jurisdictions have it and 9 some don't. There is flexibility in there as long 10 as you have the principles that allow you to 11 tailor it to the local needs. 12 The second is the mixed system. I have a 13 mixed system. In my office we don't do 30 percent 14 of the appeals. We have deep involvement in the 15 private bar, probably too many. Strains are 16 incredible on it, but nonetheless that's the 17 structure, but the course of what my office 18 provides is enormous to the bar. 19 We have brief banks, we have private 20 sentencing banks. We have the ADA that do the 21 research. We take it, we put out newsletters to 22 the lawyers, almost 2,500 lawyers at all levels. 23 Now, do we support the private bar through 24 the state taxpayers' money? We are, ourselves, 25 public. We even provide bench books for the KING COURT REPORTING SERVICE 65 1 Judges on sentencing and on trial practice and 2 taken -- we're online. You can get the stuff any 3 time of day. You can download it, you can print 4 it, you can put it on disk, you can do anything 5 that you want with it. 6 We provide lots of materials for the 7 lawyers. We have online training tapes, video, et 8 cetera, you can do online. We support a server 9 that supports 1,000 lawyers who talk to each 10 other. Lawyers of small towns. Lawyers that we 11 talk to. 12 MR. KURTZ: Your office does 30 percent of 13 the total indigent caseload? 14 MR. NEUHARD: Total appellate caseload. 15 MR. KURTZ: Total appellate or total 16 appellate indigent? 17 MR. NEUHARD: Indigent. There is not much 18 difference. 19 MR. KURTZ: And how is it divided? 20 MR. NEUHARD: We have a very regulated 21 system. We have it all online. We have an 22 assignment. The list rotates depending on the 23 complexity of the case. The lawyers are screened. 24 At our case state level they're screened 25 statewide, and then the lawyer, the name is given KING COURT REPORTING SERVICE 66 1 to the Judge and the Judge makes the appointment. 2 MR. KURTZ: So it works out 30 percent 3 because Judges appoint 70 percent private? 4 MR. NEUHARD: Politics. That's a political 5 line in our state. It has nothing to do with 6 reality. If you wanted a good mixed system in our 7 state. 8 MR. KURTZ: It would be 70/30? 9 MR. NEUHARD: Or somewhere around there. 10 And the private bar as a general rule doesn't want 11 to handle the capital cases, the big cases. We 12 don't have the death penalty, but we have the big 13 cases, the front page cases. They're not going to 14 make the money. There is caps and all kinds of 15 reasons that they're not going to get paid, and so 16 we're the safety practice. We call ourselves the 17 insurance policy for people. 18 MR. KURTZ: So the Judge can appoint whoever 19 he or she wants. Sometimes it might be your 20 office and sometimes it might be private? 21 MR. NEUHARD: At the state level they can. 22 The list rotates at the state level. The question 23 was asked here, what's going on in the counties in 24 Michigan? The bigger counties have a betting 25 list, like Oakland County, which is a very KING COURT REPORTING SERVICE 67 1 wealthy, very conservative suburban county to 2 Detroit. 3 They have a list, and each level of case has 4 its list, and within that list the Judge has 5 discretion to pick whatever lawyer they want 6 provided. They don't pass a certain cap and a 7 certain range of months. They are limited to how 8 many they can give to one lawyer, but they have 9 discretion on that list. 10 MR. KURTZ: And the public defender is on 11 that list? 12 MR. NEUHARD: On the county level there is 13 no public defender, but we do in a mixed system. 14 I think it's a healthier system in the long run. 15 Efficient if we don't want the private bar out of 16 this work. 17 It is critical for the health of this system 18 that there be this mix at any one time as far as 19 people who understand what's going on with the 20 system. 21 The competition is great. We have a 22 terrific relationship with the trial bar to 23 provide them all of these materials even though 24 our role is to say somebody made a mistake, the 25 Judges, the prosecutors, the defense lawyers, KING COURT REPORTING SERVICE 68 1 that's what we do on appeal, but we do have a very 2 good relationship with them and we're very 3 aggressive with what we do. 4 MR. KURTZ: And so it's your position, that 5 especially in a big county, there should not be a 6 public defender, a full-time, 100 percent public 7 defender with the only exception of being 8 conflicts? 9 MR. NEUHARD: Correct. 10 MR. KURTZ: Okay. 11 MR. IDE: You're saying there should be 100 12 percent full-time defender? 13 MR. NEUHARD: Correct. And I'm a full-time 14 public defender. 15 MR. DUBOSE: But you don't have 100 percent. 16 MR. NEUHARD: That's right. In many 17 counties in California and Arizona conflicts are 18 held by a second public defender. In Cook County 19 they cut the offices in part. 20 MR. KURTZ: They have a conflict office? 21 MR. NEUHARD: Under the same director, which 22 is bazaar. 23 MR. KURTZ: Like Arthur Anderson, sort of? 24 MR. NEUHARD: These are made for all three 25 mechanisms, whichever one that happens to be KING COURT REPORTING SERVICE 69 1 chosen and used. 2 And I heard people say well you can't use 3 conflicts. Contracts are terrible. Well some of 4 the best offices that I know are full-time 5 defender offices, but they operate under a 6 contract. They're terrific offices. There are 7 defender offices that use contracts that are 8 state-wide programs in rural counties because 9 there is not enough volume there. 10 To make another point -- I have to digress 11 to make a point. There are two problems with the 12 assigned counsel. One is taking as many cases as 13 they get and the other one is called the someone 14 else syndrome. They take the case that someone 15 else doesn't. 16 I had one case, Bob Ponberg is in Detroit 17 right now in one of the systems, the one lawyer 18 didn't even know and he says to the client, who 19 are you? Oh, I'm the other guy's boss. And he 20 gets credibility. 21 But there are two problems with assigned 22 counsel. One is you get too many cases, the other 23 one is you get too few. Too few is your problem. 24 If you require experience to go up the list, if 25 you don't get enough to warrant being in criminal KING COURT REPORTING SERVICE 70 1 work, a lot of work is assigned and so you stop 2 doing criminal work. 3 It's important to have control of the number 4 of lawyers on the list, too, to make sure that 5 there is an adequate amount of work. If someone 6 is going to Detroit for business, if you're going 7 to take someone's CLE hours and you've got a 8 private or mixed practice, where are you going to 9 put your time? You put it in the best chance that 10 you think of getting clients. 11 And so one of the solutions here is to get 12 the contracts. Mature lawyers get the work in a 13 small community or even a suburban community, and 14 so those issues of understanding or managing a 15 resource of lawyers and you want professional 16 lawyers requires you to think about the numbers on 17 the list in more than one way. 18 The third and fourth standard is really 19 linked together, which are screening for 20 eligibility. We found there is a lot of 21 resentment. Everybody is filing indigent because 22 these people should be retaining lawyers. It's a 23 matter of eligibility. 24 And there are a lot of people who can afford 25 partial payment in some form and that isn't being KING COURT REPORTING SERVICE 71 1 dealt with. And so good screening is a lot of 2 this, and it's got to be prompt, and the lawyers 3 have to know that there are a lot of places, and 4 they've got a request for counsel but the lawyers 5 can put it in in one county jail. 6 One county in Michigan, they took three or 7 four or five days to get there before they even 8 knew that the person was in jail. 9 In St. Louis the problem was so disorganized 10 that we went in there, the sheriff had sued for 11 additional attorneys because of overcrowding. 12 They found that they moved the people and got the 13 hearings done when they should have been done; 14 that they didn't need the jail. 15 And so he was in part of the lawsuit for 16 more lawyers, and this gets to more planning, and 17 this gets into a plan more than they don't want 18 the defense at the table when they talk about 19 systemic issues. And think about that. That's 20 the reason that they're there. 21 If you don't plan a system by having one of 22 the people, the most obstructionist one at the 23 able, it really makes a difference in planning. 24 You want to get people in there to talk about 25 efficiencies that can be done in your ROR KING COURT REPORTING SERVICE 72 1 screening, or release and recognizance in bond 2 hearings. These things make a huge difference in 3 the cost of managing. 4 The fourth one deals with things that we 5 seen out in the field, which is a confidential 6 space to talk to your clients. 