1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 1 2 SUPREME COURT COMMISSION ON INDIGENT DEFENSE 3 4 5 6 MAY 13, 2002 7 9:30 a.m. 8 9 10 11 12 Supreme Court of Georgia Judicial Conference Room 13 244 Washington Street Atlanta, Georgia 30334 14 15 16 17 18 19 REPORTED BY: DIANE KING, CSR, B-1957 20 21 22 KING COURT REPORTING SERVICE 23 125 COLONADE AVENUE, SUITE 1-B ATLANTA, GEORGIA 30331 24 (404) 344-7855 25 2 1 MEMBERS PRESENT: 2 MR. CHARLES R. MORGAN, CHAIRPERSON PROFESSOR PAUL KURTZ 3 JUDGE C. ANDREW FULLER MS. PHYLLIS HOLMEN 4 MR. JERRY GRIFFIN REPRESENTATIVE PAUL HOLMES 5 MS. FLORA DEVINE MR. C. WILSON DUBOSE 6 MS. AASIA MUSTAKEEM JUDGE LAWTON STEPHENS 7 MR. WILLIAM IDE JUDGE STANLEY F. BIRCH 8 REPRESENTATIVE ALLEN HAMMONTREE REPRESENTATIVE CURTIS JENKINS 9 GUESTS PRESENT: 10 MR. JAY B. MARTIN, AOC MS. JULIE COOK, BELLSOUTH 11 MS. KENDALL BUTTERWORTH, BELLSOUTH MR. MICHAEL B. SHAPIRO, GIDC 12 MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN RIGHTS 13 MS. GINNY LOONEY MR. BILL RANKIN, ATLANTA JOURNAL-CONSTITUTION 14 MS. EMILY KOPP, GEORGIA PUBLIC RADIO MR. ROBERT SPANGENBERG, THE SPANGENBERG GROUP 15 MS. MAREA BEEMAN, THE SPANGENBERG GROUP MR. HULETT H. ASKEW 16 MS. CYNTHIA CLANTON, AOC MS. DEBRA NESBIT, AOC 17 MR. MARK MIDDLETON MR. CLIFF BRASHIER, STATE BAR OF GEORGIA 18 MR. JOE CONTE, STATE BAR OF GEORGIA MR. DOUG GROSS 19 MR. D'ANDRE BERRY, FULTON COUNTY PUBLIC DEFENDER'S OFFICE 20 MR. VERNON S. PITTS, JR., FULTON COUNTY PUBLIC DEFENDER'S OFFICE 21 MR. MICHAEL KENDRICK, AOC MR. PATRICK F. McMAHON 22 MS. MARTHA EZZARD, PRESS MR. CURTIS JENKINS, HOUSE OF REPRESENTATIVES 23 MS. CHARLENE NORISSEAU MR. STEPHEN BRIGHT, SOUTHERN CENTER FOR HUMAN 24 RIGHTS MS. EMILY KOPP, GEORGIA PUBLIC RADIO. 25 MS. TOTONCHI, GEORGIANS FOR EQUAL JUSTICE KING COURT REPORTING SERVICE 3 1 PRESENTATION: 2 STATE BAR OF GEORGIA'S BOARD OF GOVERNER'S 3 RESOLUTION ON INDIGENT DEFENSE 4 JAMES B. DURHAM, PRESIDENT-ELECT, STATE BAR OF GEORGIA 5 HON. HAROLD G. CLARKE, PAST PRESIDENT, STATE BAR 6 OF GEORGIA 7 DAVID H. GAMBRELL, PAST PRESIDENT, STATE BAR OF GEORGIA 8 LINDA A. KLEIN, PAST PRESIDENT, STATE BAR OF 9 GEORGIA 10 J. DOUGLAS STEWART, PAST PRESIDENT, STATE BAR OF GEORGIA 11 BUDDY M. MEARS, MEMBER, STATE BAR OF GEORGIA'S 12 INDIGENT DEFENSE COMMITTEE 13 E. WYCLIFFE ORR, MEMBER, STATE BAR OF GEORGIA'S INDIGENT DEFENSE COMMITTEE 14 15 UPDATE FROM THE SPANGENBERG GROUP 16 ROBERT SPANGENBERG, PRESIDENT, THE SPANGENBERG GROUP 17 MAREA BEEMAN, VICE PRESIDENT, THE SPANGENBERG 18 GROUP 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 4 1 P R O C E E D I N G S 2 CHAIRMAN MORGAN: If everybody will take 3 their seats, please, we'll get started. Judge 4 Harris lent me his gavel. I've really wanted to 5 employ it, and so -- well, good morning and 6 welcome. 7 My name is Charles Morgan. We're going to 8 start off this session of the Commission as we 9 have in the past and go around the room, and I'm 10 going to ask the Commissioners to introduce 11 themselves, and then our guests, and if we could 12 hold on our speakers, I will ask Wilson to 13 introduce our speakers when we finish introducing 14 the audience. 15 MR. KURTZ: I'm Paul Kurtz. I'm the 16 reporter for the Commission, University of Georgia 17 law school. 18 JUDGE ADAMS: Harris Adams, Superior Court 19 Judge, Cobb County. 20 REPRESENTATIVE HOLMES: I'm Paul Holmes. 21 I'm with the Life of the South and I live in 22 Monticello, Georgia. 23 JUDGE FULLER: I'm Andy Fuller, Superior 24 Court Judge, Northeastern Judicial Circuit. 25 JUDGE STEPHENS: Lawton Stephens, Superior KING COURT REPORTING SERVICE 5 1 Court Judge, Western Circuit, Athens, Clark and 2 Oconee Counties. 3 MR. GRIFFIN: I'm Jerry Griffin, Association 4 of County Commissioners of Georgia. 5 JUDGE BIRCH: I'm Stan Birch, 11th Circuit. 6 MR. GAMBRELL: David Gambrell from Atlanta. 7 I'm past president of the State Bar. 8 MR. ORR: I'm Mike Orr from Gainesville and 9 I'm a member of the Bar's Indigent Defense 10 Committee. 11 MR. DURHAM: I'm Jim Durham and I'm 12 president-elect of the State Bar of Georgia. 13 MR. MEARS: I'm Mike Mears. I'm on the 14 State Bar's Indigent Defense Committee. 15 MR. STEWART: I'm Doug Stewart. I'm on the 16 State Bar's Indigent Defense Committee and a past 17 president of the State Bar. 18 MR. DUBOSE: I'm Wilson DuBose, Commission 19 member. I live in Madison, Georgia, and practice 20 law in Madison and Atlanta. 21 MS. HOLMEN: Phyllis Holmen. I'm a member 22 of the Commission. I'm from Atlanta. 23 MS. MUSTAKEEM: Aasia Mustakeem. I'm a 24 member of the Commission, and I'm an attorney at 25 Powell, Goldstein in Atlanta. KING COURT REPORTING SERVICE 6 1 MS. CLANTON: I'm Cynthia Clanton. I'm 2 general counsel with the Administrative Office of 3 the Courts. 4 MR. ASKEW: I'm Hulett Askew with the 5 Administrative Office of the Courts. 6 MR. SPANGENBERG: I'm Bob Spangenberg, 7 president of the Spangenberg Group. 8 MS. BEEMAN: I'm Marea Beeman with the 9 Spangenberg Group. 10 MR. RANKIN: Bill Rankin with the Atlanta 11 Journal-Constitution. 12 MS. BUTTERWORTH: I'm Kendall Butterworth 13 with BellSouth. 14 MS. COOK: I'm Julie Cook with BellSouth. 15 MR. RUNDLETT: Alex Rundlett with the 16 Southern Center for Human Rights. 17 MS. NESBIT: Debra Nesbit with the 18 Administrative Office of the Court. 19 MR. MIDDLETON: I'm Mark Middleton with the 20 State Bar. 21 MR. SHAPIRO: I'm Mike Shapiro with the 22 Georgia Indigent Council. 23 MR. BRASHIER: I'm Cliff Brashier with the 24 State Bar of Georgia. 25 MR. CONTE: I'm Joe Conte with the State KING COURT REPORTING SERVICE 7 1 Bar. 2 MR. GOSS: Doug Gross from Morris News 3 Service. 4 MS. LOONEY: I'm Ginny Looney. I work for 5 the Chief Justice for the Georgia Supreme Court. 6 MR. BERRY: D'Andre Berry with the Fulton 7 County Public Defender's office. 8 MR. PITTS: I'm Vernon Pitts with the Fulton 9 County Public Defender's office. 10 MR. KENDRICK: Michael Kendrick, 11 Administrative Office of the Courts. 12 MR. McMAHON: I'm Pat McMahon with the panel 13 defender work with the Federal Courts in DeKalb 14 and 20 years of doing appointment work in Cobb 15 County. 16 MR. BRIGHT: I'm Stephen Bright from 17 Atlanta. 18 MS. KOPP: I'm Emily Kopp from Georgia 19 Public Radio. 20 MS. TOTONCHI: I'm Sara Totonchi with 21 Georgians for Equal Justice. 22 CHAIRMAN MORGAN: Well, thank you all for 23 being here. We've got a full schedule and so 24 we're going to dive right in and we appreciate the 25 State Bar being here this morning. I'm going to KING COURT REPORTING SERVICE 8 1 ask Wilson to kick us off. 2 MR. DUBOSE: Thank you very much, Charles. 3 We, indeed, are fortunate to have some very 4 distinguished leaders, both past, and present, and 5 future of the State Bar of Georgia. 6 The State Bar has been discussing the issue 7 of indigent defense for a good while and in its 8 April Board of Governors meeting endorsed a 9 resolution which called for specific 10 recommendations and conclusions, and that 11 resolution is going to be presented to you today 12 by representatives of both, the current leadership 13 of the State Bar and members of the Indigent 14 Defense Committee of the State Bar and some past 15 precedents of the State Bar. And I'm going to 16 just re-introduce the group starting with David 17 Gambrell. 18 David was president of the State Bar, I 19 believe, in 1968. He is a senior partner in 20 Gambrell & Stokes in Atlanta. He has been a U.S. 21 Senator, and a very distinguished member of the 22 Bar, and very active in public service over the 23 last 40 years. 24 Wycliffe Orr is a practicing attorney in 25 Gainesville. He is a member of the Indigent KING COURT REPORTING SERVICE 9 1 Defense Committee of the State Bar. He is a 2 former legislator. 3 Wycliffe, I believe, was the first chair of 4 the Georgia Indigent Defense Council that was 5 established in 1979; is that correct? 6 MR. ORR: It may have been one or two in 7 front, but we were early on. 8 MR. DUBOSE: Wyc goes back a long way on 9 this issue. 10 Jim Durham is the incoming president of the 11 State Bar of Georgia. He will take office in 12 June. 13 And Jimmy Franklin, the current president of 14 the State Bar, is unable to be here with us today. 15 He had a conflict that he could not resolve but, 16 again, is representing the current leadership of 17 the State Bar and will be taking the lead in 18 presenting this resolution to you here today. 19 Mike Meers is the vice chair of the State 20 Bar's Indigent Defense Committee. Mike also goes 21 back a long way in indigent defense in Georgia. 22 He has a long history of indigent defense in 23 Georgia. He currently heads the Multi-County 24 Public Defender's office, which is the office 25 providing death penalty assistance statewide in KING COURT REPORTING SERVICE 10 1 capital cases in Georgia. 2 Doug Stewart is a former president of the 3 State Bar of Georgia. He has his own firm in 4 Gainesville. Doug is also very active in the 5 American Bar Association on matters of indigent 6 defense. He is a member of the ABA standing 7 committee on ABA Legal Aid and Indigent 8 Defendants, and he has a lot of ideas and contacts 9 and idea about this process. 10 Doug is going to be wearing two hats today, 11 both, as a past president and as a member of the 12 State Bar's Indigent Defense Committee. 13 We have two others that we invited here 14 today. Chief Justice Harold Clark, former Chief 15 Justice, hopes to be here. He hasn't gotten here 16 yet. He hopes to be able to make it. 17 And Linda Klein, who was the president of 18 the State Bar in 1997 and '98. And she probably 19 is not going to be able to be here because of a 20 mediation that she has today. She has a 21 statement, and members of the panel if you will 22 read that. 23 And so, again, we're very pleased to have 24 these people with us, and I will let the panel 25 begin. KING COURT REPORTING SERVICE 11 1 MR. DURHAM: Mr. Chairman, I guess if it's 2 appropriate, I'll go ahead and proceed. 3 I'm Jim Durham, President-Elect for the 4 State Bar of Georgia and I'm glad to be able to 5 pinch hit today for Jimmy Franklin, who sends his 6 regret that he was not able to be here. 7 It's a great pleasure to be here, and on 8 behalf of the State Bar of Georgia we appreciate 9 the opportunity that you're giving us to come here 10 today and talk about the resolution and our views 11 on changes that need to be made to the indigent 12 defense system in Georgia. 13 We have some outstanding attorneys here 14 today that are going to talk to you specifically 15 about the proposal and give some of the rationale 16 behind the proposal. 17 Mike Mears, Wyc Orr and Doug Stewart have 18 all been involved in indigent defense. Doug at 19 the national level. And they're going to go item 20 by item for you and give you a basic picture of 21 what the resolution stands for. 22 In addition, we're pleased, also, to have 23 some of the past presidents of the State Bar of 24 Georgia: Senator Gambrell, and also Doug Stewart, 25 and we're hopeful that perhaps Chief Justice Clark KING COURT REPORTING SERVICE 12 1 can make it. And we hope what they can give you 2 is a historical perspective of indigent defense in 3 the state and how it also ties in with the State 4 Bar of Georgia. 5 What I'd like to do, just briefly, is kind 6 of give you a quick synopsis of how we got to this 7 point. As you know, the State Bar of Georgia has 8 long supported indigent defense in this state and, 9 in fact, the Board of Governors, the governing 10 body of the State Bar of Georgia, recommended the 11 establishment of this commission to look at 12 indigent defense in this state. 13 Approximately, a little over a year ago the 14 State Bar's Indigent Defense Committee came to the 15 executive committee of the State Bar of Georgia 16 after study and consideration. They presented 17 several principles that they felt were important 18 in the development of any new indigent defense 19 system in the state, and they asked the executive 20 committee to look at it, review it, and perhaps 21 then recommend it to this Commission. 22 What the executive committee did at that 23 point is we tried to take those principles and 24 send it out to all segments of the Bar and the 25 judiciary and try to get some feedback on these KING COURT REPORTING SERVICE 13 1 particular principles. And over the course of 2 over a year we have heard from the Council of 3 Superior Court Judges; we've heard from the 4 prosecutors in the state; we have heard from the 5 District Attorneys; and we've heard from the 6 Georgia defense, the criminal defense attorneys in 7 the state as well as continue to hear from the 8 Indigent Defense Committee. 9 And this process has gone on for over a 10 year. We have had people come from the various 11 groups, make presentations to the executive 12 committee. We have had several presentations made 13 to the Board of Governors of the State Bar of 14 Georgia, and during this process we've even gone 15 into break-out sessions of the Board of Governors 16 where views dealing with these principles could be 17 expressed on all sides. 18 And, eventually, what has occurred is after 19 much debate, argument, and lots of revisions to 20 the initial principles that were set forth, we 21 came forward with the resolution that you have in 22 front of you that was brought to the spring 23 meeting of the Board of Governors in Savannah and 24 by majority vote that was adopted. 25 I mentioned this because I think it's KING COURT REPORTING SERVICE 14 1 important for you to understand that we have tried 2 to include everyone that we can in this process. 3 We've tried to include people so that we could 4 understand the various aspects that needed to be 5 looked at. 6 It's also served to educate lawyers 7 throughout the State of Georgia on indigent 8 defense, and I believe that the ultimate result is 9 that it solidified the State Bar of Georgia behind 10 this resolution. 11 Now, sitting here today, I can't tell you 12 that the over 30,000 lawyers in the State of 13 Georgia all agree with every aspect of this 14 proposal, or the proposal in its entirety, but, of 15 course, I can't think of any issue that I could 16 get 30,000 lawyers to all agree on. 17 But what I can tell you today is that the 18 State Bar of Georgia strongly supports this 19 resolution, and we believe that it is a very solid 20 and found -- solid and well-found resolution. 21 The issue of indigent defense is obviously a 22 very difficult question, and it's a difficult 23 question to wrestle with. From the general 24 public's standpoint, it's obviously difficult 25 because it's hard to make people understand the KING COURT REPORTING SERVICE 15 1 importance of having adequate representation in a 2 criminal defense matter. 3 You know, from a concept standpoint, 4 conceptually when you're talking about protection 5 of freedom in the context of a military attack or 6 a terrorist attack, it's real easy to understand 7 in that setting how you can protect freedom, but 8 in the -- from the concept of representing people 9 in criminal matters, that is a context that it is 10 very difficult for people to understand that 11 giving every person the right to have equal access 12 to competent and adequate criminal representation 13 also protects freedom. 14 One of the things that we want to do with 15 the State Bar of Georgia through this next year is 16 to do everything that we can to educate the public 17 on the indigent defense system in the State of 18 Georgia, and to also make them understand how 19 important it is that people, no matter where they 20 come from, when they're charged with a crime they 21 have the opportunity to have adequate and official 22 representation. 23 We hope that when this entire process is 24 over with, and when this Commission has reached 25 its final decision that it's a decision that we KING COURT REPORTING SERVICE 16 1 can take out, go to the general assembly, 2 hopefully get adequate funding for, and it can 3 have a major impact on the indigent defense system 4 in the State of Georgia as it now exists, and that 5 is what our hope is. 6 At this time, if I might, I'd like to turn 7 it over to Mike Mears, and Mike is going to begin 8 by discussing the resolution, itself, and 9 highlighting some of the points that need to be 10 made. 11 MR. MEARS: Thank you, Mr. Chairman, and 12 other members of the Commission. Thank you for 13 the opportunity of addressing you. 14 About five years ago I helped write a 15 history of the Indigent Defense Council, and one 16 of the subtitles of that was "25 Years Struggle to 17 Provide Adequate Representation for the Indigent." 18 I guess the next edition will have to be a 30-year 19 struggle because we're still struggling. 20 The resolution that was truly the work of 21 not just the Indigent Defense Committee of the 22 State Bar, but of the State Bar itself because 23 everyone had input into these final points that 24 were approved by the State Bar. 25 It's the best possible document that we KING COURT REPORTING SERVICE 17 1 could come to you with at this point in time. 2 Without getting too melodramatic about it, I keep 3 going back to the preamble of the Constitution and 4 I've always been troubled by the language in the 5 first sentence, "In order to form a more perfect 6 union." 