7 Those in big cities know what it's like to 8 see your client when you haven't seen them 9 anywhere in the bullpen other than in the court 10 and in the hallway. You want to get that process 11 going. 12 The fifth one is workload. It's not 13 caseload, it's workload. The standards that you 14 see that talk about misdemeanors, juvenile, they 15 come from a rudimentary sense of workload 16 distribution. We all know that we can do more of 17 one than the other. 18 Well, within other cases there is a bell 19 curve of work. The law, of course, takes over, 20 but there is workload that you want to look at for 21 a lawyer, and there are two types of workloads: 22 The cases that you take, and then if you're no 23 contractor you're in private practice. 24 There are other things that delegate. You 25 might be a manager. You're doing nothing but a KING COURT REPORTING SERVICE 73 1 certain type of case. And so you do look at 2 workload, and you look at your resources 3 supporting it. 4 It does make a difference if you have no 5 investigators who do have law clerks and you have 6 support services that allow you to get the work 7 out and allow you to handle more cases, and yes it 8 does effect the numbers. You call them. 9 But workload is the key issue, balancing 10 workload, and these numbers are not -- all of this 11 makes up a full case for the lawyer. The maximum 12 that you do is 150 felonies is the target that 13 you're looking at, and that number can go up or 14 down, but it's a target that you look at the 15 system is how many lawyers that you provide in a 16 service divided by these and you see the numbers 17 in a bell curve who can turn out your work in 18 terms of getting cases to the Supreme Court. 19 The fastest lawyer that I ever had contact 20 with was Carl Sagan. Brilliant. I don't design 21 it for someone like that, I design it for the 22 middle of the bell curve. 23 The other issue is matching the work of a 24 lawyer, the lawyers in the case. Having a system 25 that gets experienced lawyers complex cases, and I KING COURT REPORTING SERVICE 74 1 mean that juvenile. I'm not separating out the 2 level of the case. I am making sure the lawyers 3 are experienced enough to handle it. 4 The other is representation, the way to move 5 a lot of cases. People found representation or 6 have standing counsel, but if you think about the 7 way that -- the primary relationship with the 8 client, that is the paramount issue. You have a 9 system that tries to have that happen. 10 You all have sicknesses and illnesses and 11 events that prevent it from happening, but if your 12 system can't do that on a regular basis it's 13 broke. For example, if you've got a District 14 Court that isn't with the District Court, or a 15 mental health facility, or one lawyer who is 16 trying to make all of those, you're going to get 17 delay where that lawyer tries to be in all of the 18 cases at one time. 19 That workload can't be done in all 20 circumstances and so you want to pay a lot of 21 attention to the fact that you don't need stand-in 22 counsel to finish it. I've seen stand-in counsel 23 used to do suppression errors that knew nothing 24 about the case. I have seen lawyers try to do a 25 day at trial standards. KING COURT REPORTING SERVICE 75 1 The eighth one is the most important one and 2 I won't go through -- well, not the most 3 important, but it is the one with a lot of detail 4 and disparity issue. It's not just pay assigned 5 counsel. It isn't some abstract at the federal 6 rate paid at every district in the nation, but 7 it's looked at whatever overhead runs in that area 8 and that's an expense with a reasonable fee on top 9 of it. 10 It's not saying matching the going rate, but 11 that's a core. The rates should match what is 12 going on in that county for running a business. 13 Contracts, we obviously have a lot of 14 factors to consider in there, but you don't say in 15 there some people do the conflicts are paid out of 16 the contract. It's a disincentive to finding 17 conflicts, actually. 18 You don't use that particular rate for pay 19 for investigation services. That's a separate 20 cost, and you've got to look at it in standards 21 for making that out. 22 The last two standards talk about CLE. It's 23 not just CLE, as I said before, but it's JLE 24 germane to the area in which you've assigned this 25 lawyer to practice whatever their system is that KING COURT REPORTING SERVICE 76 1 you're getting CLE and the state providing it in a 2 reasonable way. 3 My reason is the criminal defense training 4 that you need is there is no money in there. 5 They're redoing drunk driving and some other 6 areas, but as a general rule their CLE is not 7 provided it. They've got to leave the state and 8 go elsewhere to find it in the depth that they 9 need that matters to them the area that they've 10 chosen to practice. We want to make sure that the 11 programs are there and the area that is required 12 to get training in that area. 13 And the last is supervision of the system. 14 This is under the green tab. Systematic way. And 15 plus the fact they're getting what they're paying 16 for. 17 Now, remember, this is a service where the 18 clients can't vote for a fee. There is no free 19 market out there. This one the state is providing 20 the system and they have an obligation to meet 21 these first nine and then go in and see if it's 22 worth it. The client can't fix it by themself. 23 And so this is where the 10, where they came 24 from. Today in Washington they're releasing the 25 survey, and that's the last thing. If you're KING COURT REPORTING SERVICE 77 1 going to go to a fund and the issue is a goddam 2 vote in it, then we're wrong. 3 The issue is the focus group and the way 4 that I was presenting my vote. We get so many 5 reversals and sentencings, the cost of jail time, 6 prison time that we take off is three times our 7 office's budget. Does that move you? 8 I mean, we find that kind of error. We 9 thought that was a good issue. We don't need a 10 new jail if you have an efficient public defender 11 system. That's a pretty good one. 12 We've gone right at the issues of the case. 13 Well, what we didn't understand is the background. 14 The American public is concerned about that, 15 concerned about money. That issue is costly for 16 building a new jail. 17 The public has a certain tolerance and ways 18 of looking at things. Ironically, what we found, 19 and when we read this survey overwhelming in the 20 focus that we did, the issues that matters to 21 them? 22 Oh, we also brought up the new issues of 23 public defenders being involved in successful 24 sentencing for clients in jail; that we don't just 25 go in and get our clients out. They should have a KING COURT REPORTING SERVICE 78 1 lawyer provided by the government that's ingrained 2 in that sentence; that fairness matters. 3 The rich shouldn't have good lawyers and the 4 poor not. Legal representation should be 5 competent representation, private or assigned. 6 This article defines competent representation of 7 lawyers as having the necessary resource to defend 8 their clients and a reasonable caseload. 9 The recognition of the rights we have, being 10 informed of the charge of 97 percent, this has a 11 plus or minus error rate of two percent. Having a 12 lawyer, 95 percent. Having a lawyer appointed and 13 paid for, 88 percent. Speedy trial, 85 percent, 14 remaining silent, 81 percent. 15 These are the basic rights of Americans. 16 The finding of competent counsel resources to 17 obtain DNA testing and other laboratory services, 18 94 percent to the American public, 68 percent 19 should be guaranteed. 20 Remember, if you pass 54 percent you've got 21 a good election. To provide a defense a lawyer 22 with a small caseload, 57 percent. Resources to 23 hire, investigate, 55 percent guaranteed. 24 A lawyer with experience in defending people 25 accused of similar crimes, eight percent is not KING COURT REPORTING SERVICE 79 1 important, 48 percent guaranteed. 2 Resources to hire expert witnesses, 40 3 percent important, 43 percent guaranteed. 4 Give Public Defenders and prosecutors the 5 same resources per case, nearly two thirds agree 6 with proposal. Strongly agree 64 percent. 88 7 percent support overall. 8 Establish legal oversight, 60 percent 9 strongly favor, 27 percent favor. 10 Establish standards and national standards 11 and qualifications for public defenders and, 54 12 percent strongly favor, 24 percent favor. 13 38 percent reject the idea of Judges and 14 local governments appointing counsel based on 15 which lawyer cost the least. 16 And then there is the reasons for the public 17 support. This is where they came up with the 18 fairness. The quality of justice a person 19 receives should not be determined, 88 percent 20 saying this is convincing, 74 percent very 21 convincing. 