7 I think that what we're doing with this is 8 trying to form a more perfect system for providing 9 indigent defense representation in the State of 10 Georgia. To do that, it is going to require all 11 three branches of government. It is going to 12 require judges, executive branch; it's going to 13 require all of us working together. 14 Obviously, it's going to require the 15 legislators to finally put it in place, and it's 16 with that spirit that these points were finally 17 honed, massaged, and finally put together so that 18 we could come together with a more perfect set of 19 resolutions. 20 The points I would like to address very 21 briefly, and hopefully if you have questions all 22 of us will be available to answer questions so I 23 won't spend too much time with them, but the 24 resolution, the first three points of the 25 resolution, "Indigent defense is a KING COURT REPORTING SERVICE 18 1 constitutionally mandated public responsibility." 2 I don't think that there is any substantive 3 dispute about that. The question is which public 4 are we talking about and who's going to be in 5 charge of maneuvering whatever we come up with 6 through the public access, the money, and to 7 access the courts. 8 Obviously, the controversial part of it 9 should be fully funded by the state that 10 adequately protects the constitutional rights to 11 effective assistance of counsel. 12 One of the problems, ladies and gentlemen, 13 is that some counties provide probably the best 14 possible public defense system that you could 15 think of in the State of Georgia. We've got some 16 counties, and we've got Judges, and we've got 17 court administrators that work tirelessly and do a 18 tremendous job, and that's got to be acknowledged. 19 However, there are other parts of the state, 20 because of lack of resources primarily, but 21 because of lack of education, we have a system or 22 systems that are not adequate to provide the 23 constitutionally mandated system of public defense 24 that the Constitution of Georgia requires, and 25 that's why there's got to be some involvement by KING COURT REPORTING SERVICE 19 1 the State at a level which will adequately fund 2 and support the system. 3 The third part of this resolution has to do 4 with the quality of representation. I try cases. 5 I'm a litigator. I go in courts all over. I 6 think the last count our office had been involved 7 in over 100 counties at some level in the last ten 8 years. 9 Some judges demand adequate representation. 10 Some judges aren't able to demand adequate 11 representation because they don't have the funds 12 that's necessary for that. There has to be some 13 type of state-wide involvement to assist the 14 Judges in running their courtrooms. 15 I think it has been mentioned a couple of 16 times. I have been in a lot of courtrooms and one 17 of the questions that came up earlier, Mr. Morgan, 18 is are the Judges going to lose control of the 19 courtroom? 20 I have been in the courtrooms of some of the 21 Judges on this panel and I've never felt like they 22 were not in control of their courtroom, and I can 23 tell you that that's across the board the status 24 in the State of Georgia. 25 However, the Judges' hands are tied because KING COURT REPORTING SERVICE 20 1 of lack of adequate State funding and lack of 2 uniform standards, performance standards. Not 3 appointment standards, but how do you judge the 4 quality of an attorney's representation? 5 Judges can't be left out to determine that 6 performance standard without some guidance and, 7 hopefully, the work of this Commission, and the 8 work of the legislator, and the work of the 9 Superior Court Judges panel. I say Superior Court 10 Judges, Judge Adams, because that's primarily 11 where I'm involved. 12 But there has to be some help given to 13 guidance and measuring the performance of 14 attorneys in these courtrooms. A state-wide 15 system would provide the vehicle for that. 16 Those are, in my opinion, at least for this 17 morning, some of the things that I wanted to bring 18 to your attention. There's got to be a state-wide 19 system. There has got to be a system that 20 adequately funds a system of indigent defense 21 representation. There's got to be a system, 22 ladies and gentlemen, that recognizes the role of 23 the Judges, that recognizes the role of the 24 executive branch, and recognizes the role of the 25 legislative branch, and I think that what this KING COURT REPORTING SERVICE 21 1 committee of the State Bar and the State Bar, 2 itself, has put in place is a statement that will 3 give this Commission, and hopefully the 4 legislators, some guidance about what is needed in 5 the State of Georgia. 6 And I appreciate you letting me make this 7 statement, and after everyone is finished 8 hopefully we can answer any specific questions. 9 I'll turn it over to my good friend, Wyc 10 Orr, who has been around forever. 11 JUDGE BIRCH: He used to be my law partner. 12 MR. ORR: Thank you, Mike. Mr. Chairman and 13 members of the Commission, I appreciate, also, the 14 opportunity to be with you and be a part of this 15 extremely important and indeed historic effort. 16 When I think about all of this, I think the 17 words that come to mind among many others are that 18 we can do better, we should do better, and we must 19 do better. 20 Present-elect Jim made remarks about how 21 this effort has been underway for a year or more, 22 and I'm sure he would join in my saying this. 23 That's true. And in the broader context, it's 24 been in progress for three decades or more. 25 The thing that strikes me the most when we KING COURT REPORTING SERVICE 22 1 think about this subject and when we gather to 2 discuss this subject is how long we've been 3 working on it. 4 I remember when I chaired the Indigent 5 Defense Council in 1987, 15 years ago. I remember 6 in that Constitutional bicentennial year that we 7 were talking about essentially the same things 8 we're talking about now, and one could say without 9 exaggeration that we have not made any really 10 discernable progress in that 15-year period 11 despite the committed efforts of the Bar, the 12 judiciary, of the legislation. We have not made 13 discernable progress. 14 My first year in the legislature was the 15 1989 session. That's the year that the State of 16 Georgia first appropriated any money for the 17 Georgia Indigent Defense Council. The State 18 budget that year was somewhere in the vicinity of 19 six to seven billion dollars. 20 Despite the fact that in the 13 years since 21 that time that that budget has roughly doubled, a 22 comparison shows how we have not made discernable 23 progress, and I think we have to be intellectually 24 honest enough with ourselves to recognize that our 25 state has been blessed, financially and otherwise, KING COURT REPORTING SERVICE 23 1 in that 13-year period of time. 2 We cannot point the lack of resources to 3 explain our lack of progress in this important 4 area. In that year, 1989, the legislature 5 appropriated $1 million for this effort. As I 6 recall the numbers then, the estimates were that 7 the counties were paying something on the order of 8 $19 million; that of the $20 million or so that 9 was then seen as the cost of our indigent defense 10 efforts state-wide, $1 million was being paid by 11 the State and some $19 million, approximately, by 12 the counties. 13 Well, since that time instead of leaving $19 14 million to the counties, we're leaving somewhere 15 in excess of $40 million to the counties despite 16 the fact that we've seen a doubling in our budget 17 from six to seven billion, I'll say twice that or 18 more. And so we have the means to do better. 19 What we have to now supply is the wisdom and the 20 will to do better. 21 I know that there are pressures. I know 22 that there are voices that say local control, 23 local control. And this proposal the State Bar 24 allows for some role for that where it is 25 demonstrated on the local level that the KING COURT REPORTING SERVICE 24 1 requirements of law and the Constitution can be 2 met by some deviation. 3 There is allowance made for that, but what 4 we have now is we have a system where local 5 control is the system. It is the rule. And while 6 it is allowing some areas to meet, arguably, the 7 requirements in so many other areas, so many other 8 local jurisdictions, it is not allowing the 9 requirements of the Constitution and the law for a 10 proper and adequate defense of the indigent 11 accused to be met. And that is why I think the 12 State Bar has come to the realization that a 13 state-wide system, a true state-wide system, a 14 public defender system is necessary to achieve the 15 uniformity that we should have in our state. 16 I hope you will recognize that the State Bar 17 of Georgia is a very diverse group. It is a group 18 which includes every part of the political 19 spectrum, from the left to the right. It is a 20 group that brings a very balanced decision-making 21 process to a decision for that very reason, and it 22 has, after long consideration, it has recommended 23 these points to you for significant change to our 24 system of indigent defense. 25 That is why it commends itself so well to KING COURT REPORTING SERVICE 25 1 you. And I urge you to see that; to see that this 2 30-year plus effort has culminated with a wise 3 proposal that will allow us to get to where we 4 need to be to meet the needs of the indigent 5 accused in our state. 6 Again, when you think about this subject so 7 many important words from the past ring in your 8 ears. I think about Martin Luther King, Junior. 9 I think about his comments about how our most 10 hallowed documents hold out to us a set of IOUs, 11 which promised promises, some of which are yet to 12 be fulfilled, and it is our responsibility to 13 fulfill those promises at long last. 14 You can start with the United States 15 Constitution and its guarantee of right to 16 counsel. You can look at the decisions of the 17 United States Supreme Court more than 30 years 18 ago, Gittings and others, which promised, promised 19 the right to effective assistance of counsel. 20 Some of those promises are still unmet in 21 Georgia, and it is our responsibility at this time 22 at this place to finally make good on those IOUs. 23 We should not wait any longer. 24 On that same point, I think we should ask 25 ourselves the questions of how long can we abide? KING COURT REPORTING SERVICE 26 1 Promises on paper, not just the U.S. Constitution, 2 but the Georgia Constitution and Georgia statutes 3 which promise an adequate defense of indigent 4 accused. 5 How long can we feel that we are 6 intellectually honest when we allow these words to 7 remain on paper, but also to remain unfulfilled 8 and unmet in practice? Not only does the Georgia 9 Constitution guarantee the right to counsel, but 10 allow me just for a moment to refer to the Georgia 11 Indigent Defense Act and what it says, and what it 12 has said since 1979, for some 23 years now. 13 It says this. I'll refer to Code Section 14 17-12-31, Declaration of Policy. "It is the policy 15 of this state to provide the Constitutional 16 guarantees of the right to counsel and equal 17 access to the Courts to all its citizens in 18 criminal cases and to provide (1) Adequate defense 19 services for indigent persons accused of crime; 20 adequate compensation for counsel who represent 21 indigent persons accused of crime; guidelines to 22 ensure that indigent persons receive a fair 23 trial." 24 We have not been meeting that uniformity in 25 our state since those words were passed into law KING COURT REPORTING SERVICE 27 1 23 years ago, and I think that a decent regard for 2 our own self-respect, as well as a lot of other 3 important values, dictates that we have to make 4 good on this IOU at long last. 5 I also thought about words from somebody I 6 consider a personal hero. Certainly somebody, one 7 of our Supreme Court Justices who was in the 8 forefront of this effort for many, many years 9 Charles Welch, who we lost ten years ago, very 10 untimely this year. 11 I think about his words in his last opinion, 12 Davis versus City of Macon, that he wrote in 1992, 13 and he talked about our Constitution, the 14 amenability clause is actually what he was talking 15 about, but he said that some of those words have 16 lain dormant for so many years. 17 We've got a constitutional guarantee in our 18 state Constitution, the right to counsel, and in 19 the Georgia Indigent Defense Act in this 20 declaration of policy that have lain dormant for 21 many, many years for many, many accused. It is 22 time, I would submit to you, that we make good on 23 that. 24 Our state, in my judgment, is a great state. 25 We can point with pride to the fact that when we KING COURT REPORTING SERVICE 28 1 compare ourselves to many of our Southeastern 2 United States fellow states, as well as the states 3 beyond that area, that in its progressivism, in 4 its march toward progress, we've done very well in 5 so many respects. And I would submit to you that 6 it's time for us to add to that list of 7 progressive action and enlightened thinking a 8 proper system of indigent defense. 9 And so in closing I would urge you to help 10 the State Bar and to help those who have committed 11 so many years of their life over three decades and 12 more to getting us a proper system of indigent 13 defense. 14 I urge you to help us make that reality; to 15 make good on those IOUs; to make good on those 16 promises that we have set in writing. It is now 17 time to set in motion to do better. 18 We can, we should, and we must. And thank 19 you very much. 20 MR. STEWART: I can hardly match the 21 eloquence of my fellow Gainesville lawyer, Wyc 22 Orr, or the experience of vice chair of that 23 committee, Mike Mears, but there are a couple of 24 things that I want to point out. 25 One of them is the issue of state funding. KING COURT REPORTING SERVICE 29 1 We have, and I think all of the past presidents of 2 the State Bar here, I think, that speak to this 3 issue will agree with me that we have been very 4 supportive over the last 40 years and, indeed, 5 since the State Bar was founded nearly 40 years 6 ago and before that the Georgia Bar Association, 7 which was a voluntary bar association, we've been 8 very supportive of the judicial system. 9 I can't -- there is no State Bar president 10 in my memory who has not urged greater funding for 11 the judicial branch of government. I believe that 12 the last percentage that I knew about was the 13 percentage of funding for the judiciary, and that 14 includes the whole function: The judicial system, 15 Judges, court attendance, and the prosecution. 16 The prosecutorial function was less than one 17 percent of the State's budget. 18 It remains that way. We have done what we 19 could to fully fund or at least fund on a 20 state-wide basis a minimum, although not great 21 salary, for prosecutors and Judges. A whole lot 22 more than it was 15 years ago even. 23 And now what we need to do is do the same 24 thing with indigent defense, and we need to do 25 it -- we need to take that burden off of counties. KING COURT REPORTING SERVICE 30 1 Counties -- we have counties that are rich 2 counties. I live in one that's probably semi that 3 way. There are a lot around here like Cobb, and 4 Gwinnett, and DeKalb County that are truly blessed 5 with material things, and all of those counties 6 have pretty good systems. Not that any of them 7 can't be improved, but they could be. 8 But there are counties in Southwest, and 9 Southern Georgia, and maybe even up in the 10 mountains in Georgia who are not so blessed. And 11 we need to do the same thing with those counties 12 and those judicial circuits that we have done with 13 the schools, and that is make a balanced program 14 throughout the state and include indigent defense 15 as part of this judicial system and perhaps raise 16 the State's budget to maybe even two percent of 17 the State's budget. 18 Boy, that would be a big increase for a lot 19 of people: The Judges, the prosecutors, the 20 indigent defense effort, and take that burden off 21 of the counties. 22 Now, I know there is going to be give and 23 take there, you know? The counties say they, 24 particularly the ones that have a high population 25 and a lot of people moving through the courts that KING COURT REPORTING SERVICE 31 1 they've got a lot -- the clerk's office, when it 2 collects the fines and forfeitures, turns that 3 money over to the county. That's a lot of money 4 in some counties. 5 And you're going to say well, you know, if 6 the State's going to fund it, what's going to 7 happen to that money? Those are practical things 8 that you've got to work out. They are things that 9 have to be worked out, but there are things that 10 need to be looked at over this whole system. 11 And the last thing I'll say is there is a 12 case of Xavious versus Gibson that the Supreme 13 Court of the United -- I mean, Georgia, ruled over 14 the last ten years that said that there is no 15 burden on the State to fund any post-conviction 16 representation even in a capital case. 17 We are probably one of the few states, maybe 18 the only state in the union, that does not give 19 some funding to post-conviction representation in 20 the way of habeas corpus and other post-conviction 21 after the initial appeal efforts. 