22 Providing competent legal representation 23 necessary to prevent innocent people from going to 24 jail. 93 percent convincing, 72 percent very 25 convincing. KING COURT REPORTING SERVICE 80 1 Ensuring rights and a fair society. 2 Providing competent legal representation is one of 3 our most fundamental rights in the United States, 4 88 percent convincing, 65 percent very convincing. 5 It's a part of our self-image. 6 When you hear American officials overseas, 7 as I have, speaking of our system this is what 8 they talk about. They are if you're charged with 9 a crime you have a right to a lawyer. I mean, it 10 is fundamental by the way we talk about our 11 lawyers overseas. 12 Ensuring competent legal representation for 13 all is necessary for our legal system to function. 14 89 percent convincing, 60 percent very convincing. 15 This is what we all use in our daily life, 16 but more by the grace of God, I think. Some day 17 you or someone you know may need the help of a 18 public defender, 76 percent convincing, 49 very 19 convincing. That wasn't the very reason. The 20 reason transcended that I might need someone. 21 So I have given these out. There is a lot 22 of data and charts behind it, but I think these 23 were tailored coming out of the focus groups that 24 sort of mind into what the image of the public is 25 and how those issues should be talked about, which KING COURT REPORTING SERVICE 81 1 does resonate. 2 MR. GRIFFIN: This is should the government 3 pay, and regrettably the public says the 4 government puts it over here. There is not a 5 question in here about would you pay additional 6 taxes to support this system? And that seems to 7 be the crux that we seem to be getting in, but 8 nowhere would you as a citizen pay more, pay more 9 taxes. 10 MR. NEUHARD: I think that is in here. 11 MR. GRIFFIN: Is it? 12 MR. NEUHARD: I think it is. Let me just 13 look at it for a second. 14 MR. HOLMES: I believe on the first page of 15 the amended question No. 2. 16 MS. HOLMEN: It says taxpayer dollars. 17 MR. GRIFFIN: Again, that's not the issue. 18 People support using taxpayer dollars for 19 everything. Would you pay additional taxes? 20 Which is an entirely different question. 21 MR. KURTZ: Yeah. Taxpayer dollars assumes 22 that there is this pile of money out there. And 23 ask him if he's willing to increase the money. 24 MR. NEUHARD: For the most part of the 25 general statement that I got from the legislature KING COURT REPORTING SERVICE 82 1 is the public doesn't support doing this in a vote 2 in it. 3 And so I think that, but it's the 4 impression, no, that the general public is out 5 there supporting fundamental fairness. And it may 6 be and it's where am I going to take the money 7 from? I don't question the priority list that 8 this is going to come out before the police folks. 9 Public safety maybe higher than that. That might 10 be an interesting question to ask, but -- 11 MR. GRIFFIN: But that's the crux of the 12 problem that we face in this state. 13 REPRESENTATIVE HOLMES: I thought it was 14 interesting that about 70 percent considered 15 themself middle to write politically, 16 philosophically, or whatever. 17 MR. NEUHARD: Right. There is a lot of 18 surprising stuff. The details behind it, it's 19 refreshing to read. It opens your mind a little 20 bit about how difficult it is and what perhaps 21 when you -- I would recommend doing one of these 22 in Georgia. We're going to do one in Michigan. 23 We're going to take this and tailor it to 24 the needs in Michigan to address our issues that 25 we've heard, and I think that would be one that KING COURT REPORTING SERVICE 83 1 you would want to ask and see if you want to talk 2 about that issue in a way that's less threatening 3 if not convincing. 4 JUDGE BIRCH: You've been in there a long 5 time and you've studied it, and all of that focus 6 seem to be in convincing legislatures, that branch 7 of government, but to what extent has litigation 8 challenging systemic deficiencies of a 9 constitutional magnitude been successful, and why 10 haven't they been brought more often? 11 And to what extent are they successful and 12 to what extent does politics for elected appellate 13 officials influence this, based on your long 14 experience? 15 MR. NEUHARD: This is my first love is 16 litigation. I came here today to talk about a 17 very narrow part of it. In the large context 18 about systemic reform the assistance of the bar, 19 information that Norm chairs and I chaired before 20 Norm, it's a primary thing in providing 21 assistance, and the issue was lawsuits and their 22 impact on the form which I called creating a 23 crisis. 24 There are a lot of ways in which crises are 25 created and the form follows, and what you want to KING COURT REPORTING SERVICE 84 1 do is understand the biggest single cause 2 effecting the public most has been a crisis. 3 Innocent people are overloading the system, 4 or lawsuits. Lawsuits have been successful. I'm 5 going to give this anecdotally Marty maybe able to 6 give more detail. 7 There is two types, maybe three types of 8 lawsuits. One is called the fee suit by the 9 private practice, and these have been brought as 10 far back as 1850 in Michigan, the first fee suit 11 that I'm aware of. That is pretty far. 12 The most recent language began in two 13 places, in Iowa and in Alaska, the fee suit. The 14 one is the statute required the payment of a 15 reasonable fee in some form. They delegated that 16 to the Judge or the county or whatever. 17 The lawyers went in to find a reasonable fee 18 and almost invariably they came out and said 19 you've got to cover the overhead and then 20 something on top of that. 21 If the statute says you're entitled to a 22 reasonable fee and that is what's reasonable and 23 that's sort of simplifying it, that's what they 24 came out with. 25 The others that have been successful, and KING COURT REPORTING SERVICE 85 1 I'm going to say 75 successful suits have come out 2 of this was the unlawful taking of property, but 3 the lawyer's time has been found to be on the due 4 process, and to take the time or not to 5 compensate. 6 And due to the best lawyers who succeeded 7 they have been working every appointment where we 8 were told they were told this: I get a certain 9 amount of money or there were no caps or whatever 10 there may be in place for a capital case or 11 whatever. 12 And then they got -- they put a bill in and 13 they kept good hours and they kept good time, 14 which is not ordinary among defense lawyers, but 15 they had good hours, and they went into court and 16 said look, I've put in 2,000, or in one case it 17 was 853 hours and you paid me for about 30 hours. 18 They had a terrific case, and they went in and 19 brought the tax lawyers in and won. It was 20 unlawful taking. 21 MR. KURTZ: We had a variation of that in a 22 fee suit about maybe 10 years ago, eight years 23 ago, a Thirteenth Amendment claim. The same kind 24 of theory. 25 MR. NEUHARD: Well, this one has been very KING COURT REPORTING SERVICE 86 1 successful in other states. The overhead was a 2 cost that had to be covered under the cost 3 revision and then their fee, but the other type is 4 the systemic challenge, and they have been very 5 successful. 6 One of the reasons for it is the Sixth 7 Amendment. Essentially the best witnesses that 8 the lawyer provided in the service, and a lawyer 9 has got to come in and say I didn't do a good job 10 because I wasn't paid. Anybody ready to do that? 11 Mr. Pert, a lawyer in Louisiana, went into 12 court one day and said I can't do the work. It's 13 very unusual for a lawyer to do that; to stand up 14 and declare themselves ineligible. Their boss 15 didn't do it, an individual lawyer in the 16 courtroom. 17 Some way the system is so broke it's not 18 providing overall competent representation. A 19 massive undertaking is very difficult and not very 20 successful, and so those are the classic ways that 21 they've seen litigation. 22 MR. SHAPIRO: There has been some discussion 23 in this group about the caseload limitations that 24 we're currently using an upgraded modified version 25 of the ABA and the comments that we've heard are KING COURT REPORTING SERVICE 87 1 it doesn't apply to rural area, the Metro areas. 2 Outside of George. 3 And the second is the issue of money. And 4 there has been an application of the Ten 5 Commandments to this system in mind. Is there a 6 way -- and there is a lawsuit pending, the ACLU 7 has filed a lawsuit against the Governor in seven 8 counties in Montana for indigent defense -- is 9 there a way to apply the current practices? 10 MR. NEUHARD: The issue of the numbers, when 11 we're talking about providing the numbers, how 12 many lawyers do you need? That number has been 13 under more intense scrutiny and criticism than any 14 number that I know. Everybody is fighting, but 15 states like Wisconsin handled it. It's 150 if I 16 lose 20 percent. They just took it and added 20 17 percent is the number this they're going to use 18 for creating their budget for indigent defense. 