22 With the federal restrictions on what you 23 can do in post-conviction proceedings in the 24 federal area, you must have exhausted certain 25 remedies within the state, and if you don't do it KING COURT REPORTING SERVICE 32 1 within a certain amount of time you've got 2 problems. That needs to be done. 3 And I've got some personal experience with 4 this. In 1988 Chief Justice Tom Marshall called 5 me up and says there is a death row inmate that 6 was convicted of murder in Rome. His appeals have 7 been exhausted. I want you to represent him in 8 his habeas corpus case, and what are you going to 9 say to the Chief Justice of the State of Georgia? 10 I said, "Well certainly." 11 Thirteen years later, that representation 12 ended. I had a lot of good help from people like 13 Mike Mears and the Georgia Resource Center, but 14 essentially my firm devoted my time to that. 15 I would like to see the percentage of cases 16 in Georgia where post-conviction matters are 17 attended to by out-of-state law firms. There are 18 a lot of them. I think you would find that pro 19 bono work from Washington, D.C., New York City, 20 San Francisco, other places when we've got good 21 adequate counsel here that could be doing that, 22 but the problem is that there is no incentive and 23 we don't have enough lawyers that are experienced 24 in that area. 25 And so you need to look at that, and so I KING COURT REPORTING SERVICE 33 1 would think that this -- we have a glorious 2 opportunity here. I think this Commission, and I 3 know you may want to hold it against the State 4 Bar, but a lot of the reason for this Commission's 5 existence is because of what the State Bar has 6 urged the Supreme Court to do. 7 And this Commission, I think, was formed for 8 a lot of reasons, but one of them was a resolution 9 of the State Bar several years ago that a 10 Commission like this be formed. And y'all are 11 doing great work, and I know it's a hard 12 responsibility, and it's taken a lot out of your 13 otherwise working lives to do this, but I 14 appreciate what you've done, and we would just 15 like for you to pay attention to what the State 16 Bar has asked you to look at when you make your 17 final decision on what you're going to recommend 18 to the Governor, and to the general assembly, and 19 to the courts in this state. Thank you. 20 Now, I have been asked to introduce one or 21 more of our past presidents who are here. One of 22 them is David Gambrell. 23 David, we tried to figure out today, I think 24 was about the fourth president of the State Bar 25 after it was founded in '63 or '64. He, of KING COURT REPORTING SERVICE 34 1 course, has been a United States Senator. He has 2 been devoted to public service for as long as I've 3 known him and longer. David Gambrell from 4 Atlanta. 5 MR. GAMBRELL: Thank you, Doug and 6 Mr. Chairman, and members of the Commission. I 7 appreciate the opportunity to speak with you today 8 in support of this effort. I also want to express 9 profound thanks to our committee of the State Bar, 10 which has been meeting this effort for several 11 years. 12 And it has already been mentioned that it is 13 not easy to get 30,000 lawyers together on any 14 subject. I used to say if we have 30,000 lawyers 15 we've got probably 38,000 opinions. And so they 16 have moved this along to this point. I 17 congratulate them not only on these, but on all of 18 the work that they have done. 19 My task is to, I think, report on the 20 history of this movement. There seems to be some 21 debate here already about whether it's been 30 or 22 40 years. If it's 30 years, I don't know anything 23 about it because my time was before 30 years. 24 But in truth it did start back during the 25 era of the '60s when I was president of the State KING COURT REPORTING SERVICE 35 1 Bar. The '60s, I think most if not all of you 2 will remember, was a time that was fraught with a 3 lot of issues, both within and without the Bar. 4 It was not a pleasant time and it is even better 5 times than now, and we look forward to improving 6 our time. 7 I remember, for instance, in the midst of 8 the State Bar meeting in 1968 which I was 9 presiding, Robert Kennedy, the immediate former 10 Attorney General of the United States, was 11 assassinated, and we had a moment of silence in 12 expression of concern about that event at that 13 meeting. 14 Of course, that was not the only event of 15 that type that happened. Martin Luther King was 16 assassinated in the spring of '68, about two 17 months before this meeting that I described. 18 Our intention was not to, I'll say, focus on 19 this specific issue. At that time, and those of 20 you who are lawyers will be more concerned than 21 others, but the State Bar, as had been mentioned, 22 had been a voluntary organization. It was said 23 that silk stocking lawyers had the Georgia Bar 24 Association, but the leadership of that voluntary 25 group stressed for what we call mandatory KING COURT REPORTING SERVICE 36 1 incorporation of the Bar code that all lawyers 2 would belong to the official organization and that 3 the organization will speak for the entire Bar. 4 And that was accomplished in 1963 and '64. 5 After that we spent some time defending that. Not 6 everybody agreed to it and whether it was valid or 7 not, and it had a lot to do with that; however, we 8 also put together the Institute of Continuing 9 Legal Education which has been, I think, next to 10 the disciplinary program, the most significant 11 thing we've done. And that's behind, I think most 12 of you know, the establishment of the State Bar 13 Center in downtown Atlanta, which used to be 14 headquarters of our continuing education program. 15 The main thing that happened during my year 16 and, again, it's one of these things that people 17 will tell you that, you know, I thought we always 18 had that. What was called the unification of the 19 judicial system. The organization of the courts 20 into one pyramid with the Supreme Court at the 21 top, which is the way the thing operates now. 22 But before that every Superior Court Judge 23 and circuit was an empire unto itself. The Court 24 of Appeals operated independently. The courts 25 were ordinary and each one had its own way of KING COURT REPORTING SERVICE 37 1 operating, and all of that was pulled together. 2 And that was controversial, as you can imagine, 3 and met with resistance among the Judges. 4 I'm saying this because I want you to know 5 that there was a lot going on in those times, but 6 insofar as what we are talking about now, what 7 happened was in 1964 the Supreme Court of the 8 United States decided a case called Escovito 9 versus Illinois, and then in '66 Miranda versus 10 Arizona. 11 And it established some principles about the 12 defense of persons, not just the indigent but 13 anyone if it was necessary in order to meet the 14 U.S. Constitutional principles. 15 And so what we are talking about here today 16 you might say arises out of that fountain that 17 occurred right in the midst of an era of the '60s. 18 Not only the Bar, but the law enforcement 19 community was confronted with something that maybe 20 wasn't new, but was necessary or mandatory, and 21 now it's accepted universally. 22 I don't say that it applies in every case, 23 but nobody disputes that Escovito and Miranda are 24 still in effect. The Bar's reaction to that at 25 that time was to urge that a better, a stronger KING COURT REPORTING SERVICE 38 1 effort be put on a state-wide basis behind the 2 defensive units, and we advocated the 3 establishment of a state-wide system of indigent 4 defense. 5 Actually, when I was asked to participate in 6 it I couldn't recall exactly what the sequence of 7 event was, but I looked back and found the 8 president's report that I made in 1968, and I 9 found that in that year we had been successful in 10 getting the legislature to adopt, and that was in 11 1968, an Indigent Defense Act which provided, it 12 will say for uniformity in the sense that 13 everybody is required to do something about it and 14 it would be funded by and managed locally. 15 That was the best that we could get at that 16 time. The idea of having a uniform state-wide 17 system to protect it. 18 But the lawyers knew at that time, as we 19 know today, that that was just a baby step, you 20 might say, in getting to what was going to be 21 necessary and what was also going to be just. 22 At the heart of what we are talking about 23 here is what was set forth in the Escovito and 24 Miranda cases. The Supreme Court of the United 25 States will and they should require high standards KING COURT REPORTING SERVICE 39 1 of professional competence in indigent defense, 2 and they should require adequate financing, and 3 they should and will require state-wide, if not 4 nationwide, uniformity. 5 Now, these are the goals which the State 6 Bar's resolution called for and I am particularly 7 proud of the work of this Commission, and of the 8 State Bar, and to the product that they brought 9 out, the method in which they generated this 10 report, and for the quality of the report, and I 11 would like to add my support to that effort. 12 Thank you. 13 MR. STEWART: Former Chief Justice Harold 14 Clark, apparently, could not make it this morning. 15 Harold has some physical problems that weigh on 16 him and, apparently, they are overcoming his 17 desire to be here, perhaps his ability to be here. 18 But I remember when Harold was president of the 19 State Bar, I believe, in about '74, '75, '76, 20 somewhere around there and, of course, it was in 21 that decade that the State Bar sponsored two 22 things that came to fruition. 23 One of them to a better fruition than 24 indigent defense, but one of them was the 25 establishment of a corporation to provide legal KING COURT REPORTING SERVICE 40 1 representation to poor people. The Georgia Legal 2 Services Corporation which, in conjunction with 3 the Atlanta Legal Aid, which is an organization 4 that had been sponsored by the Atlanta Bar 5 Association since the 1920s, became a model for 6 the United States in providing indigent civil 7 representation. 8 And as we learned later on in the '70s that 9 the State Bar was instrumental under the 10 leadership of Harold Clark and other presidents 11 during that decade in establishing or getting the 12 General Assembly to establish the Georgia Indigent 13 Defense Council. 14 We were not successful in getting the 15 general assembly to fund it, but we were 16 successful in getting it created and, fortunately, 17 we kept it on the books until the '80s. And I was 18 president in '81 and '82, and we were able toward 19 the end of that decade to get some funding. 20 And that funding has -- we are thankful -- 21 has increased, but it's only about a tenth of what 22 it needs to fully fund indigent defense in 23 Georgia. 24 And in the '90s Linda Klein, who could not 25 be here but wanted to be, and who has sent a KING COURT REPORTING SERVICE 41 1 statement, asked me to read this: "Without 2 exception, every year the State Bar of Georgia 3 supports the call for for adequate funding for 4 indigent defense. 5 The lawyers of Georgia do this even though 6 it is not a popular position. We do this because 7 it is the right thing, and because we are sworn to 8 uphold our Constitution which requires it. I am 9 proud of the State Bar's unfaltering record on 10 indigent defense. 11 When Wilson DuBose asked how he could help 12 the State Bar committee work, he got more than he 13 dreamed. When I asked him to chair the Indigent 14 Defense Committee, he got the biggest job in the 15 Bar. 16 The Indigent Defense Committee is 17 responsible for advising the Bar and the public 18 about the status of important Constitutional 19 rights. He worked with a diverse group of 20 committee members. 21 Despite being outside the field of practice 22 of criminal law, Wilson DuBose has thoughtfully 23 led this committee for nearly five years. He and 24 his committee have spent that time studying and 25 planning. Nothing has been done in haste. KING COURT REPORTING SERVICE 42 1 The culmination of their work is before you, 2 endorsed by the diverse State Bar Board of 3 Governors, which also deliberated long and hard 4 before bringing it to you. 5 Please study it, ask questions, and use it 6 to the benefit of our great state. Thank you. 7 And, Mr. Chairman, I'll deliver this to the 8 reporter and ask that it be spread on the record 9 of this committee. 10 MR. DURHAM: If I might just finish up, I 11 want to thank all of the attorneys that have come 12 here today to talk about this very important 13 proposal, and the State Bar also thanks the 14 Indigent Defense Commission for allowing us to be 15 here and allowing us to come to you and to talk 16 about the resolution. 17 In conclusion, let me just say this: There 18 is, without question, that one of the most 19 important aspects of this is being able to obtain 20 appropriate funding for indigent defense. But I 21 imagine that we will, for years, continue to 22 debate about adequate funding. 23 But in addition to the funding, the delivery 24 system, itself, and how legal services are 25 delivered to criminal persons accused of crimes is KING COURT REPORTING SERVICE 43 1 extremely important. And despite the fact that 2 you may have all of the money, if there is a flaw 3 in the system that legal services are delivered, 4 it's not going to work. 5 And we believe that the proposal that we 6 have submitted sets forth guidelines that answer 7 those questions, and we certainly hope that this 8 Commission will entertain these ideas and we 9 certainly appreciate your time. 10 CHAIRMAN MORGAN: Thank you. Well, I'm sure 11 I speak for all of the members of the Commission 12 in expressing our deep gratitude to the State Bar 13 and to each of you gentlemen for being with us 14 this morning and sharing your views. 15 We know how much work Wilson and his 16 committee and the State Bar have put in on this, 17 and we are very, very grateful for your efforts. 18 At this point, I'd like to ask if any of the 19 Commissioners have any specific questions or 20 comments for the representatives from the State 21 Bar here this morning. 22 MS. DEVINE: I have a question. I'm Flora 23 Devine. I chair the Georgia Indigent Defense 24 Council presently, and I'm also an attorney in 25 Cobb County. KING COURT REPORTING SERVICE 44 1 The funding issue, I think, is an 2 interesting one to begin on and to end on. And 3 some of you, I know, are former elected officials, 4 and so from your point of view and your experience 5 in dealing with issues such as this, with 30 or so 6 years before the state legislature, what advice or 7 counsel can you give us on that funding issue? 8 How can we help legislators to buy into whatever 9 might be the recommendation that is forthcoming 10 from this group? 11 MR. DURHAM: Well, Wyc is probably going to 12 be the best person to answer that, but let me just 13 mention this. One of the things that the State 14 Bar has to do, and what we intend on doing, is 15 trying to educate the public about the indigent 16 defense system in Georgia. 17 I think if the public can understand the 18 situation, if they can understand the problems 19 that we have, then I think the legislators are 20 going to hear about it as well. 21 And that's one area that the State Bar of 22 Georgia can be actively involved in. 23 MR. ORR: Well, I'll break that down in my 24 own mind into two separate parts. One is that, to 25 the extent that it's being funded now, obviously KING COURT REPORTING SERVICE 45 1 taxpayers are already paying for it. It's just at 2 what level are they paying for it? 3 And I remember so well in the '80's when 4 nothing was being funded by the State legislature. 5 The Georgia Indigent Defense Council subsisted off 6 of -- it seems like it was $10,000 or $15,000, and 7 that came some from the Supreme Court of Georgia, 8 and some from the American Bar Association, as I 9 recall, with a grant, and all it allowed counsel 10 to do was, basically, to meet periodically, pay a 11 part-time executive director, and just sort of 12 keep the concept alive. 13 And the way that was ultimately changed, 14 however minimally, was that we finally realized 15 that this is not a subject that will ever be the 16 subject of any public ground swell, but it is a 17 subject that has practical governmental 18 ramifications. Who is going to pay for it? 19 So I think it can be said that the council 20 wised up in the 80's and realized that the answer 21 was not just to the state legislature, it was 22 through County Commissioners. 23 And so we developed a road show where we 24 went all over the state and addressed different 25 groups of County Commissioners and, basically, KING COURT REPORTING SERVICE 46 1 beating the drum in a very pragmatic way not so 2 much conceptually of the right to counsel, but the 3 right for counties to have the state meet its 4 responsibilities under the Constitution under the 5 law. 6 We talked about things like in most criminal 7 prosecutions if they're not traffic offenses or 8 what have you, it doesn't say Hall County, Georgia 9 versus the accused, or Tift County, Georgia, 10 versus the accused. It says the State of Georgia 11 versus the accused, and there is a reason for 12 that. 13 And so we went to the County Commissioners 14 all over the state and said look, help us through 15 your state legislators get the state to accept 16 more of this responsibility in paying the tab. 17 And so I still think that that's an 18 important part of the answer, is it's through 19 County Commissioners and see that they use their 20 Commissioners and other people at the local level 21 to convince individual state legislators to fund 22 this at the state level, as it should be funded. 23 Now, the other issue, I think, is even at 24 $40 million to $45 million, or whatever that 25 number is today, that is being paid state-wide KING COURT REPORTING SERVICE 47 1 indigent defense. I think we have to recognize 2 that that's not adequate. That's not adequate. 3 That's the second part of the proposal of 4 the puzzle, I think. And in order to meet the 5 requirements, for example, of this resolution 6 which talks about, in very real money terms, it 7 talks about, for example, that it's the State 8 responsibility, which is what the law that I 9 referred to said, and should be fully funded by 10 the state, fully funded by the state. 11 It also talks about the fact, in Point No. 12 4, that the process for selecting and compensating 13 indigent defense counsel should assure that 14 indigent defense counsel and prosecutors are 15 comparably compensated. 16 It goes on and talks about how we've got to 17 provide investigators, paralegals, expert 18 witnesses. Somebody in our group this morning was 19 talking about the fact that when they've been 20 appointed in criminal cases sometimes in some 21 counties in this state when there was 22 investigative work that needed to be done out of 23 state that they couldn't get any approval of the 24 funds to hire an investigator and so the lawyer 25 sometimes finds himself or herself in one or two KING COURT REPORTING SERVICE 48 1 positions. 2 Either don't do the job that one is 3 appointed to do. Well, that should be 4 unacceptable completely. Or, go out of state for 5 no pay in order to do the kind of investigative 6 work that's got to be done. Well, that's not an 7 acceptable alternative to present appointed 8 counsel with. 9 And so I remember I was appointed on a 10 double capital murder case six or eight years ago. 11 Part of doing the job to properly defend involved 12 a good bit of investigative work that had to be 13 done in Burlington, Vermont. That's a long ways 14 from Gainesville, Georgia. And yet at the same 15 time, at the same time, it's what had to be done. 16 Well, I was co-counsel. There was two of us 17 appointed. We had to find a way to get that done. 18 I had the good fortune of having a lawyer who was 19 in our office at that point in time who grew up in 20 Burlington, Vermont, who happened to have grown up 21 with one of the public officials in the 22 prosecutor's office there that had the key to the 23 records of this accused juvenile's past that were 24 crucial to his defense. 25 And it just so happened that that lawyer in KING COURT REPORTING SERVICE 49 1 our office was going to visit family in New York 2 that was no more than 100 miles from Burlington, 3 Vermont, during the Christmas holidays. 4 Well, that was perfect, you know? We were 5 able to get him to go over there and talk to that 6 friend of his and get the records we needed to do 7 the job we had to do. But if that hadn't been 8 available to us, we would have had to have found 9 another way to do it. We would have had to have 10 gotten that done. 11 But experience shows that a lot of times 12 when that's the quandry that a lawyer is placed in 13 that many times that's not going to get done. So 14 the only way to do that is through an adequate 15 level of compensation where people have got the 16 access to the investigative resources, and 17 experts, and what have you, to get that kind of 18 thing done. 19 That, it seems to me, self-evident that's 20 going to take more money than the $40 million or 21 $50 million that is being provided now at any 22 level in Georgia. 23 MR. KURTZ: That gets to the point that I 24 wanted to ask. The financial questions break down 25 into two dimensions. One is the proportion that KING COURT REPORTING SERVICE 50 1 the -- who's going to pay? And your resolution 2 speaks very clearly to that. You think the State 3 of Georgia should pay. 4 But the other dimension is how much should 5 they pay? And you're just edging into that here. 6 And I know that it doesn't appear in the 7 resolution, but I want to see what your best 8 estimates, what the committee's best estimates and 9 the Bar's best estimates are. How much more 10 should it cost, should it be costing than the 11 present is it -- Mike? 12 MR. SHAPIRO: The number is $55.4 million. 13 MR. KURTZ: And what would be the State's 14 and the County's contribution? 15 MR. SHAPIRO: $55 million or $56 million. 16 MR. KURTZ: And, obviously, you think that 17 that's not enough. And how much is enough? Do 18 you have any sense of that? 19 MR. ORR: I have this sense. I have the 20 sense that Mike Shapiro and Mike Mears, who are on 21 the front line day to day probably have a lot 22 better feel than I do, and so I'll defer to them. 23 MR. KURTZ: Mike. 24 MR. STEWART: Well, first of all, before 25 Mike starts his, let me make this statement. KING COURT REPORTING SERVICE 51 1 MR. KURTZ: No one wants to say this number, 2 is that it? 3 MR. STEWART: I don't know the number, but I 4 do know this. There was a lot of criticism when 5 we presented this resolution, and some of it 6 coming from the District Attorneys until they 7 felt -- we had said we want parity of funding 8 between District Attorney's offices and indigent 9 defense offices, and the District Attorney's 10 office pointed out to us, rightly so, that the 11 District Attorney's office has a lot more to do 12 than just trying people accused of violating 13 criminal laws. 14 They have a lot of interstate collection of 15 deadbeat parents, money that they owe. They've 16 got other things. They've got probation to worry 17 about. They've got a lot of other things, and so 18 we pared what we had said down, not to make a pun, 19 but we said what we had pared down to providing 20 the same resources for the investigation and trial 21 of cases and the same compensation for that, that 22 factor, as the prosecutor's office said. 23 And so we're not talking about true parity. 24 In other words, if the District Attorney's office 25 in Hall County spends $2 million a year that KING COURT REPORTING SERVICE 52 1 doesn't mean that the indigent defense counsel in 2 Hall County should get $2 million a year because 3 there is a part of that $2 million that goes to 4 functions other than representing the state or 5 representing criminally accused people. I wanted 6 to make that point. 7 MR. DURHAM: And I think Mike's going to 8 answer your question. 9 MR. KURTZ: I can still change his grades 10 and I can still change your grades. I just wanted 11 you to both know that. 12 MR. DURHAM: I just wanted to tell you, I 13 never answered your questions in law school. 14 MR. KURTZ: That's how you get to be 15 president of the State Bar. 16 MR. ORR: And worse yet, you can change my 17 son's grades right now. 18 MR. MEARS: Professor Kurtz taught me what 19 little I know about criminal procedure. 20 MR. KURTZ: That's not true at all. 21 MR. MEARS: First of all, let me just 22 preface this very briefly. For a number of years 23 I was a mayor of a relatively small town right 24 next door to us, and I can tell you from personal 25 experience from Decatur. Some of you on this KING COURT REPORTING SERVICE 53 1 Commission have intimate knowledge of what it's 2 like to be mayor of a small town. 3 It is nothing more demanding of an elected 4 official: Energy, time, credibility, and funding 5 issues. There is always someone that wants a 6 better school. They want the roads paved. They 7 want a better police department. 8 The answer to your question, Mr. Kurtz, I'm 9 going to go back to Senator Gambrell's reference 10 to the '60s. Back in the '60s, Bob Dillon wrote a 11 song that had a line in it, "Dignity has never 12 been photographed." 13 I'm not sure that we're ever going to be 14 able to photograph what adequate representation 15 is. 16 MR. KURTZ: I thought that you were going to 17 tell me that the answer is blowing in the wind. 18 MR. MEARS: I was getting there. The issue 19 of adequate funding and what it takes, I think 20 that Mike Shapiro as much as anyone in the state, 21 has a grasp of the numbers more than anyone else, 22 and I think the figures that he's talked about are 23 close to where we need to be going with adequate 24 funding. 25 We can't put a cap on it, though, because in KING COURT REPORTING SERVICE 54 1 some cases, some cases are handled somewhat 2 routinely, but you can't allow an attorney to be 3 put in a position like Mike says, that I'm going 4 to do justice on this case and I'm not going to do 5 justice on that case. 6 Justice hasn't been photographed. It's been 7 written about, but we have got to provide an 8 adequate system. And this is where the 9 leadership, there is why this whole funding issue 10 is so important. It's not only about adequate 11 funding. It's not only about the dollars and 12 cents. It's about the dignity that we're going to 13 give to our Constitutional requirements in the 14 criminal justice system. 15 The Constitution of Georgia and the United 16 States has never said that you have to have equal 17 rights based upon how much money you've got. This 18 is a Fourteenth Amendment issue, Professor Kurtz, 19 as you well know. This is what we're going to do. 20 We're going to get a different justice in 21 Dooley County than you do in Toombs County. Or 22 are you going to demand that you get adequate 23 representation? It's going to cost $60 million, 24 $70 million at least. 25 I don't know the answer as to how much. I KING COURT REPORTING SERVICE 55 1 think the real answer is, are we willing to make a 2 commitment to the leadership to make sure that 3 whatever the cost is that it be adequate? 4 And this goes back to the point of having a 5 state-wide uniform system. You can't control the 6 cost with a state-wide public system in a manner 7 that you can't control it with the piecemeal 8 system that's in place now. 9 A state-wide system would ensure that there 10 are some controls over the costs, whatever those 11 costs may be. 12 CHAIRMAN MORGAN: Judge Birch. 13 JUDGE BIRCH: Yeah. Recently I noticed a 14 article, in fact I think it was in yesterday's 15 paper in Atlanta, where the article discussed the 16 cost of a capital case, and I think they looked at 17 the case background, a decent case. The only 18 thing that I regret is that they totaled up all of 19 the figures that they were throwing out because I 20 think that would have had a lot more impact. 21 Perhaps Bill Rankin can talk to his colleagues 22 over there about that. 23 It always seems to me that -- we heard a 24 quote here, and I'm sure I'll get it wrong, but 25 the gist of it I think I got. A politician once KING COURT REPORTING SERVICE 56 1 said, "Let me see if I've got this straight. I've 2 got to appropriate money to lock them up; I've got 3 to appropriate money to keep them locked up; and 4 now you want me to appropriate money to turn them 5 loose?" In other words, it's a tough political 6 sell. 7 I always wondered, and I want you to get on 8 the side of the legislature and to try to sell 9 this to folks, it seems like that what the 10 legislators need is some practical political 11 cover. 12 I've often wondered why we couldn't get a 13 large accounting firm or some group to do an 14 audit. Taking, let's say, an inmate who has been 15 through the system three or four times. It 16 doesn't have to be a capital case, but it did come 17 to mind, like the Allday case. 18 If you don't get sufficient defense the 19 first time, the State Court or the Federal Court 20 says it's ineffective assistance of counsel. You 21 have to go through the whole thing again. The 22 same kind of addition that was done in that 23 article yesterday where the prosecutorial cost, 24 jail time cost, investigatory cost to try that 25 person a second time. KING COURT REPORTING SERVICE 57 1 It's kind of like the old commercial on TV 2 where a fellow comes out with a mechanic with the 3 oil filter. He says, "You can pay me now or you 4 can pay me later." 5 It seems to me that hard numbers, when 6 you're talking money, and that's what we're 7 talking when we're talking funding. How effective 8 would some kind of study like that do, including 9 legislators, some practical cover? 10 In other words, they can tell their 11 constituency look, this just makes good business 12 sense to do it right the first time because so 13 many times you have to do it over and over again, 14 and this is what it's costing us, putting aside 15 all of the fairness issues and everything else. 16 Would that be of any help, or is that a pie in the 17 sky thing? 18 MR. MEARS: Judge, we've already got a 19 model, pardon this choice of words, of what works 20 with regard to some semblance of the state-wide 21 system. It is not anywhere near where it should 22 be. 23 Ten years ago during this term of the 24 legislature, 10 years ago the state created a 25 multi-county public defender's office and its aim KING COURT REPORTING SERVICE 58 1 was to provide resources for local counsel. 2 It took a while to get funding, but that 3 office, this office is involved on a regular 4 basis, every year, in 30 to 60 death penalty 5 cases. And over the last 10 years we have worked 6 hard to train attorneys to set standards for 7 attorneys in death penalty cases. 8 Last year there were only three death 9 sentences handed down in the State of Georgia in 10 large part because this office helps attorneys 11 either try the case properly or resolve the case 12 without trial. 13 Our office was involved recently in three 14 cases in Pike County. Pike County didn't have the 15 money for one death penalty case. What our office 16 was able to do was go in there and resolve all 17 three cases without trial. And justice was done, 18 I would assume that. 19 The cost of that is $1 million a year to 20 handle -- to be involved in 40 to 60 death penalty 21 cases a year to get them tried. I'm not saying we 22 do them perfectly, but what we're doing is 23 reducing the number of cases that are going to 24 trial because we're adequately resolving cases, 25 and when they are tried -- and I say this as a KING COURT REPORTING SERVICE 59 1 litigator -- when we do go to trial, the chances 2 of those cases that we're involved in getting 3 reversed is slim because they're done right the 4 first time, or we don't do that. 5 That's a model that the legislature can look 6 at to see why it's important to have a state-wide 7 system that has some adequate controls and 8 adequate performance standards. 9 JUDGE BIRCH: Has your organization ever 10 tried to quantify this in real numbers that you 11 can show a legislator that this is a cost-saving 12 measure as well as a legal, a fairness, 13 Constitutional? 14 MR. MEARS: In death penalty cases, yes. 15 Those figures can be provided, and to use your 16 words, that cover for the legislature. 17 It's a situation where, I think, every 18 Superior Court Judge in the state that has been 19 faced with death penalty cases, both Judge Lawton 20 and Judge Fuller have had death penalty cases, and 21 they know when the cases are being tried right. 22 They know if the attorneys are doing what they're 23 supposed to be doing, and they could probably 24 tell, notwithstanding any errors that may be 25 alleged that they committed, they know whether or KING COURT REPORTING SERVICE 60 1 not there were any errors made in that case and 2 the case will not be tried again. 3 That's why there has to be some state-wide 4 standards by which attorneys can be judged. Not 5 leave it to the whims of whether or not you've got 6 somebody like Wyc. Somebody in their office can 7 go and investigate a case because they've got a 8 friend that knows a friend. 9 A state-wide system takes that type of 10 capriciousness out of indigent defense. 11 JUDGE BIRCH: If you have any numbers at 12 all, we would love to receive them. 13 MR. MEARS: And I would suggest that 14 Mr. Spangenberg probably has numbers. At least we 15 can get that started. 16 JUDGE BIRCH: Thank you. 17 CHAIRMAN MORGAN: Yes, Judge. 18 JUDGE STEPHENS: You said that there are 19 local or county programs that are not working. 20 What percentage of county programs are not meeting 21 the needs of indigent defense? What percentage 22 would you say have just fallen short, based on 23 y'all's research and investigation? 24 MR. MEARS: Judge Stevens, I'm not -- 25 JUDGE STEPHENS: Do we know that? KING COURT REPORTING SERVICE 61 1 MR. MEARS: I'm not sure that I know the 2 answer to that percentage. It's a very subjective 3 issue that I'm sure you know in some instances. 