19 People have done time studies, and I noticed 20 here 2,000 hours is not the average workload, but 21 it's closer to 1,600 hours, but sometimes studies 22 have come out wherever they've been done. These 23 numbers have been hit so close in all kinds of 24 contexts that we can't principally get off this 25 number. KING COURT REPORTING SERVICE 88 1 Yes, you can modify it 20 percent in any 2 direction if you don't have investigators, or if 3 you've got four courthouses in the city you might 4 as well, four counties in the circuit. 5 For example, to visit your client in jail at 6 any time during business hours is two hours 7 because of traffic. There are things that change 8 the number, but at any time they've gone on the 9 ground and tried to look at it there are other 10 adjustments in accommodations that you make, 11 again, without doing misdemeanors, death penalty, 12 doing other work, and you have to have a case 13 waiting in some way to say okay we're going to now 14 mix the caseload and look at it and in it you take 15 into account the local conditions. 16 But in a case to begin once it is approved, 17 resilient in any imaginable way to be resilient, 18 that's best that I can say, they have standards 19 written around how to go about case rating. How 20 do you do it? If you want to put time around 21 doing it, I highly recommend it or taking this off 22 the shelf. 23 I've done it in my office. My office is 24 different than 25 appeals, but I've got it based 25 on the type of appeal that's coming in and the KING COURT REPORTING SERVICE 89 1 lawyer handling it. 2 I mean, I've got it down and I've got it 3 computerized. I've got huge numbers. I mean, the 4 irony of it is when I'm done and the day is done 5 and I look at the end of the year and damn when I 6 look at the bell curve that's the way that I came. 7 MR. KURTZ: And so the same applies? 8 MR. NEUHARD: I know how these numbers were 9 done, and it's called -- are you familiar with the 10 Delphi Method? We got eight people in a room and 11 we all estimate various things and you throw out 12 the highest and throw out the lowest and you 13 divide by six, that's how you do the Delphi 14 Method? 15 MR. KURTZ: That's how you throw out a 16 friend of Judge, right? 17 MR. NEUHARD: A lot of people contributed 18 the information from their experience that could 19 reasonably be done. This is all you do, and so it 20 obviously came back in the 1960s or '70s. 21 MR. LEFSTEIN: It obviously came back in 22 1985, The National Commission's standards. 23 MR. NEUHARD: Right. And when you look at 24 who did these, there are currently people who came 25 out of large programs, contributed to them, and KING COURT REPORTING SERVICE 90 1 those numbers were based on what their experiences 2 were. 3 MR. KURTZ: Thank you very much, Jim. We 4 appreciate it very much. You've come a long way 5 to be here with us, and we do appreciate it. 6 And now I'll let Phyllis introduce Dean 7 Lefstein. 8 MR. LEFSTEIN: I think you did. 9 MS. HOLMEN: I think I did introduce Dean 10 Lefstein already, and we're happy to hear from 11 you. 12 MR. LEFSTEIN: Well, thank you very much. 13 It's been a long morning. I flew down this 14 morning because last night at the law school we 15 had a speaker from Utah, a Supreme Court Justice 16 soon to be the Chief Justice of Utah, who was a 17 Duke law graduate, and we had scheduled her to 18 speak probably almost a year ago at 7:45 p.m. in 19 our courtroom, with the game tipping off at 7:38. 20 It was not a well attended event. 21 MR. KURTZ: Did the speaker show up? 22 MR. LEFSTEIN: The speaker was there. 23 Happily, she was not a great sports fan, but in 24 case you're wondering, the front page reads 25 "Stunner", and on the inside it says, "You just KING COURT REPORTING SERVICE 91 1 won't quit." 2 I don't know how many Duke grads were in the 3 room, but Bucky were you a Duke graduate? I 4 figured there was somebody there, but I came to 5 Indiana in 1988 and for many years until just 6 recently I would never root for IU as long as 7 Bobby Knight was the coach, but I've changed my 8 mind and I'm now on board. 9 Well, I'm very pleased to visit with you a 10 little bit about indigent defense in Georgia. I 11 know something about it, but not as much as all of 12 you do. I know that there is a great interest in 13 standards in Georgia. Phyllis has told me this in 14 an e-mail, and also how you make them enforceable. 15 And I want to talk about standards, but I 16 think I can be of most use to you if I do it in 17 the context of the Indiana experience because I 18 really do think that what we have developed in 19 Indiana over more than now the past decade is 20 somewhat unusual and it has some parallels to the 21 Indiana story. 22 And I say that for a number of reasons, but 23 let me say at the outset the reform in Indiana 24 began in 1989 with the establishment of an Indiana 25 Public Defender Commission, which I have chaired KING COURT REPORTING SERVICE 92 1 ever since its inception and probably will 2 continue to chair it, it looks like, and we've 3 obviously made improvement in Indiana and tell you 4 at the outset it's not a panacea, and we suffer 5 from funding problems like every state around, 6 especially right now. 7 The state of Indiana is not in great shape, 8 but it's interesting to compare indigent, and if 9 you're a little over eight million people and 10 indigent is a little over six million people. 11 Your expenditures on indigent defense is, 12 according to the data I saw, is $41 million and 13 indigent there are only about $32 million, and so 14 there is that certain ratio of the dollars. 15 We don't have as many dollars in indigent to 16 fund indigent defense as I feel we need. Both 17 states are substantially county funded systems, 18 and that's really one of the very important 19 parallels; however, there is a very major 20 difference in indigent in Georgia, and you'll 21 correct me if I'm wrong, but the difference is 22 that in Georgia the funds that are provided are 23 supplemental funds provided through the Georgia 24 Indigent Defense Council, am I right? 25 MR. SHAPIRO: They're typically used to KING COURT REPORTING SERVICE 93 1 offset county expenses. 2 MR. LEFSTEIN: Do they replace county 3 monies? 4 MR. SHAPIRO: More often they do augment. 5 MR. LEFSTEIN: All right. I didn't fully 6 appreciate that. In indigent the monies that are 7 provided are solely reimbursements to the 8 counties. They're getting money back and when 9 they get it back incidentally they get it back 10 however they want to use it. It's free money to 11 the County Commission, and that's not an 12 unimportant factor in terms of how they look upon 13 the current Indiana system. 14 I sent down, and I think it was perhaps 15 handed out, materials on the indigent system. I 16 don't expect you all to pour through them and have 17 it done before today, but those of you who may 18 work carefully in devising a Georgia system may 19 want to look at it with some care. 20 And I'm going to give you a very brief 21 explanation of it. The Indigent Public Defender 22 Commission was established in '89 by the 23 legislature with an 11-member Commission. 24 Initially it had a few less members, but it's 11 25 members now with different appointing authorities. KING COURT REPORTING SERVICE 94 1 Three appointed by the Chief Justice, three 2 appointed by the Governor, one by something known 3 as a Criminal Justice Institute in the state, and 4 two appointed by the speaker of the House who have 5 to be members of the House, and two appointed by 6 the speaker pro tem of the House, who have to be 7 of the Senate who have to be members of the 8 Senate, and in each instance they have to be 9 members of political parties. 10 I will tell you I was very wary of having 11 legislators on the Commission. It is an 12 experiment perhaps that has worked exceedingly 13 well because having them on the Commission means 14 that we have in the legislature persons who 15 identify with the Commission, understand our 16 needs, and will talk to their colleagues much 17 better than I can talk to them, and so I think 18 it's been a remarkably effective development. 19 Original, when we started out, we had $650 20 thousand. Not very much. It went up somewhere in 21 the '90s to about $2.4 million, and despite the 22 financial problems in the state for this fiscal 23 year our budget was raised to $6 million to 24 reimburse indigent counties and for next fiscal 25 year it was raised to $7 million. KING COURT REPORTING SERVICE 95 1 Still not enough, and if you read our annual 2 report we say that we may well run out of money, 3 but we've managed to increase it despite a very 4 tight fiscal situation in the state. 