4 What we have to look at is after the fact. Before 5 that it was, in fact, adequate, and I think it 6 would be difficult for anyone, at least it would 7 be for me, to say 60 percent of the systems aren't 8 working because you have to look -- even bad 9 systems. It's just like the chicken on the 10 typewriter. Every once in a while if they peck 11 long enough, they're going to get a word out. 12 And so it's difficult to say percentages, 13 and I would urge the Commission not to look at 14 percentages of which ones are working or not. As 15 I said earlier, some systems work very well. Some 16 hardly work at all. 17 What I would urge, as a member of this 18 committee, urge that this Commission to look at is 19 what -- how can we make sure that all of them work 20 so you don't have to ask that question, you know, 21 five years from now? 22 We can assure that every system is working 23 to its maximum to ensure adequate and effective 24 representation. 25 CHAIRMAN MORGAN: Yes. KING COURT REPORTING SERVICE 62 1 JUDGE FULLER: Why did the Bar decide that a 2 public defender system was the best out of the 3 systems that we have in Georgia, or even 4 nationwide? 5 Is there any particular reason that you fell 6 upon a public defender system? And I'll use my 7 town as an example to get a response from y'all, 8 but many of the people who practice in my circuit, 9 and we are blessed to have a number of lawyers who 10 willingly practice in the criminal area. And they 11 point out to me if we go to a public defender 12 system the public defenders are going to have a 13 greater caseload than we have; thus 14 representation, in all likelihood, would be less 15 than what it is today. 16 And even though the contract system may work 17 in a variety of counties, the appointment system 18 may work in a variety of counties, why did y'all 19 focus on the public defender system as the one 20 that you would suggest to this committee that we 21 consider following? 22 MR. DURHAM: Let me just say this before 23 Mike or Wyc answer the question. 24 To be clear that the resolution does contain 25 as well the option for having systems other than a KING COURT REPORTING SERVICE 63 1 public defender system. I mean, it's not just 2 solely a public defender system. It specifically 3 states that if there is a system in place that 4 meets or exceeds standards that are set up for a 5 public defender's office that a Commission can 6 approve that particular setup in that particular 7 locality, and Mike -- 8 MR. MEARS: I know Wyc can address this 9 also, Judge Fuller. You look around the country. 10 You look at what states work well and what states 11 don't work well. You look at the model in any 12 type of scheme for delivery of services. You look 13 around to see what other states have done, what 14 models work, what models don't work. 15 And I think this committee has looked long 16 and hard for the types of systems that work well 17 to deliver the service, and it's the position of 18 our committee that the best model for delivery of 19 indigent defense services is a public defender 20 system. 21 And it can be -- and that comes in many 22 different forms. It's not just one ombudsman 23 public defender system, but the public defender 24 system addresses, in my opinion, and this is just 25 in my opinion as a member of the committee, it KING COURT REPORTING SERVICE 64 1 addresses the need for the enforcement of 2 performance standards. 3 And I can't come back to that too often to 4 show that you've got to have some way to ensure 5 that the attorneys who are delivering these 6 services are doing it adequately and effectively 7 without having the courts litigate that three or 8 four times, as Judge Birch has said, and the 9 public defender system seems to be the best 10 possible way of doing that without having to 11 involve the judiciary in enforcing those 12 standards. 13 I perceive a difference in controlling the 14 courtroom, and ensuring that the courtroom is 15 doing right, and that counsel behaves and conducts 16 proper - you know, meets with their clients and 17 that sort of thing. 18 Judges shouldn't have to go beyond that. I 19 really believe you've got other things to do 20 besides overseeing case administration on behalf 21 of those individuals. 22 A public defender system provides the 23 framework of which that oversight can be done, and 24 I think that was one of the reasons why the public 25 defender system was offered as part of this KING COURT REPORTING SERVICE 65 1 resolution. 2 And it was debated. It was something that 3 wasn't just rubber stamped and stuck out there. 4 We looked at all three of the traditional means 5 being used in the past: The appointed panel 6 standard, the public defender standard, and the 7 contract. 8 We had members on our committee that have 9 contracts, who were contract attorneys. We had 10 people who were appointed counsel. And we had 11 public defenders. And so we looked at that, and 12 when the final resolution came about, the public 13 defender system seemed to us to be the best method 14 by which the delivery of services could be done 15 and done properly. 16 MR. ORR: Let me comment real briefly, also. 17 I think that the recommendation recognizes the 18 fact that sometimes uniformity is necessary for 19 strength and consistency. If you look at Point 3 20 on this, it says, "In order to ensure a uniform 21 quality of representation throughout the State, 22 Georgia should adopt a public defender system." 23 And so uniformity is the desired end here, 24 but it goes on to say that, "The Commission should 25 be authorized to permit judicial circuits to KING COURT REPORTING SERVICE 66 1 implement alternative delivery systems if the 2 Commission determines that the alternative system 3 is designed to meet or exceed the quality of 4 indigent defense representation provided by public 5 defender system." 6 What we're seeing, I think, is that we know 7 that there are areas in the State where, and I 8 know a lot of people feel that way about Hall 9 County. Judge Fuller, you and I both know that 10 there are some awfully good appointed lawyers in 11 Gainesville who do a fine job in indigent defense, 12 and so I think there is a recognition that there 13 can be allowance made for that when it's 14 demonstrated that that will meet the requirements 15 of the Constitution and of the statutory law. 16 But in order to do the job state-wide, I 17 think this recognizes that you can't be appointing 18 lawyers state-wide out of Atlanta; you can't 19 really be contracting with lawyers in individual 20 areas around the State out of Atlanta; and so this 21 operates out of the notion that if you've got a 22 public defender system state-wide that can be 23 administered in part from a central source and 24 then allowance made for individual deviations from 25 that where necessary which shown on an individual KING COURT REPORTING SERVICE 67 1 basis that will meet the needs at the local level. 2 To me it does this: It says that whereas 3 now the rule is, the system is, local decision on 4 the system that will obtain. Now we say that the 5 rule has to be, for uniformity sake, that it has 6 to be a public defender system unless in a 7 case-by-case basis an alternative is shown that it 8 will adequately meet the requirements. 9 And so I think that that's the concept. 10 JUDGE ADAMS: And so it's a political 11 decision, political reason? 12 MR. ORR: I don't think it's a political 13 reason. We've got a political system right now, 14 and if there is one thing we can be sure of, that 15 despite individual exceptions. Like I said, there 16 are, in all likelihood, adequate systems around 17 the state that exist now, but that's not giving us 18 the uniformity that the Constitution and the State 19 statute provides for. 20 And so, consequently, what this 21 recommendation recognizes, I think, is this: The 22 current system has failed in terms of achieving 23 the desired uniformity of adequate representation 24 state-wide and in order to deal with that lack of 25 success, that failure state-wide, we've got to KING COURT REPORTING SERVICE 68 1 have more state involvement that assures 2 uniformity while preserving. 3 And I know Cobb County. I mean, we heard 4 strong feelings about Cobb County about how -- 5 when the Board of Governors was debating this when 6 we had break-out groups in January, we had strong 7 feelings about look, our system is working. Why 8 come in and parachute in from the state level and 9 interfere with that? 10 And this doesn't intend to do this. This 11 says we will start with a uniform system that 12 assures ultimately the kind of consistency and 13 adequacy of counsel that we need; that beyond that 14 there will be room for individual exceptions at 15 the local level once it's been proven that that 16 will meet the requirements. 17 But we've got a lot of individual systems 18 around the state that this recognizes haven't been 19 able to prove that and, therefore, it's got to be 20 changed. 21 JUDGE ADAMS: Has the Bar considered the 22 criteria for how you approve an alternative 23 delivery system? 24 MR. ORR: I think there is some historical 25 antecedents on that, if you will. I mean, we know KING COURT REPORTING SERVICE 69 1 what the guidelines are. We know, for example, 2 the guidelines require caseloads of so much, 3 experience levels of so much, and that sort of 4 thing, but the problem is there is not an adequate 5 enforcement mechanism now, and this is an effort 6 to achieve a mechanism that will assure that those 7 kind of guidelines are met. 8 JUDGE ADAMS: And so a system like Cobb 9 County, then, and Cobb County's system can be, I 10 acknowledge, can be finely tuned further. Any 11 system, no matter how good it is, you know, even 12 the public defender, multi-county Public 13 Defender's office, I'm sure, could make 14 improvements, and is constantly striving to do so, 15 but that's not the only method of measuring. 16 In other words, every system, including Cobb 17 County, Hall County, which appear to be working, 18 we still have to, in order to opt out, would have 19 to operate as a public defender system for a 20 period of time until a measurable evaluation. 21 MR. ORR: I don't think that's the case. I 22 think even at the outset, if it can be 23 demonstrated on a case-by-case basis, I think 24 there should be allowance for that. 25 MR. KURTZ: Actually, I had the reverse KING COURT REPORTING SERVICE 70 1 question and that is, okay, now we're in Clark 2 County, which happens to have a public defender, 3 and for some reason Clark County gets the idea, I 4 mean, this system is in place and ten years down 5 the road, Clark County decides that they should go 6 to a contract system. 7 I mean, how can they a priori justify this 8 system? I mean, I can understand how Clark 9 County, and Cobb County, and any county that has a 10 history of doing it well at the outset of this 11 process, can grandfather in, essentially, by 12 showing look, we do a good job here. Well, how 13 are you going to be able to prove that without 14 having done it that way? 15 MR. ORR: I mean, my answer to that would be 16 that at any time in the future when someone can 17 show at the local level that they wanted to 18 develop a new system, still the onus would be the 19 same. You've got to be able to show that these 20 meet the requirements of an adequate system of 21 indigent defense. 22 MR. DURHAM: And I'm sure you do it by the 23 plan that you're presented as to how the contract 24 was going to be established, with whom, what was 25 the caseload going to be, who was involved. KING COURT REPORTING SERVICE 71 1 MR. KURTZ: And then review of it after a 2 year, temporary approval for a year, or two, or 3 three, and then look at it and see how it has been 4 going. 5 JUDGE BIRCH: Well, let me ask you this: 6 Implicit in here, you seem to want to break it 7 down. You've got a uniform system that's 8 state-wide on judicial circuits as opposed to 9 counties. In fact, there might even be some 10 tension there because you talk about on the local 11 level. 12 In other words, I guess in Georgia, from my 13 memory, you can have various counties that are a 14 part of a judicial circuit, and if you're going to 15 have an administration on the judicial circuit 16 level help us understand how that would -- how you 17 envision that would work and why you picked the 18 judicial circuit as opposed to county, or would 19 you let a county -- it would seem somewhat 20 cumbersome, perhaps, to have a county indigent 21 defense system in one county and yet the judicial 22 circuit in the other county. Help us with any 23 thoughts you had on that. 24 MR. MEARS: Some circuits you have disparity 25 of representation within the circuit, and county KING COURT REPORTING SERVICE 72 1 to county within the circuit. By organizing on a 2 judicial circuit, starting at that level, you at 3 least can ensure uniformity within that circuit. 4 Some circuits involve many counties. Some 5 circuits only involve one county, but you start 6 with the presumption that having a uniform system 7 at the judicial circuit level at least at that 8 starting point you are ensuring uniformity of 9 delivery of services at the circuit level. 10 MR. GAMBRELL: Well, one thing about the 11 circuit is you have the Superior Court Judge or 12 Judges that preside over that entire circuit, plus 13 the District Attorney operates within it, so the 14 law enforcement system at the judicial level is 15 already unified and so it does make sense to 16 operate. 17 JUDGE BIRCH: To mirror that. 18 MR. GAMBRELL: We also say this question 19 that you're talking about, to me, is very 20 important not only in terms of ultimate justice 21 but, actually, getting this done. 22 Our resolution sets out a bunch of 23 principles, but we're going to try to take it 24 county by county and circuit by circuit, but we 25 you're going to be asking -- I say you, we, or who KING COURT REPORTING SERVICE 73 1 all is involved -- are going to be asking these 2 very questions and it will be this kind of concern 3 that prevents the whole thing from happening at 4 the legislative level if we don't have good 5 answers to these questions because the application 6 of the unknown is going to upset people. 7 I made the suggestion, and I haven't thought 8 this through, that it might be -- in fact, I know 9 this is not going to happen. You're not going to 10 enact a program that is going to take place on 11 January 1 of some year. That just can't be done. 12 You wipe out everything that's there and something 13 else here and it works well. 14 I think you've got to assume that you've got 15 a blackboard with a lot of writing on it and 16 you're going to have to keep a lot of it as you go 17 forward in getting this done, but I don't know 18 about Hall County, but I know several of the 19 Judges there. My guess is they ought to be passed 20 on the first round along with several other 21 counties, Clark County. 22 We're not going to tell them they've got to 23 change this to a district -- I mean, a public 24 defender system. It might be that you can set it 25 up or recommend it be set up where three or five KING COURT REPORTING SERVICE 74 1 years people that meet certain standards can go 2 forward with what they've got and then be 3 re-examined after all of the Tom, Dick and Harrys 4 around have been straightened up. 5 But implementation of this thing is very 6 important as a concern that people are going to 7 have, and it needs to be addressed. We just have 8 not tried to do it at this level. 9 MR. STEWART: I think, you know, we've got a 10 perfect example. The Administrative Office of the 11 Courts, the State Administrative Office of the 12 Courts, keeps statistics about caseloads per Judge 13 and when it's time for a circuit to have another 14 Judge you have to line up, you know, and you've 15 got to make your case to the general assembly, but 16 there are certain minimal standards that shocks 17 the conscience. If you've got a Judge that has 18 way more cases, then that Judge ought to be 19 paneled. 20 Well, that's the same thing that we're 21 talking about for the indigent defense system. 22 That's one of the elements that you worry about 23 and, you know, you imagine somebody in a 24 six-circuit county, and we've got a couple of 25 those in Georgia. There are two contract KING COURT REPORTING SERVICE 75 1 defenders and they divide 1,000 cases between 2 them. 3 Well, nobody can handle 500 cases a year. 4 Nobody can do that, ever. And so you've got to -- 5 that's part of the equation, and that's part of 6 the expenditure that you're going to have to make, 7 and that's part of the control, but we've got 8 models for it. 9 And Mr. Spangenberg can -- he's an expert in 10 this. He's seen it all over the United States, 11 and from what I've observed that he has done in 12 other states, from the American Bar perspective 13 that I've seen, they do a pretty good job of 14 finding where the problems are and seeing how they 15 can be resolved. 16 And they've done some wonderful things in 17 Kentucky and North Carolina, for instance. And 18 had a wonderful program in Mississippi until the 19 legislature waked up to what it had done and said 20 no, we can't have that type of thing. 21 In any event, those things can be -- I think 22 that those things can be worked out. And I really 23 see the real problem, and I'm glad we got the 24 Association of County Commissioners represented 25 because you've got to do something about that fine KING COURT REPORTING SERVICE 76 1 and forfeiture money that goes to the counties 2 because the counties are going to say, and I don't 3 blame them for saying well, yeah, let's let the 4 State take this over because that will be more 5 money for us. 6 And the State is going to turn around and 7 say, and I don't mean to throw roadblocks in the 8 road, but the State is going to turn around and 9 say well what are you doing with all of that fine 10 and forfeiture money? 11 There has got to be some equitable 12 resolution of issues like that for the general 13 assembly to be convinced that, I think, to be 14 convinced that these things got to go forward. 15 And that's part of your work, I think. It's 16 pretty easy for us to say it ought to be state 17 funded, which it ought to be. The Constitution 18 says that. It doesn't say, like Wyc says, it's 19 not the county of Hall or Oconee County versus 20 so-and-so, it's the State of Georgia versus 21 so-and-so. 22 MR. ORR: Well, you know, and it's probably 23 that some could fend for themselves now and are 24 doing so and have for a long time, but the thought 25 comes to mind that maybe it's a very cruel analogy KING COURT REPORTING SERVICE 77 1 in the criminal context, but was it Ben Franklin 2 during the time before the American Revolution 3 that said we must surely hang together or we shall 4 hang separately? 5 Well, I think that the desired end of 6 uniformity and strength requires that we all pitch 7 in and hang together even though some can fend for 8 themselves. 9 JUDGE ADAMS: Well, I don't want anyone to 10 think that I'm a Cobb County spy on the 11 Commission; that I am committed to the 12 Commission's state-wide objectives, you know, but 13 I do want to, you know, I don't want to be down 14 here at Commission meetings on a day that the Bar 15 is meeting and the Superior Court Judge is up 16 there saying they're down there in Atlanta. 17 I mean, we need to be practical about these 18 things. There are some mighty fine systems in 19 place that really don't -- as you say, might be 20 pre-qualified to continue operating. 21 I believe you're trying to achieve 22 uniformity in quality of representation, not 23 uniformity in methodology of every event that 24 occurs in the criminal prosecution. 25 MR. ORR: That's correct. KING COURT REPORTING SERVICE 78 1 JUDGE ADAMS: And I think we do need to, you 2 know, I think variation rather than uniformity 3 would help us get the system approved, to get a 4 state-wide system approved. 5 MR. MEARS: Judge Adams, Solomon was asked 6 the same question when he was asked, "Do you want 7 to divide this baby up?" He said, "Yeah, go ahead 8 and do it." But the answer to the question was 9 not to divide the baby up, but to put the baby in 10 the hands of the person who could raise that baby. 11 And, again, I don't want to be too 12 melodramatic, but we can't divide the baby. This 13 is a Solomonic decision that this Commission and 14 the legislature are going to have to make someday. 15 Are we going to split them all up or are we going 16 to find a way to keep them all whole? 17 And the uniformity that we talked about is 18 the way to do that, however that form is, whether 19 it's circuits or whatever, but it is of paramount 20 importance that somebody step forward and give 21 leadership to this issue, and that's what this 22 Commission -- I pray that this Commission will be 23 able to step forward and give that type of 24 leadership to this issue. 25 CHAIRMAN MORGAN: I think Mr. Griffin and KING COURT REPORTING SERVICE 79 1 then Floray. 2 MR. GRIFFIN: Let me comment on 3 Mr. Stewart's comment. I think what you 4 identified, the fine and forfeiture issue, is 5 certainly one of the big crutches that we run into 6 in the legislature. And I say it's a crutch. 7 I think through the efforts of the Atlanta 8 newspaper in particular this issue has been raised 9 to a high conscious level of everybody. And also 10 I commend the State Bar because I think the 11 outstanding work that you have done and certainly 12 coming forward today, I think lawyers are standing 13 tall, which is not always the case with you. 14 Mr. Stewart, I'll ask you a specific issue. 15 We did this year, we met with the Speaker when he 16 introduced his bill, and we had understood that 17 the Administrative Office of the Courts was going 18 to take the review of the fine and forfeiture 19 issue. We support such an issue. It needs to be 20 looked at. 21 On the one hand, nearly 27 percent of the 22 fines and forfeitures that are collected in the 23 courts are transmitted to the State, whether it's 24 the teachers retirement system. Ten percent is 25 supposed to go to law enforcement. Training. KING COURT REPORTING SERVICE 80 1 The amount of money going back to the local 2 government is almost nothing now. Even though we 3 supported it, it was set up. The public safety 4 training center, which we supported and it was 5 operated with State funds, no local people go 6 there. Most of it is corrections and the most is 7 state offices. We just can't get into the 8 facility. 9 Now, we have some regional academies that 10 did training. I say that to say that there is a 11 misconception. The other big issue is 12 forfeitures. Under the State and Federal 13 forfeiture laws, that money does not go to the 14 county, it goes to the sheriffs and the 15 prosecutors to spend as they like. 16 In many counties it's not even the county's 17 vault. It's the sherrif's money and he does with 18 it as he will. And so we would support very much 19 a study so that we could find out once and for all 20 what is actually going into the county treasury. 21 The other thing we overlook is the police -- 22 the city -- the municipal police and their fines, 23 which are outside of the system, too. And I know 24 I live in a little town of 2,500 and they have 14 25 police cars and two police dogs because they can KING COURT REPORTING SERVICE 81 1 afford it. 2 MR. STEWART: You feel comfortable with 3 that. 4 MR. GRIFFIN: Oh, yes. But again, I think 5 your point is well taken, and I do think that it's 6 an issue that's got to be addressed before we're 7 going to get very far with something in the 8 General Assembly because it is a crisis. 9 CHAIRMAN MORGAN: Ms. Flora. 10 MS. DEVINE: Thank you. I have another 11 process question. And we talked about the 12 legislature and how we might begin to address some 13 of those concerns, and someone mentioned the 14 balance with the judicial, legislative, and 15 executive branches, and so I wonder what advice 16 counsel might have about how we might involve in 17 this process the judicial branch as well as the 18 executive branch toward our goals. 19 MR. ORR: Well, one thing strikes me is that 20 I can't imagine a more appropriate time to address 21 this issue with given the people we have in office 22 right now. I mean, we have -- not only do we have 23 -- obviously, this is a Commission formed by the 24 Supreme Court. We have active judicial 25 involvement. We have Superior Court Judges on the KING COURT REPORTING SERVICE 82 1 Commission, et cetera, and so we certainly have 2 active participation by the judiciary. 3 We have a Governor in this state who is a 4 long-time trial lawyer and who has handled many 5 criminal cases who understands the situation. 6 We have a Speaker of the House who is a 7 long-time practicing lawyer, and so I think it's a 8 very apt time for us to be addressing this with 9 people who understand the problem and understand 10 the system. 11 CHAIRMAN MORGAN: I'd like to ask a question 12 of our guests this morning. In terms of the 13 independent oversight Commission, do you have any 14 input for us in terms of the composition or 15 otherwise the nature of this Commission? 16 MR. MEARS: Mr. Morgan, there are several 17 models in other states. Doug has mentioned North 18 Carolina, Kentucky, that provide models by which 19 an oversight Commission or an ombudsman type of 20 Commission could be put together to oversee the 21 performance of individual attorneys in public 22 defenders' offices and appointed counsel 23 situations. 24 I think that the part of the process that 25 Ms. Devine talks about is to come up with a model KING COURT REPORTING SERVICE 83 1 that's suitable for Georgia. And it may not be 2 the North Carolina model, or the Kentucky model. 3 It could very well be a combination of those two. 4 And I know that this Commission has been 5 looking at different models and have a lot of 6 information, probably more than you want, of what 7 models work. 8 I think that a model can be put together 9 that combines the best. We're one of the last 10 states to really tackle this problem. That's bad, 11 but it also gives us an opportunity to look and 12 see what all the other states have done right and 13 done wrong. 14 And I'm sure that this Commission is looking 15 at that and can find the models that can be 16 overlaid onto Georgia's specific needs: The needs 17 of the courts, the needs of the individuals, the 18 needs of the counties. 19 I know I'm somewhat hedging on a direct 20 answer. I don't think our committee is coming to 21 you to say this is the model. We simply are 22 saying that you need a public defender system that 23 well ensure uniformity of representation and 24 adequate funding of that system. 25 MR. HOLMES: Mike, was there any discussion KING COURT REPORTING SERVICE 84 1 of whether or not that public defender ought to be 2 elected? Did you give that thought to it. 3 MR. MEARS: Well, there was much -- well, 4 there was discussion about that I think, and I'll 5 speak for myself and not for the committee, that 6 the less politics that we can put into this. 7 There is already, by the nature of the 8 issue, there is already too much politics at work 9 here. Some of it good and some of it bad, but I 10 think the last thing that we would want -- 11 Tennessee and even Florida in one of its models 12 has some elected officials. 13 Personally, I don't think that that 14 addresses the need. I don't think that we need to 15 get competing politicians looking at this. I 16 think that this Commission and the legislature, 17 along with the Supreme Court and the Judges, can 18 come up with a matter in which this Commission can 19 be composed that's fair and adequate and it can do 20 it's job. 21 I think the Commission needs to be 22 responsive to the people of Georgia, whether it's 23 through the executive branch, the judicial branch, 24 or the legislative branch, but electing public 25 defenders, my personal experience from observing KING COURT REPORTING SERVICE 85 1 that, it's like a dog. You can see it walking on 2 its hind legs, but it's never done real well. 3 CHAIRMAN MORGAN: Any other questions or 4 comments from the members of the Commission or our 5 guests? Because I know we do have to move along, 6 because I think we're slated to hear from the 7 Spangenberg Group, also. We can take one or two 8 more. Anybody else? 9 REPRESENTATIVE HOLMES: I would just like to 10 say I appreciate the members of the Georgia Bar. 11 Whatever we do we have to have a buy-in from your 12 group, and so thank you very much. 13 (Applause.) 14 CHAIRMAN MORGAN: And you all are more than 15 welcomed. If you care to stay, please do so. 16 (Whereupon, a recess was taken from 11:20 to 17 11:40.) 18 CHAIRMAN MORGAN: All right. We're back in 19 session. I had to try that gravel. 20 MR. SPANGENBERG: How is five minutes? 21 CHAIRMAN MORGAN: I think we're close. 22 Mr. Spangenberg, how is yours? 23 MR. SPANGENBERG: I'm going to actually try 24 to do five minutes because I know you want to go 25 on into executive session and give a few KING COURT REPORTING SERVICE 86 1 highlights of very early findings from your site 2 work. 3 We spent four months, the Spangenberg Group, 4 in the field around Georgia and 19 counties 5 talking to Judges, Magistrates, Commissioners, 6 private lawyers, court-appointed lawyers, jailers, 7 just about everybody that we could that's involved 8 with the indigent defense system in those counties 9 that we went to. 10 I must say, first of all, that we were 11 treated with a great deal of respect everywhere we 12 went. And that goes for all categories, including 13 prosecutors, and Judges, and court-appointed 14 counsel and Commissioners, and so we're very 15 indebted to the people that we did talk to and we 16 felt that they were very straightforward with us, 17 very honest with us, they spoke their mind, 18 whatever it might be, and so I think we've learned 19 a great deal that can add to the work of this 20 Commission. 21 I would like to, as I said, just say three 22 or four things. First of all, I want to second 23 the discussion about the problems that the 24 counties have with being able to maintain or to 25 improve their indigent defense system. KING COURT REPORTING SERVICE 87 1 For all the reasons stated before, and this 2 is true of many counties throughout the country, 3 not the State of Georgia, all of them, they have a 4 very small ability to raise taxes, raise new 5 revenue, and they're constantly getting unfunded 6 mandates, particularly the criminal justice 7 system, from the state legislature that places 8 more and more responsibility on the county courts, 9 but, unfortunately, doesn't provide the funds, and 10 that brings in surcharges and other forms on the 11 civil litigants and criminal litigants who I think 12 are just completely tapped out when it comes to 13 helping to support the local county courts. 14 And so I think the time has clearly come as 15 it has in many states. Twenty-six states in the 16 country right now have 100 percent state funding 17 of all indigent defense, and there is no county 18 funds. And there are several others that are up 19 in about the 90 percent, 90 percent state funds. 20 I don't think that there is -- there is no 21 question in my mind and my colleague, Marea Beeman 22 and I have worked together for 12 years, and we've 23 traveled all over the place. This happens to be 24 the 31st state, if you can believe it, that we 25 have done this kind of a study in the last 15 KING COURT REPORTING SERVICE 88 1 years. The 31st state. 2 And so we've been lots of places and I once 3 thought that you would have seen everything, but I 4 learn every place we go there is something new to 5 discover, but you have actually a paper, a pretty 6 good set of guidelines for indigent defense that 7 the Georgia Supreme Court has adopted. 8 The problem is that they're not being 9 implemented in many of the counties that we went 10 to. Neither by the oversight groups, the 11 Tripartite Committee, GIDC, in many respects 12 because they would need many, many, more staff to 13 be able to do that. 14 The Judges, the Georgia Supreme Court, and 15 the county governing body are simply not able or 16 unwilling to monitor and oversee the requirements 17 that the Supreme Court has placed before them. 18 This has resulted in a number of counties that 19 have serious problems with misdemeanors and less 20 serious cases in terms of getting counsel to them 21 at all, or getting counsel to them in a timely 22 fashion. 23 The problems that you may be aware of in the 24 State Court in Fulton County that we learned about 25 recently are not just State Court of Fulton County KING COURT REPORTING SERVICE 89 1 problems. One Superior Judge told me it's too bad 2 that Stinson is not applied statewide on the 3 felony side. In our county we need a Stinson in 4 order to be sure that counsel is appointed within 5 a reasonable period of time. 6 And we heard over and over again, the 7 problems are systemic. In some places law 8 enforcement or the police are unable or do not 9 file their police reports on time. Some district 10 attorneys and some city solicitors are not 11 sufficiently quick in getting their accusations 12 filed. 13 In custody Defendants in many misdemeanor 14 courts don't get on the docket because there is no 15 accusation because they have not been filed. Not 16 been filed either because the police haven't filed 17 their reports or because the solicitors have not 18 been able to file the accusation, thus many courts 19 that we visited are late in appointments, and this 20 goes to both, misdemeanors and felony cases. 21 This, what I call unnecessary delay, which 22 is clearly, in my judgment, clearly a violation of 23 the Supreme Court 72-hour rule, results in a 24 number of factors, some directly involving the 25 Defendants, and also the unnecessary cost to the KING COURT REPORTING SERVICE 90 1 county for housing less serious misdemeanors, in 2 my judgment, who are not a threat to the 3 community, but who cannot make bail, and do not 4 get a lawyer, and are filling up the jail cells 5 and pretrial detention, and in many cases then 6 being shortly thereafter released and plead to 7 time served. 8 There are many Defendants, indigent 9 Defendants in this state in some of the counties 10 that we visited that are either coerced by 11 Magistrates or others to plead early and to get 12 out of jail. 13 Now, these -- I'm not talking uniformity. 