5 Now, one of the reasons we've been able to 6 do that is that the counties, the County 7 Commissioners and persons throughout the state 8 have a real affection for the Commission because 9 we are providing reimbursements to them and when 10 they receive the money. As I suggested earlier, 11 they're not receiving it with any strings 12 attached. 13 Now, the work of the Commission and the 14 statutes are in two areas: One, in the death 15 penalty area, and the statute provides that the 16 Commission will reimburse Indiana counties for 50 17 percent of their indigent defense costs in capital 18 cases, but we only reimburse if the counties are 19 in compliance with the Commission's guidelines, 20 and our guideline is very simple. 21 We will provide reimbursement only if the 22 county's system complies with Criminal Rule 24 of 23 the Indiana Supreme Court, and under our statute 24 we have the responsibility of recommending 25 standards for indigent criminal defense to the KING COURT REPORTING SERVICE 96 1 Indiana Supreme Court. 2 And when we were first founded in the 19'90s 3 we prepared a rule on criminal defense in capital 4 cases that we submitted to the Indiana Supreme 5 Court, and we developed it over about a year and a 6 half, and I regard it as one of my most 7 progressive rules of its kind in the country. 8 That rule, incidentally, was not part of 9 your materials. I actually inadvertently failed 10 to include that rule, but 90 percent of what the 11 Commission recommended to the Indiana Supreme 12 Court was adopted by the Indiana Supreme Court. 13 In fact, yesterday I was in a meeting with 14 several Supreme Court Justices, and one of them 15 referred to the Commission's rule for capital 16 defense, and because the Chief Justice was there I 17 gently corrected him and said well it's really 18 your rule. 19 Well, it is the Supreme Court's rule, but 20 happily it is a rule that was developed by persons 21 who had studied the indigent defense system in 22 Indiana. 23 JUDGE BIRCH: Is that a rule or a guideline? 24 MR. LEFSTEIN: It is a rule of the Indiana 25 Supreme Court. KING COURT REPORTING SERVICE 97 1 JUDGE BIRCH: So somebody can take a county 2 to task before the Supreme Court for violation of 3 the rule theoretically. 4 MR. LEFSTEIN: Theoretically it does have 5 some effects and I will explain one of the ways it 6 had an effect. The ruling sets out experiential 7 requirements for the assignment of counsel in 8 capital cases. You have to have prior capital 9 experience if you're going to be the lead counsel. 10 You have to have prior felony experience. And it 11 also sets out experiential rules who is not the 12 lead but the co-counsel. 13 It has some very unusual provisions on 14 caseload, and really the only ones that I know 15 about of this kind in the country. If you are a 16 public defender handling a capital case you may 17 not receive any new appointments within 15 days of 18 a capital trial. 19 We actually had recommended 30 days, but I 20 think the rule now says 15 days because we 21 recognize the intense work that has to take place 22 just before you undertake to have a capital trial. 23 In addition, you may not have more than 20 24 active felony cases while you are handling a 25 capital case, and that 20 felony cases, those 20 KING COURT REPORTING SERVICE 98 1 active felony cases means that certain lawyers are 2 going to be ineligible to receive an assignment of 3 a capital case or they're going to have to divest 4 themselves of certain felony cases in order to 5 take the case. 6 There was one case that was in Evansville, 7 Indiana, where -- oh, and incidentally, not only 8 do you have to have your caseload reduced or be no 9 more than 20, you have to sign a certification and 10 so does the trial Judge to the effect that Rule 24 11 was complied with. 12 Well, there was a case in Indiana where the 13 lawyers, and unfortunately they were graduates of 14 my law school, where the lawyers were in flagrant 15 violation of that rule on the number of capital 16 cases and the Defendant was convicted in what was 17 really not a very effective defense, and on post 18 conviction that conviction was challenged and part 19 of what the lawyers on the post conviction pointed 20 out was the gross violation of Rule 24 of the 21 Indiana Supreme Court, and they asked me to 22 testify, and I did, to explain our thinking behind 23 the development of that rule. 24 Ultimately that conviction was reversed and 25 the Indigent Public Defender Commission referred KING COURT REPORTING SERVICE 99 1 the matter to the disciplinary council in the 2 State of Indiana because the lawyers had signed a 3 certification under penalty of perjury that they 4 were in compliance with Rule 24 when they clearly 5 were not. 6 MR. KURTZ: Kind of like negligence per se, 7 huh, or ineffective assistance -- 8 JUDGE ADAMS: Is that the only ground of 9 reversal? 10 MR. LEFSTEIN: No, that was not the only 11 ground of reversal, but it was an element that was 12 taken into account because I had to acknowledge to 13 the trial court that certainly it is possible that 14 a lawyer having more than 20 open felony cases 15 could do an effective job in a capital case, but 16 nevertheless it may be a factor that the Court 17 would find useful to consider on whether or not 18 ineffective assistance of counsel was, in fact, 19 rendered. 20 What is perhaps most significant is that 21 since the early 1990s, when that rule went into 22 effect, which incidentally said the lawyers had to 23 be paid $70 an hour for their time since January 1 24 of 2001, was raised to $90 an hour and with no 25 limit on the extent of reimbursement. KING COURT REPORTING SERVICE 100 1 There is no cap in a capital case nor for 2 that matter in other cases in indigent. There has 3 not been any reversals of capital convictions, 4 which were common prior to this time except one, 5 and the one case that was reversed was this case 6 from Evansville where the lawyer was appointed 7 pursuant to Rule 24 and, of course, in that case 8 the lawyer was in flagrant violation. 9 The lawyers, both of them, were in flagrant 10 violation of the caseload caps in capital cases. 11 The other development in indigent, which can 12 clearly be documented, I discussed it in a Law 13 Review Article in 1996, but it has continued since 14 that time as the number of capital filings by 15 prosecutors in the State of Indiana is way down. 16 They simply do not file capital cases like 17 they once did, and I think there are a variety of 18 reasons, but part of it is that the defense is 19 much more effective than it used to be, and 20 prosecutors are political animals and they 21 understand the risks involved in taking a capital 22 case to a trial where the chances of prevailing 23 are not nearly as good as they once were in the 24 State of Indiana. 25 There were terrible horror stories of the KING COURT REPORTING SERVICE 101 1 kind that we've all seen in capital cases prior to 2 the advent of Rule 24, and I'm pleased to say that 3 it just hadn't happened since that time. 4 We also maintain a roster of qualified 5 attorneys by experience, at least in capital 6 cases. The one thing the Indiana Supreme Court 7 did not do was to give the Commission the 8 authority to screen the competence of counsel, 9 qualitatively. 10 They felt that that was a function that we 11 ought not to get into and, therefore, we maintain 12 a roster of lawyers who meet the experiential 13 requirements, but we don't certify that they are 14 necessarily effective attorneys. 15 Well, let me turn to the issue of 16 non-capital cases. In indigent in the non-capital 17 area the Commission provides from its monies a 40 18 percent reimbursement of indigent defense 19 representation in felony and juvenile delinquency 20 cases. 21 As I said earlier, a major difference with 22 Georgia is, at least to some extent, perhaps, is 23 that our standards are absolutely mandatory. A 24 county receives no reimbursement from the Indiana 25 Public Defender Commission unless there is KING COURT REPORTING SERVICE 102 1 compliance with our standards, and our standards 2 are on the Web site. I had copies of it made for 3 you. 4 They are based substantially upon standards 5 that you've all been talking about here this 6 morning, and which Jim refers, the ABA standards 7 on providing defense services. This is a copy of 8 the third edition, very much informs of our work 9 perhaps in part because I have worked on these 10 over the years so long, but we also looked at 11 other standards, and looked at standards related 12 to caseload as I'll mention in just a minute. 13 First, though, it's important to understand 14 that our standards work in cooperation with some 15 with the indigent legislature. There is an 16 indigent statute that authorizes counties to 17 establish a county public defender board. That 18 county public defender board is permissive. 19 No county has to establish such a board, but 20 the statute to which I refer expressly states that 21 a member of a board may not be, and I'm going to 22 quote this, a city, town, or county attorney, a 23 law enforcement officer, a Judge, or a court 24 employee. And we insert a law enforcement officer 25 to mean a prosecutor. KING COURT REPORTING SERVICE 103 1 And so you cannot have a Judge or a 2 prosecutor on a county board that will oversee 3 public defenders. 4 Now, a board that is established under that 5 statute is required to prepare a comprehensive 6 plan for providing indigent defense 7 representation, and that plan must be submitted to 8 the Indigent Public Defender Commission, and the 9 statute also applies there. 10 It also says that if the plan does not apply 11 with the Commission standards the Commission may 12 terminate funding of the local jurisdictions. 13 Well, there are plans that have been 14 submitted to the Commission by these county public 15 defender boards that we have not approved, and the 16 reason we don't approve them sometimes is that 17 they are not in compliance with the Commission's 18 own fairly elaborate standards. 19 The Commission's standards, as I said a 20 moment ago, are mandatory, and I'm going to give 21 you the premier example of how we have enforced 22 them. 23 Marion County, which is where Indianapolis 24 is located, is by far the largest county in the 25 State of Indiana, and they did establish a county KING COURT REPORTING SERVICE 104 1 public defender board, and they did adopt a 2 comprehensive plan for providing indigent defense 3 representation some years ago, but they asked us 4 if we would phase in our standards, if we would 5 apply them to most serious felonies cases and let 6 them phase in the lowest wrung of felony cases 7 known as Class D felonies. 8 And we agreed to that on the condition that 9 they would ultimately come forward and implement 10 our standards on Class D felony cases and our 11 standards relate to how many cases an attorney can 12 have. 13 Well, several years had gone by and they had 14 not implemented our standard on Class D felonies, 15 and finally and there was, with the full knowledge 16 of the head of the Marion County Public Defender's 17 office, on September 5, 2001, I wrote a letter as 18 chairman of the Commission with the backing of the 19 Commission in which I said, "The purpose of this 20 letter is to advise you that the Commission is no 21 longer prepared to wait for Marion County to 22 comply with the Commission's standards as outlined 23 in the county's comprehensive plan. 24 Unless adequate steps are taken to correct 25 these deficiencies, the county's eligibility for KING COURT REPORTING SERVICE 105 1 reimbursement from the public defender fund will 2 terminate on December 31, 2001. 3 The Commission is willing to support Marion 4 County if it is prepared to take substantial and 5 concrete steps to achieve full compliance with the 6 Commission's standards, but such steps must be 7 demonstrated within the next 90 days." 8 And we pointed out that they had received 9 $5.5 million from the public defender Commission 10 since this plan was initially approved, but we 11 were no longer willing to continue. 12 That letter was faxed to the chief public 13 defender in Marion County on the date it appears, 14 September 5. 15 That afternoon, there was a hearing of the 16 public safety committee of the County 17 Commissioners in Marion County, and during that 18 meeting they approved additional funding for the 19 Marion County public defender of $300,000 in order 20 that the Marion County public defender could come 21 into compliance with the Commission's standards. 22 My only regret in that episode was that we 23 didn't push them harder sooner, but it showed the 24 remarkable effect that you can have by providing 25 an incentive to a county and making it clear that KING COURT REPORTING SERVICE 106 1 unless there is compliance we will no longer 2 provide the funding that they have requested. 3 There are 92 counties in the State of 4 Indiana. Currently 48 of them have adopted 5 comprehensive plans for providing public defense, 6 and that means those 48 counties have all 7 established indigent public defender boards on 8 which there are no Judges, and no prosecutors. 9 And the Commission standards says that there 10 may not be any lawyer taking cases actively 11 involved in indigent defense who may be a member 12 of the Public Defender Commission board. 13 Well, what exactly do our standards provide? 14 And our standards are very detailed. They're a 15 blueprint telling the county boards what they have 16 got to agree to. 17 Well, first of all we say, repeating 18 basically what the statute says, you have to have 19 an independent board, and we repeat the 20 requirement that the comprehensive plan must be 21 adopted by the Commission. 22 They submit the plan to us, we review it, 23 and then it goes on to provide for indigency 24 standards for eligibility. A person is not 25 eligible, or is not ineligible, for example, KING COURT REPORTING SERVICE 107 1 simply because they have employment. They're not 2 ineligible simply because they made bond. 3 One of the keys is, though, that the type of 4 representation is left to local option. They can 5 have a public defender system working in 6 cooperation with an assigned counsel plan. They 7 could have a completely assigned counsel plan or 8 they could have contracts for defense services. 9 It was our belief that it was important not 10 to try to mandate to the local jurisdictions, much 11 like your first speaker this morning suggested, to 12 tell them precisely what they had to do. 13 The reality is that the vast majority of 14 them have moved toward the adoption of a public 15 defender system of some kind, retaining 16 substantial private bar involvement. And you need 17 private bar involvement, as Jim talked about 18 earlier, for conflict cases and for other cases as 19 well. 20 As far as the compensation of lawyers is 21 concerned, the standard provides, our standards of 22 the Commission provide that the compensation must 23 be substantially comparable to the compensation of 24 prosecutors. 25 And we have rejected the creation of local KING COURT REPORTING SERVICE 108 1 Public Defenders where the compensation was not 2 going to be substantially comparable, and we used, 3 as a rule of thumb, at least 90 percent of what a 4 prosecutor is earning. 5 I've always felt that that is in some ways 6 inappropriate because it's always possible that 7 you can have a prosecutor who is not adequately 8 compensated either, but the reality is that 9 prosecutors are invariably better compensated than 10 the defenders are. 11 We also provide a rate of $60 an hour with 12 no limits for the representation that is provided, 13 and I would be the first to argue that $60 is not 14 enough, and one of the choices of the Commission 15 is whether or not we are going to raise that 16 amount. 17 But the reason we have not raised it is that 18 we are fearful that from our own budget we don't 19 have the capacity to provide the requisite 20 reimbursement if we raise it, and the counties are 21 going to protest raising it. 22 There must be support services provided, and 23 we have detailed caseload standards which use the 24 standards that we've been talking about here 25 earlier that Jim discussed, and we have in effect KING COURT REPORTING SERVICE 109 1 two sets of standards. One where there are 2 adequate support services, and one where we deem 3 the support services to be inadequate. 4 And when a county comes to us and seeks 5 payment they have to report to us the caseloads of 6 their lawyers, and we actually analyze those 7 caseloads, and there are also standards on 8 contracts as well as a requirement that there be 9 training and professional development provided to 10 the lawyers. 11 Well, let me just wrap this up and see if 12 you have some questions. You could really ask the 13 question how does the work that we've done in 14 Indiana measure up against the 10 principles for 15 an indigent defense system that Jim talked about 16 earlier? 17 And I think that we are in very substantial 18 compliance, but the key is, in my belief, and 19 indeed early on when we talked about these 20 principles I suggested to Jim that the very first 21 principle had to be indigent defense, and that's 22 why it appears as the first principle. 23 I was in Marion County before I ever dreamed 24 of ever moving to Indianapolis in 1975 on a study 25 of indigent defense, and what I saw then is what I KING COURT REPORTING SERVICE 110 1 saw when I moved back to Indiana in 19 -- when I 2 moved to Indiana in 1988; that there was a 3 patronage system for the assignment of counsel. 4 And it was clear in a hearing that we had 5 with lawyers from Marion County more than a decade 6 ago now that lawyers came in and made it clear 7 that if they zealously represented their clients 8 they were not going to get appointed in Marion 9 County. 