14 You have some wonderful programs, but these 15 problems are sufficient, from our standpoint, are 16 sufficient in number to cause great concern. 17 Now, at the end of this project, and as I 18 told you before, I've spent a great deal of time 19 in Texas two years ago, I began to think about 20 what was going on, particularly in some of the 21 smaller counties, and I came to the conclusion 22 that in terms of getting counsel early, in terms 23 of getting pleas from Defendants, particularly in 24 courts that are not courts of record, there is a 25 lot of local feeling. I think it's partly KING COURT REPORTING SERVICE 91 1 culture, it's partly history, that we know almost 2 everyone in the town, we know almost everyone in 3 the town and they don't want a lawyer, and we know 4 who they are. We know their father and 5 grandfather and so forth and so on. 6 And so we know what's best for them and 7 what's not best for them is to put them through 8 this rigmarole and constitutional requirements and 9 so forth. He's got 200 bucks. Let's get him out. 10 And so we'll get him out in the first 11 appearance or shortly after the first appearance, 12 and there will be no record. In some cases there 13 will never be any record of the waiver of counsel 14 or the waiver of fee and plea, and those people 15 get out for time served. There is simply too many 16 of those folks in too many counties. It is not 17 just a Fulton County problem. 18 Now, I really think that part of that 19 problem is not that the judiciary are mean, or the 20 prosecutors are mean, or anybody is mean. I think 21 it is a way of life, a culture, a history of 22 dealing with these kinds of problems, and I think 23 they are very well-meaning, excellent people that 24 are managing the systems, whether they're in the 25 jails, whether they're in the Magistrate courts, KING COURT REPORTING SERVICE 92 1 lawyers or whatever. 2 Not nasty people. Well-meaning people who 3 have this custom handed down, or it seems to be 4 handed down, and this is the way -- this is the 5 way we do it in our county. 6 And I think there are a number of these 7 folks who simply do not understand what the law 8 is. Simply do not understand what the law is, and 9 maybe they don't get training. Maybe there is not 10 appropriate training when they come into office, 11 whether it's a Magistrate, or a JP, or a 12 court-appointed lawyer, or who it is. And so I 13 think that this is really something of concern. 14 It's not just a Fulton County problem. 15 Now, I sat here this morning and listened to 16 the discussion and thought back of all of the 17 rooms that I had been in similar to this in the 18 last 20 years in many different states that were 19 having these discussions that you had today, and I 20 couldn't think of any questions that didn't come 21 up that weren't significant questions, that were 22 important questions, and questions that couldn't 23 come up, and issues that needed to be resolved. 24 None of them. 25 I've heard many of them repeated before, but KING COURT REPORTING SERVICE 93 1 what I can tell you is that there have been many 2 other groups around the country similar to this 3 that have actually taken action, who made 4 compromises, have worked together, have dealt with 5 the problems of the counties' income and revenue, 6 and have made arrangements to be sure that if the 7 state takes over a portion of the county courts 8 some of that revenue stays there, the state 9 doesn't take over all of the revenue. 10 And so even within the last few years, as 11 you know, North Carolina, and Texas, and Virginia, 12 and Nebraska, other states have had groups like 13 this that have been working for long periods of 14 time and have simply worked it out. 15 The question of how much will it cost? One 16 of the problems here is that nobody in Georgia 17 knows how many cases there are. Cases of 18 appointed counsel. They know how many criminal 19 cases are filed each year by felonies, 20 misdemeanors, jury denial and so forth, but no one 21 keeps -- no one has a relationship between the 22 number of cases filed by the prosecution and the 23 number of cases in which the Court appoints 24 individuals. 25 Now, you need a system like that and many KING COURT REPORTING SERVICE 94 1 states now do have a system so you can begin to 2 look at these kinds of things and it's hard to 3 start if you don't know how many cases there are. 4 And throughout the state people count cases 5 differently, as they do in many other states. The 6 prosecutors may be counting differently than the 7 contract attorney in terms of what is a criminal 8 case, and maybe the courts a third different way 9 of counting. 10 And so you really need a common way of 11 counting because it's very difficult to take 12 formula -- if somebody is reporting it by charges, 13 and somebody else is reporting it by Defendants, 14 but it is all doable. It is all doable. 15 And from what I heard today, and after 16 reading Mike Mear's book, which was a real 17 experience, which I read on the plane coming down 18 last night, I was really amazed at the enormous 19 amount of energy that many of you, and many others 20 who are not here, have spent on this problem over 21 the years. 22 And I, too, believe that you have come to a 23 very critical point in time which is going to 24 require a lot of give and take, and a lot of 25 serious thought, but you are sliding further and KING COURT REPORTING SERVICE 95 1 further behind in terms of the rest of the 2 country, in terms of the south, and I don't think 3 that you want to continue that process. 4 That is what actually happened in Texas. 5 Texas finally said we don't want to be at the 6 bottom of the barrel. We don't want to be 7 embarrassed. We don't want the New York Times 8 writing these stories and so forth and so on, we 9 want to do something about it. 10 And when they reached that point 20 years 11 later they did something about it and last year 12 passed a new provision in Texas, which I can tell 13 you personally is now being implemented throughout 14 the state notwithstanding all of the battles that 15 they had before. 16 I want to end by just reading you two 17 paragraphs of a case that came down in New York 18 last week. It was a case in which a Bar 19 association, a criminal court Bar association in 20 New York City had sued the state on the basis that 21 the compensation provided for court-appointed 22 counsel in New York City, which was $25 an hour 23 for out of court, $40 an hour for in court, 24 subject to a maximum of $900 for a misdemeanor and 25 $900 for a felony juvenile case, and $1,200 for a KING COURT REPORTING SERVICE 96 1 felony case, was inadequate under the 2 Constitution. 3 The case was filed by a large law firm in 4 New York City, the chairman is familiar with, and 5 on behalf of the New York County Lawyers 6 Association, and last week the Judge came down 7 with the following opinion. 8 Let me just read two paragraphs. He said, 9 "Equity and the administration of justice are at 10 the core of this litigation. Herein lay two 11 competing jurisprudential doctrines: The promise 12 of Gideon pitted against the organic law that each 13 branch of government should be free from 14 interference by either of the other. 15 The issue in this motion for a preliminary 16 injunction and declaratory judgment is whether New 17 York State's failure to increase the current 18 compensation rates for assigned counsel has 19 rendered hollow the Constitutional and statutory 20 right to counsel and obstructs the judiciary's 21 ability to function. 22 This Court finds serious and imminent danger 23 of ineffective assistance of counsel to indigent 24 litigants in New York City family and criminal 25 courts resulting from the inadequate compensation KING COURT REPORTING SERVICE 97 1 rates paid to assigned counsel, but holds in 2 abeyance a declaration, if at all, that the 3 assigned counsel statutory scheme is 4 unconstitutional as applied, and issues a 5 mandatory preliminary injunction directing payment 6 of an interim rate of $90 an hour for in court, 7 and $90 an hour for out-of-court work with no 8 caps." 9 And the opinion goes on to discuss much of 10 the debate that occurred in Georgia around Lucky 11 versus Georgia as one thing, Federal Court case, 12 and I think that it's a very well-reasoned opinion 13 and I offer it to you, and we are now sitting down 14 with piles and piles and piles of information that 15 we are putting together in the form of a report. 16 And I particularly want to thank Marea, who 17 has taken a terrific responsibility in heading up 18 the project, and to also say that we do owe a 19 number of you an apology for some screw-ups that 20 occurred initially in setting up the schedule. 21 That was our fault. 22 And we particularly want to apologize to 23 some Judges who we inconvenienced, if they're in 24 this room, but we are coming back to see all of 25 you, and we've contacted all of you, and not just KING COURT REPORTING SERVICE 98 1 Judges, but others in the counties that we had 2 screw-ups or whatever. It's my fault. It's my 3 responsibility. And so I wanted to apologize to 4 this whole group and tell you that I'm hopeful 5 that with the honest, frank, straightforward 6 information that you all provided to us that our 7 report will reflect what, in fact, is going on in 8 the system by those who are responsible for it and 9 working within it beyond all of the information 10 that everybody else has compiled, all of which is 11 valuable. Thank you, Mr. Chairman. 12 CHAIRMAN MORGAN: Thank you very much, 13 Mr. Spangenberg. Are there any questions or 14 comments concerning Mr. Spangenberg's report from 15 any member? Yes, Judge. 16 JUDGE STEPHENS: May I assume that when your 17 final report comes in you'lll have the names of 18 people that you talked to, and where you went, and 19 the specific counties that you say are not 20 providing the adequate resources? 21 MR. SPANGENBERG: Well, when we started the 22 study there was a real question about 23 confidentiality, and particularly among the 24 Judges. Not just the Judges, but many of the 25 people who we were going to interview. KING COURT REPORTING SERVICE 99 1 And I don't believe we could have done a 2 reasonable job in this work if we had told 3 everybody that we were not providing 4 confidentiality. I don't think that we would have 5 gotten the information that we received. And this 6 is something we faced, and it's just a fact of 7 life. 8 And so the answer is that we are not going 9 to identify individuals be they Judges, or County 10 Commissioners, or Magistrates, or lawyers, or 11 whatever. We just have to do it this way. 12 We will be talking about incidents that 13 occurred in certain areas, of problems that we saw 14 in certain areas, but we can't -- we have a 15 promise to maintain the anonymous discussions. 16 JUDGE STEPHENS: I appreciate that, but, you 17 know, part of the reason that we wanted to have 18 y'all do the study is because we were getting what 19 we considered to be anecdotal information from 20 different places around the state. 21 We were trying to find out, well, you know, 22 let's examine the extent of the problem, and some 23 of us would like to focus on the counties that are 24 not measuring up and try to say all right, let's 25 do something about that. Let's do something about KING COURT REPORTING SERVICE 100 1 the Judge that's screwing up. Let's do something 2 about the public defender that's messing up, or 3 the contract defender that's messing up, and so we 4 needed to know where, or what counties, or what 5 programs are not working so we can try to improve 6 them. 7 MR. SPANGENBERG: Well, that is a problem, 8 but I can tell you that the findings that were 9 made, or the information that was provided to us 10 was provided locally. Whether it was provided in 11 areas that were problematic, whether it was by the 12 Judges, or whether it was by the County 13 Commissioners, Magistrates, or the Tripartite 14 Committee, they told us. I mean, we didn't figure 15 it out ourselves, we were told. 16 JUDGE STEPHENS: All right. 17 MR. SPANGENBERG: We did talk to more people 18 and we did some observations, but the information 19 that is the basis of our findings was told to us, 20 and by more than one person in the counties that 21 we went to. 22 And so I think that they pretty much know 23 who they are, and I think some people around the 24 table probably pretty much know in some areas, but 25 there are also -- I want to say one more thing for KING COURT REPORTING SERVICE 101 1 sure, and that is that we saw, during our travels 2 we saw extent contract programs, we saw excellent 3 panel programs, and we saw excellent public 4 defender programs. 5 And there is no magic. There is no one size 6 fits all. It has to do with so many other factors 7 I think we don't probably all agree on, and I 8 think that we will be presenting in our report a 9 number of these ideas that came up and things that 10 people are doing, which are really very innovative 11 and could be, I think could be considered by other 12 counties or Judges elsewhere because there is a 13 lot of good things happening, too. 14 CHAIRMAN MORGAN: I think Phyllis has a 15 question. 16 MS. HOLMEN: Sort of a related question to 17 Judge Stephens, which is that I have heard a 18 comment or two about well it's just 19 counties 19 and how were those picked? And what do we learn 20 from that that's applicable to the other 130, 21 whatever the math is. 22 MR. KURTZ: 140. 23 MS. HOLMEN: 140. 24 MS. DEVINE: 140. 25 MR. GRIFFIN: We love them all. KING COURT REPORTING SERVICE 102 1 MS. HOLMEN: Whatever you can say about how 2 to extrapolate the findings that you have made. 3 And I assume from that that it would be about 4 systemic problems as opposed to individual 5 problems. You know, this sheriff didn't do this 6 or that clerk failed to do this. The systemic 7 issues around a system that fails to quickly file 8 the accusations and that sort of thing. 9 And I know you've done this 30 times before, 10 and now this is 31, but I think we've all been 11 hearing that and so whatever -- 12 MR. SPANGENBERG: And that's a good 13 question. But let me also tell you, as we 14 traveled around in some counties we frequently 15 talked about other counties in the circuit because 16 a lot of Judges, as you know, travel circuit, and 17 so we would take the time to say to the Judge 18 well, unfortunately, we're not going to Y or C, 19 but can we spend a little more time and talk about 20 your other circuits? 21 I mean, I'm personally interested in the 22 stuff beyond just doing the work, how Judges deal 23 circuit-wide. We don't have any circuit-wide 24 Judges in our state, but we go to many states that 25 do. And so we heard a great deal of information KING COURT REPORTING SERVICE 103 1 from other counties. 2 Also, the idea was to select counties that 3 reflected a different geography, different 4 populations, different crime rates and so forth as 5 probably being representative of but not identical 6 to the other counties in the state. 7 And we hope that the counties that we didn't 8 go to are the counties that many of you have been 9 to or worked in so you can add, you know, 10 colleagues that you know from those other 11 counties, but I think that what we will be able to 12 provide for you is a pretty fair overview, and it 13 is an overview, of how the programs are operating 14 as given to us by the people that we talked to. 15 And this is what we've done in the states. We've 16 done 29 -- how many in Texas, 29? 17 MS. BEEMAN: 29. 18 MR. SPANGENBERG: We did 29 counties in 19 Texas. There is 254 counties, but they had 150 20 counties under 50,000 population which is, when 21 you think about it, it's really unbelievable. 22 And there is a history of work. We heard it 23 this morning and there have been surveys, the GIDC 24 has been doing that over the years. There is a 25 wealth of information beyond what -- I think our KING COURT REPORTING SERVICE 104 1 role was just to try to get out there and talk to 2 people and bring back to you impressions of how 3 they feel things are going. 4 MS. DEVINE: Do you have a feel for sort of 5 the overall readiness for change feeling within 6 the state? 7 MR. SPANGENBERG: Well, there is no question 8 about the fact that there is a sharp difference of 9 opinion in terms of what we're willing to have 10 Atlanta tell us to do and what we reserve for our 11 local area where we are more familiar than anybody 12 else is. 13 But the interesting thing was in traveling 14 around, and we found this in Texas, too, which was 15 a great surprise, that there were many Judges, 16 including the Supreme Court Judges, that we spoke 17 to when we went out there, who thought that this 18 was a decent idea, the idea of having some 19 oversight but with local options and some 20 regularity, some guidelines that they could turn 21 to. 22 And so we did not find in all of our travels 23 that the Superior Court with one uniform, one 24 voice. We found different points of view. And 25 that was true from Commissioners and from others. KING COURT REPORTING SERVICE 105 1 And so I would say that I don't know if I 2 talked to anybody who said that it wasn't more 3 money needed in their system. I don't think a 4 single -- I don't care who it was. I don't recall 5 a single person that said that. 6 And so that was a discussion to get over 7 pretty quickly, where it would come from and how 8 much it would be, of course, was another big 9 question. 