10 That is the very same thing that I heard 11 here at the beginning of this meeting, and 12 obviously that's not true in the case of every 13 trial court Judge, but it is certainly true in 14 some instances. 15 And the reality is that unless you remove 16 the judiciary and the prosecutors from, in any 17 way, being involved in the system you will not 18 have the requisite independents, and on that score 19 we have moved light years ahead in indigent 20 through the framework that I have discussed. 21 And in other ways I think we are in 22 substantial compliance with these principles that 23 have been drafted and prepared subsequent to what 24 we've done in Indiana. 25 I tell you again, it's not a panacea, but I KING COURT REPORTING SERVICE 111 1 I've seen progress made, I believe progress can be 2 made in Georgia, and I think some of what we have 3 done in Indiana furnishes an interesting model for 4 your study, and that's why I was delighted to come 5 down here at Phyllis' invitation and tell you a 6 bit about it. 7 MR. KURTZ: Thank you, Dean. Judge? 8 JUDGE STEPHENS: Is it correct to say there 9 is no mechanism whatsoever for the Judges to have 10 any input as to the competence of lawyers who are 11 trying cases in front of them in court that are on 12 the appointed list? 13 MR. LEFSTEIN: Well, let me answer that two 14 ways and say that in Indiana I think that a trial 15 court Judge probably could remove a lawyer deemed 16 to be ineffective, but I will also tell you that 17 the standards in the American Bar Association 18 adopt a principle that was ruled upon many years 19 ago by a California court, I believe it was a 20 California Supreme Court, that basically said that 21 once a lawyer has been appointed for an indigent 22 defendant that the Court may not remove the 23 lawyer. It may not interfere with the 24 attorney-client relationship over the objection of 25 the client. KING COURT REPORTING SERVICE 112 1 So the answer is the trial Court certainly 2 in Indiana, at least, could take steps against the 3 lawyer deemed to be ineffective, but they do not 4 have a role in trying to structure the program of 5 indigent defense in the local jurisdiction. 6 MR. KURTZ: Their Public Defender Commission 7 has adopted an appointed system, who does the 8 appointing, the Commission? 9 MR. LEFSTEIN: No. Well, our standards did 10 not mandate that it had to be done by the public 11 defender board, for example. 12 MR. KURTZ: Okay. It did not. 13 MR. LEFSTEIN: Or the head of the office. 14 And I think more often than not that it is going 15 to be done by the board, but there are 16 experiential requirements that the Judge could not 17 appoint without the experiential requirements. 18 MR. KURTZ: I have one question, and we're 19 going to need to adjourn fairly quickly, but I 20 have one question. 21 Obviously or apparently from what you say 22 under the Indiana system it's local option in the 23 sense that you can opt out of the system if you 24 don't want -- if counsel didn't want your money, 25 then it can go its own way and 44 counties, KING COURT REPORTING SERVICE 113 1 apparently, have chosen to do so. 2 MR. LEFSTEIN: Well, it isn't so much they 3 have opted out, they haven't yet opted in. 4 MR. KURTZ: Okay. 5 MR. LEFSTEIN: And part of the -- but let me 6 say this. 7 MR. KURTZ: Okay. 8 MR. LEFSTEIN: Of the population centers in 9 the State of Indiana well over 50 percent of 10 indigents' population is now covered by counties 11 that are in the system. The problem we face now 12 is that we're going to run out of money. 13 Our annual report indicates that our 40 14 percent reimbursement at this fiscal year may be 15 cut down into the low 30 percent area because we 16 are not adequately funded. 17 We've been very proactive in explaining to 18 counties how they could come under the system, and 19 we've stopped being proactive because we can't 20 promise them reimbursement because the legislature 21 has not given us all of the monies that we would 22 like to have. 23 MR. KURTZ: So it would not be fair to say 24 that 44 counties decided they can do it better on 25 their own. KING COURT REPORTING SERVICE 114 1 MR. LEFSTEIN: No, I don't think so. I 2 think there are either smaller counties or 3 counties that have been fearful now of getting in 4 because they're not sure of the reimbursement 5 level, but it's been remarkable of what's happened 6 over the last couple of years because one by one 7 they fell even in circumstances wherein, for 8 example, Lake County in Northern Indiana, the 9 Judges didn't want to let go, frankly, but they 10 ultimately did. Because the County Commission 11 came to them and said you've got to be part of 12 this program. 13 MR. KURTZ: How long has your system been in 14 operation? I mean, with funding. 15 MR. LEFSTEIN: It's been gradual, but the 16 statute has been there since '90, but the felony 17 representation and what we've been doing is really 18 post '95. 19 JUDGE ADAMS: Any other elected public 20 defender officials on the public defender board, 21 county public defenders, or are other elected 22 officials allowed to be on the board? 23 MR. LEFSTEIN: They're appointed -- the 24 statute is in there, and I can't recite it off the 25 top of my head. There are appointing authorities KING COURT REPORTING SERVICE 115 1 for it. Who appoints the local -- I think there 2 can be public officials part of the board. 3 JUDGE ADAMS: Except Judges and prosecutors. 4 MR. LEFSTEIN: Right. 5 MR. KURTZ: Bob, did you have something? 6 MR. KELLER: I just wanted to follow up on 7 one thing, and maybe I missed it, but you said 8 that it was very important for the counties, when 9 they got reimbursed, that the money was, 10 basically, under -- in other words, it was not 11 earmarked. 12 MR. LEFSTEIN: It was free money. 13 MR. KELLER: It was free. It was free 14 money. I mean, they have already expended -- 15 let's say they've expended $100,000 for indigent 16 defends, you're going to give them back $40,000. 17 MR. LEFSTEIN: Yes. 18 MR. KELLER: The fact that it's free money, 19 do you say free in the sense that they just get it 20 back or do you say free in the sense of 21 unincumbered? 22 MR. LEFSTEIN: What I mean is they've 23 already spent the money. They simply take it and 24 they will do with it as they wish. Now, they may 25 use it as kind of a setoff, but in reality I think KING COURT REPORTING SERVICE 116 1 they view it as a source of income. 2 MR. GRIFFIN: Dean, in indigent, is the 3 indigent defense the responsibility of the county? 4 I assume it is. 5 MR. LEFSTEIN: Yes. 6 MR. GRIFFIN: And so that's the reverse of 7 what we have here? 8 MR. KURTZ: Well, no. It's the same as we 9 have here. 10 MR. GRIFFIN: No, it's not. 11 MR. KURTZ: I think it's the same. 12 MR. GRIFFIN: No, it's not. We maintain 13 that unless you sign the contract and enter into a 14 contract with the Indigent Defense Commission the 15 county really doesn't have legal responsibility. 16 MR. KURTZ: I meant de facto. 17 MR. LEFSTEIN: De facto they provide. 18 MR. KURTZ: Okay. Phyllis. 19 MS. HOLMEN: A question for both of you. 20 Bill and I briefly have talked about if you have a 21 set of principles or standards or whatever, what 22 can you say about whether or not they are grounded 23 in case law? For instance, U.S. Supreme Court 24 case law so that when the legislature says well 25 that's just somebody's idea of a good thing to do, KING COURT REPORTING SERVICE 117 1 you know, what's the level of real obligation in 2 terms of minimal constitutional standards? 3 And if you want to talk about the 10 4 principles, I think that would be most useful. 5 MR. LEFSTEIN: Well, I can give a quick 6 answer. I mean, it's a very low threshold in 7 terms of what is constitutionally mandated, and 8 it's really the Strickland and Cronic cases, and 9 so if you're going to try to defend the use of 10 standards based solely upon constitutional 11 principles I think it's a tough argument. 12 But there are all kinds of other reasons to 13 have them, and if nothing else, I have really 14 become convinced certainly in recent years, and I 15 think indeed it informs some of the survey data. 16 I've become convinced that the public now 17 understands that when there is not effective 18 defense the risk of convicting the innocent is a 19 real reality throughout the country, and what you 20 have seen in some very celebrated cases I have 21 become convinced, what I was convinced of a couple 22 of years ago, it's the tip of the iceberg. 23 There are some innocent people that go to 24 Brison because they don't have effective 25 representation, and I think the public has come to KING COURT REPORTING SERVICE 118 1 understand that much more now than they did 2 before. 