10 But, remember, the issues that you are now 11 challenging each other on, and the major issues 12 that you are going to debate and make 13 recommendations on have also been done in a number 14 of other states and have been resolved. Not to 15 everyone's satisfaction, but the systems have 16 taken on a new focus and people are working 17 together in the criminal justice system. 18 And some of the things that we worry so much 19 about, and rightly so, disappear if we all are 20 willing to get in there and look at the whole 21 question of the right to counsel and opening up 22 the criminal justice system and having a fair 23 trial and all. 24 CHAIRMAN MORGAN: Bill had his hand up. 25 Excuse me. KING COURT REPORTING SERVICE 106 1 MR. IDE: Well, Bob, I thought I heard you 2 say two things. One, that the Constitutional 3 imperative isn't being met in this state on the 4 right to counsel. I thought that was your 5 preliminary -- 6 MR. SPANGENBERG: Well, as a very good 7 friend of mine, Dean Leftstein. 8 MR. IDE: Who has been here. 9 MR. SPANGENBERG: Who's been here. I once 10 heard him testify in one of his cases where the 11 Judge asked him that question. His answer was, 12 "Your Honor, I'm not qualified to give you an 13 opinion on the Constitutionality of the indigent 14 defense system in this county. That's a judicial 15 determination." 16 MR. IDE: What are we hiring you for? 17 MR. SPANGENBERG: No, there is no question 18 in my mind that there are a number of very serious 19 problems having to do with the appointment of 20 counsel, the compensation of counsel, the systemic 21 way in which the service is being delivered. 22 The inability of people who are required 23 under the Federal Constitution, the State 24 Constitution, and the state law to receive 25 appointment of counsel who are not getting them. KING COURT REPORTING SERVICE 107 1 MR. IDE: And then the second thing I 2 thought I heard you say was that there is a very 3 expensive and inefficient approach right now where 4 the people -- the jail costs are higher than what 5 they ought to be and if the system ran correctly 6 you would be saving money in certain areas. I 7 hope that you can document -- you know, come up if 8 you can -- 9 MR. SPANGENBERG: I will let the Federal 10 Judge do his study. 11 MR. IDE: Well, let me carry this forward. 12 I mean, I would like to see you come in with 13 statistics that says this proves the case, or come 14 in and say there is no system of statistics and 15 that sort of proves the case. 16 I mean, you having talked to people but you 17 can't tell us who you talked to and just saying 18 I've got some conclusions. You know, we need as 19 much as we can in meat. To just say this is why 20 my vague -- well, vague isn't the right word, but 21 my conclusions are what they are. 22 In other words, you're not being judicial, 23 but you are telling us, but we need your help 24 other than saying I went and talked to a bunch of 25 people and my gut feel is -- KING COURT REPORTING SERVICE 108 1 MR. SPANGENBERG: I think I can give you a 2 great deal of help, but I can tell you right now 3 we are not going to violate the confidentiality of 4 the individuals that we spoke to. 5 MR. IDE: That's fine. 6 MR. SPANGENBERG: But if you look at the 7 county jails in this state, or look at some of the 8 county jails, I went to one county jail in an 9 unknown place that had a population of, I think it 10 was 210, and it was rundown, and it was a real 11 mess. 12 And so they modified and built the new jail 13 to a capacity of 400 two years before I arrived at 14 the jail. And I asked them what the population 15 for the jail was, and they said 413. They were 16 over by 13. And I said, How many are on loan? Do 17 you know what on loan means? From other counties. 18 180. 19 There were 180 individuals coming from as 20 far as two hours away, another county that had no 21 jail, to this jail to fill it up to capacity, and 22 that's without the question of people that were in 23 there who couldn't make bail and who were no 24 threat, and who, if they had an early appointment, 25 wouldn't be in jail. KING COURT REPORTING SERVICE 109 1 And there is no question about the fact that 2 I asked Judges, and County Commissioners, and 3 Magistrates if I were a private retained lawyer 4 and I get a call at 3:00 o'clock in the morning 5 from my client who had a very good retainer to 6 give me, is there anything more that I could do on 7 behalf of that retained client that will happen to 8 the other clients who are not retained, who are 9 indigent in this system? And the answer was yes, 10 in every case. 11 Now, that's -- I'm not saying that we're 12 looking for the system that will match the 13 qualifications of every experienced, retained 14 criminal lawyer, but I pause for a minute because 15 I practiced criminal law for sometime, and I know 16 what I did when I got a call at 3:00 o'clock in 17 the morning from a client that really needed me. 18 I was out. And so -- anyways. 19 CHAIRMAN MORGAN: Bob, I just have a 20 question for you if you could comment on it. In 21 terms of the State Bar's resolution, do you have 22 any comment on this Paragraph 4 which talks about 23 comparable compensation? We talked about that 24 earlier this morning. 25 MR. SPANGENBERG: I do have a comment about KING COURT REPORTING SERVICE 110 1 that. I think that we're not going to achieve, 2 none of us are going to achieve an equity in the 3 compensation for retained private lawyers, for 4 court-appointed lawyers. It's just not possible 5 to do that, but we need to move towards adequate 6 compensation, whatever that might be. 7 We need to not worry about in some courts 8 where vouchers are cut significantly. Begin low 9 and then cut from the low, and sometimes cut in 10 half without explanation. 11 We have to give the court-appointed lawyers, 12 whether they're contract attorneys, or panel, or 13 public defenders, the minimum tools of the trade, 14 and that means investigators when appropriate, 15 experts when appropriate, a reasonable fee that 16 includes some amount of overhead so that a person 17 can make a living, not a living off these cases, 18 that can function, can have an office. 19 We met lawyers who don't have an office. 20 They operate out of their car. They don't have a 21 secretary. They have a cell phone and an 22 answering machine, and they're doing these cases. 23 And, you know, we have to get over that 24 hurdle at least to adequate compensation, and I 25 think adequate compensation includes some amount KING COURT REPORTING SERVICE 111 1 of overhead donated to or given to the lawyer plus 2 a fee on top of that, and we now have four states 3 where that is mandated. 4 CHAIRMAN MORGAN: Wilson. 5 MR. DUBOSE: Yeah. I wanted to clarify any 6 mistakened impression that Paragraph 4 calls for 7 indigent defense counsel and privately retained 8 counsel to be compensated comparable. What this 9 calls for is indigent defense counsel and 10 prosecutors to be compensated, and they would be 11 the same as professional appeals. 12 MR. SPANGENBERG: I can comment on that, 13 also. I apologize. 14 My view of this is that the question is 15 not -- for me, the question is not whether the 16 prosecutors are overpaid, has too many resources 17 or whatever. That's a totally separate question, 18 and I have testified a number of times on behalf 19 of the prosecutors' offices that I felt have been 20 underfunded. 21 I think what we really need to think about 22 is adequate balance in funding, which takes into 23 respect all of the things that were said about 24 prosecutors who do many other things. They do all 25 of the screening and eliminate many Defendants who KING COURT REPORTING SERVICE 112 1 were never brought to court. They have many other 2 responsibilities. Some county prosecutors also do 3 city work and so forth and so on. 4 And so I think there is a question less of 5 parity. I wouldn't agree with parity. I would 6 say adequate and balance. Sufficient resources 7 for indigent defense to be able to do the job, and 8 that's where I would -- that's my point. Not 9 equity -- I think that at least in urban cities 10 salaries between a Public Defender's office and a 11 District Attorney's office should have some direct 12 relationship. And many, many places in the 13 country they do, but apart from those exceptions I 14 think they're separate. 15 CHAIRMAN MORGAN: Ms. Flora. 16 MS. DEVINE: I have one question, Bob, and 17 for the Commission as well, Mr. Chairman. 18 Sometime ago you received a letter from Mike 19 Shapiro regarding the issues of mental health and 20 juvenile as it relates to the systemic problems in 21 the system, and I thought we might ask you to 22 comment upon that. 23 And the other question for the Commission is 24 whether we need to receive some information about 25 those two issues before this Commission in order KING COURT REPORTING SERVICE 113 1 to complete our study of it, and GIDC is prepared 2 to share some of that information. 3 MR. SPANGENBERG: We did look at the 4 question of mental health particularly in terms of 5 the people who are arrested and held on bond, and 6 whether or not there was a screening or what 7 process took place, and not unlike other places. 8 I mean, there were cases that fell through 9 the cracks, and there were some areas where 10 virtually no mental health services were available 11 or provided. 12 I didn't talk about juvenile this morning 13 because I thought I was going to have five minutes 14 to talk, but there are some very serious problems 15 in appointment of counsel, or lack of appointment 16 of counsel in juvenile cases, also. 17 And, really, an awful lot of it is money. 18 Not all of it, but a lot of it is money. 19 MS. DEVINE: So when you look at the issue 20 about funding and the figure that's been sort of 21 tossed out, reluctantly tossed out, about $70 22 million, or $80 million, if we were to guesstimate 23 about how to resolve it, would that also include 24 addressing issues related to the mental health and 25 the juvenile system? KING COURT REPORTING SERVICE 114 1 MR. SPANGENBERG: I think it would have to 2 address all of the issues related to appointment 3 of counsel and whatever arises out of the 4 appointment of counsel in terms of expert funds 5 for competency hearings, psychological hearings, 6 other kinds of expenses and investigation would 7 definitely have to be a part of it. 8 Mr. Chairman, when we were in Kentucky with 9 a similar group to this, this very question came 10 up. How much? How much? How much? 11 One of the members of the Commission said, 12 "Well, I'd like to know what is the average amount 13 nationwide that the states are paying because I 14 don't think Kentucky should be below the average, 15 and if they are we need to bring them up to the 16 average." 17 MR. POWELL: Well, it turned out that the 18 information that we were able to put together 19 showed that they were down in the bottom quarter 20 where you are, and it would take -- they were in 21 at $19 million. They needed another $10 million. 22 They're a much smaller state than your 23 population, but the information that we have, if 24 you were to take a number which is the per 25 capita -- average per capita cost for all of the KING COURT REPORTING SERVICE 115 1 50 states, the best number that we could come up 2 with would be about $9.00 per person, which would 3 put your system's needs at about $70 million, $72 4 million, and that would put you on a cost per case 5 in the middle ranking in the country, and you 6 would have both southern states above and below. 7 I'm not recommending that, I'm just saying that. 8 MR. KURTZ: $9.00 per capita, and what's the 9 capita? 10 MR. SPANGENBERG: Population. 11 MR. KURTZ: Population of the state? 12 MR. SPANGENBERG: Population expenditures. 13 MR. HOLMES: Bob, I'd like to ask you, I 14 thought the resolution of the Georgia Bar and the 15 presence of such distinguished members of the Bar 16 was extraordinary this morning. 17 Based on your experience in other states, 18 does this move the ball significantly down the 19 field toward implementation? And what was the 20 role that the respective bars in Kentucky, and 21 Texas, and North Carolina, and should our Bar do 22 more or is this -- just kind of comment, if you 23 would, for me. 24 MR. SPANGENBERG: Well, I think that in 25 looking at the resolution, and in looking at the KING COURT REPORTING SERVICE 116 1 various parts of it, I think that there is 2 something important to say for every single one of 3 those resolutions. 4 And we certainly might come out a different 5 way on things, but I think that the idea of state 6 funding, the idea of having some real oversight, 7 the idea of having standards and guidelines that 8 Judges and everybody can look to with variations, 9 the idea of making sure that there is sufficient 10 input at the local level. 11 And someone said -- and we found some 12 excellent programs. I would not like to see some 13 of those programs that we saw go out of business 14 simply because they don't fit into some very neat 15 kind of category, but I think state funding, 16 whether it's 100 percent state funding or 17 whatever, but at the same time if you do that 18 you're going to have to do it in a way that it 19 doesn't replace the county funding, at least until 20 you get up to a certain level because it can't 21 just supplant the county funds and then you really 22 don't have anything more. 23 What some states have done is they've drawn 24 a line. Last year's budget is the line for the 25 counties, and in the future it's a baseline, and KING COURT REPORTING SERVICE 117 1 in the future -- this year they don't have to pay 2 any more, and over time as the state increases 3 they will decrease, but you don't lose completely 4 county funds. 5 Kentucky had a statute that said something 6 like the state is going to take over funding and 7 we hope very much that the counties will continue 8 to contribute, and that was 20 years ago, and 9 there are now three counties that contribute in 10 Kentucky. 11 MR. GRIFFIN: Go back to the question, 12 though. The question was, what did the Bar 13 associations do in the other states? 14 MR. SPANGENBERG: Well, I think -- 15 MR. GRIFFIN: Is this good? 16 MR. SPANGENBERG: I think that many of them 17 did what's being done here. They put a study 18 commission together either by legislative 19 authority, or the State Supreme Court, or the 20 State Bar. It's been done many different ways 21 across the country, but it's had a makeup similar 22 to what you have had here. 23 If the question is -- well, the State Bar 24 has played different kinds of roles. Some states 25 they have played a very inactive role, in my KING COURT REPORTING SERVICE 118 1 judgment, and have not stepped to the plate. 2 From everything that I know here, that's not 3 true, either 20 years ago or today, and I think 4 they really stepped to the plate. Whatever you 5 may say about the resolutions, I think they 6 stepped to the plate in a very vigorous and 7 forthright way and made their position very clear. 8 That doesn't mean that that will be the 9 final result, but I think to their credit they had 10 the gumption as lawyers to step forward and saying 11 this is what needs to be done, and there are other 12 states like that, but there are some states that 13 the State Bar is not involved at all. 14 MR. IDE: But if the officers of the Court 15 are saying this is a huge problem, you would think 16 that it is a signal to society that there is a 17 real problem there. 18 MR. SPANGENBERG: I certainly would. I 19 certainly would. I think there is a real problem. 20 MR. IDE: I think Paul's point is if you got 21 the people that are in there everyday saying this 22 isn't going to work under this system, that that 23 should be a signal to a broad base. 24 MR. SPANGENBERG: Someone mentioned, I just 25 want to say this one more thing, and I think KING COURT REPORTING SERVICE 119 1 someone said, and I probably am not paraphrasing 2 it correctly, aren't there a lot of good people 3 out there? Yeah, there are a hell of a lot of 4 good people out there, and people who will 5 continue to support it, and will be a nucleus of 6 excellence, whether they're Judges, or 7 court-appointed lawyers, or whatever, and they're 8 looking for some help, and they're looking for 9 some direction, and you're not going to be one of 10 finding people out there who are as skilled and 11 qualified and committed. They're just waiting for 12 you to give them help. 13 CHAIRMAN MORGAN: And on that note I'd like 14 to say we again appreciate all of your continuing 15 work on behalf of the Commission. We look forward 16 to getting your report. And at this point we're 17 going to adjourn and go into executive session. 18 19 (Hearing conclude at 12:25 p.m.) 20 21 22 23 24 25 KING COURT REPORTING SERVICE 120 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 27th day of July, 2002. 23 24 ________________________________ DIANE KING, CCR-B-1957 25 KING COURT REPORTING SERVICE