3 JUDGE BIRCH: How difficult was it to get 4 the Supreme Court to adopt under its supervisory 5 powers these rules? Because they are a political 6 body, too, and to some degree when they do that I 7 think they put themselves in a position that 8 they're going to have to enforce it. 9 MR. LEFSTEIN: Well, what the Supreme Court 10 adopted were the rules on capital defense. 11 JUDGE BIRCH: Just capital? 12 MR. LEFSTEIN: Just capital. 13 JUDGE BIRCH: Okay 14 MR. LEFSTEIN: The other standards are 15 standards of the Commission made possible through 16 the legislative framework. 17 JUDGE BIRCH: I see. 18 MR. LEFSTEIN: As far as the capital 19 standards are concerned, I think my best answer to 20 that is to say, A, we have a very good Supreme 21 Court in Indiana, very conscientious justices, and 22 perhaps more importantly than that is the fact 23 that they have seen case after case that have come 24 before them where the lawyers have been so 25 inadequate they just couldn't tolerate it any KING COURT REPORTING SERVICE 119 1 longer, and they embraced rapidly a rule that I 2 think we're going to have to. 3 MR. NEUHARD: The other defenders 4 legislation, they wanted standards developed by 5 the Commission that was created and adopted by the 6 Supreme Court, which created that tension from the 7 legislature, mandate the Court to do standards, is 8 the word standards was used. 9 We went through a public hearing process and 10 the committee got a lot of attention from the bar 11 and everybody else, and this is the 20 standards 12 that came out of that. 13 Ultimately they went through the standards 14 as the Court evolved over time to the current 15 approach, which is now characterized as very 16 conservative. They have been trying to appeal the 17 standards saying well we shouldn't have this 18 because it prevents the lawyers from being able to 19 make money and not doing what they required, which 20 is the basic things, and trying to appeal them. 21 What has been interesting is there has been 22 a very strong reaction from the bar doing their 23 work who view the standard not as a requirement, 24 but as a shield, saying that if I do do these 25 things I'll get paid for them. KING COURT REPORTING SERVICE 120 1 And so there has been a slow erosion in the 2 position of the conservative justice system back 3 to keeping them, but modernizing it back to 4 professional conduct. 5 There has been a lot of support for reasons 6 that we never anticipated should be done, and 7 sorted out to get the theoretical part of the 8 lawyers away from it. 9 And so there has been a lot of discussion 10 about it, what the role of the court is about 11 there, and we have gone through an easy period. I 12 think they're not very comfortable with 13 modernizing them and keeping them and then 14 delegating, where appropriate, for the 15 Commission's responsibility for how a lawyer 16 performs, whether they're on the list or off the 17 list or those kinds of things. 18 MR. IDE: If I were an ADA or a Judge 19 listening to you in Indiana, you know, it's pretty 20 shocking because I'm doing a good job in Georgia 21 and now you're talking about this would be Atlanta 22 instead of Indianapolis, and if I get money from 23 my stand how do you get from here to there to get 24 the bar and the Judges and the DA all pulling 25 together and yet you're sort of saying Judges KING COURT REPORTING SERVICE 121 1 you're out, DAs you're out, you know, give it all 2 up? How in the hell are you going to do that 3 politically? 4 MR. LEFSTEIN: Well, it didn't happen 5 overnight in Indiana. And it was a long effort, 6 and I actually came to Indiana about the time this 7 legislation was about to be enacted. 8 And I think there was some work done, and 9 people understand the difficulties, and the people 10 in the state, and the climate here in the State of 11 Georgia, and the presence of this Commission, and 12 you have potentially, I would hope, a very 13 effective lobbying force along with the Georgia 14 bar. 15 You know, there is a standard on this ABA 16 booklet that says government has the 17 responsibility and the bar has -- government has 18 the responsibility to provide the funding, but the 19 bar has a responsibility to be very effective 20 advocates on behalf of what is necessary to secure 21 the Sixth Amendment, but it's not easy, and it's 22 especially difficult in a difficult climate, but 23 you all are the keys, in my opinion. 24 As it was stated earlier, there is no 25 effective lobbying force for individual defense KING COURT REPORTING SERVICE 122 1 except possibly the bar. You're the only hope. 2 MR. NEUHARD: In Michigan the county system, 3 also the trial level, we came up, and when these 4 10 principles were done the president of the bar 5 has taken them, and has taken them to the 6 representative assembly, and they want to go 7 through a debate process and lobby or tailor them 8 to the Michigan experience. 9 Well, the bar is going to have a public 10 hearing and then take them to the general assembly 11 and have them adopted to the guidelines to the 12 Judges, and the prosecution and the Judges and 13 counsel should act, and our requirement is Judges 14 among the prosecutors. 15 And we are the first ones, I think, that 16 began to flesh out the conflict of interest issue 17 and say these are conflicts and go forward, but 18 we're going to take it through that process to 19 give it a higher visibility. 20 I don't think it will be an issue because so 21 many problems were mentioned in Michigan about the 22 contracts and the issues and the Judges who have 23 done it have said I don't want to go back. 24 And we've gone through these experiences, 25 and so there is a word of mouth that wasn't going KING COURT REPORTING SERVICE 123 1 to observe that particular issue. I don't know if 2 Georgia is here or not. I can't speak to that. 3 MR. DUBOSE: I've got a question about 4 Standard No. 10. With appointed systems, how do 5 you effectively enforce Standard No. 10 that says 6 defense counsel supervise the quality? I think in 7 answer to that would be having a board providing 8 some oversight. 9 MR. NEUHARD: I'll give you several answers 10 to that. In the federal panel in Michigan, which 11 is very a large proponent of conflict, you're on 12 the list and you stay on the list for, I believe, 13 at least three years, and at that point they 14 certainly serve the Judges and the other lawyers, 15 and then you use the performance of the lawyers at 16 that point, and that is their method for doing it. 17 You don't get back on the list unless you're 18 requalified. 19 Other programs is a panel that reviews the 20 performance ongoing and, basically, it's what I 21 call after the fact. There is a performance for 22 clients, and you're removed for bad performance, 23 you're off the list. You can't come back unless 24 certain things are done. And so that is the only 25 way it's done. KING COURT REPORTING SERVICE 124 1 The third is much more costly, but normally 2 when you have control or an administrator and that 3 administrator arranges for a review process, 4 either a periodical, or an annual review, or a 5 third they institute something that on its own is 6 going to cause a active review of it, but it 7 normally requires you have eight persons 8 responsible for running the system and they are 9 held accountable if there is problems in it. 10 MR. KURTZ: I'm afraid I'm going to have to 11 call time. I know some people need to get back to 12 where they need to be, and I'm afraid I won't get 13 re-elected temporary chair. 14 MR. SHAPIRO: I have a quick comment about 15 the Judge's involvement. The current code in 16 Georgia that sets up the tripartite committee 17 prohibits law enforcement prosecution or Judges 18 from serving on tripartites and so we have that. 19 MR. GRIFFIN: Can I make one point before we 20 adjourn? 21 MR. KURTZ: Okay. 22 MR. GRIFFIN: You know we've been covered 23 and we've received excellent public exposure from 24 this Commission from a reporter that happens to be 25 in the room right now, and I couldn't help but KING COURT REPORTING SERVICE 125 1 mention that she is in the room. A few months ago 2 that she won some awards. 3 (Applause.) 4 MR. KURTZ: Martha, I think the reward 5 should be you should stand up and read it to us. 6 MR. GRIFFIN: Even though I don't always 7 read it. 8 REPRESENTATIVE HOLMES: I think she should 9 bring some of her wine and we'll all celebrate. 10 MR. KURTZ: Jim, Norman, thank you both very 11 much. We really, really appreciate it. We know 12 this required some effort on both of your parts to 13 get here to be with us today, and we appreciate it 14 very, very much. 15 We stand adjourned. The Commission is going 16 to go down and have a working lunch. 17 18 (Hearing adjourned at 12:25 p.m.) 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 126 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 10th day of December, 2002. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE