1 1 2 SUPREME COURT COMMISSION ON INDIGENT DEFENSE 3 4 5 6 June 19, 2002 7 9:30 a.m. 8 9 10 11 Supreme Court of Georgia 12 Judicial Conference Room 244 Washington Street 13 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 3 PROFESSOR PAUL KURTZ JUDGE C. ANDREW FULLER 4 MS. PHYLLIS HOLMEN MR. JERRY GRIFFIN 5 REPRESENTATIVE PAUL HOLMES MS. AASIA MUSTAKEEM 6 MS. FLORA DEVINE MR. ROBERT E. KELLER 7 MR. C. WILSON DUBOSE MR. CHARLES T. LESTER, JR. 8 MR. HOWARD O. HUNTER JUDGE A. HARRIS ADAMS 9 JUDGE LAWTON STEPHENS 10 GUESTS PRESENT: 11 JUSTICE CAROL W. HUNSTEIN MR. JAY B. MARTIN, AOC 12 MS. CYNTHIA CLANTON, AOC MS. TRISHA RENAUD, FULTON DAILY REPORT 13 MR. FRED D. TAYLOR, SCLC/GEJ MS. SHENITA BRAZELTON, INTERN, BELLSOUTH 14 MS. KENDALL BUTTERWORTH, BELLSOUTH MS. JULIE COOK, BELLSOUTH 15 MS. ERICA MORRIS, INTERN, BELLSOUTH MR. STEVE EARNEST, BELLSOUTH 16 MR. HEWLETT ASKEW, OFFICE OF BAR ADMISSIONS MR. MICHAEL B. SHAPIRO, GIDC 17 MS. SONYA SMITH, GOVERNOR'S OFFICE MS. LAUREN REEDER, GOVERNOR'S OFFICE 18 MR. BILL RANKIN, ATLANTA JOURNAL-CONSTITUTION MS. ZAHRA KARINSTAK, GOVERNOR'S OFFICE 19 MS. MAREA BEEMAN, THE SPANGENBERG GROUP MS. EMILY KOPP, GEORGIA PUBLIC RADIO 20 MS. ROSLYN SATCHEL, SOUTHERN CENTER FOR HUMAN RIGHTS 21 MS. SHENITA STEPHENS, INTERN WITH JUDGE FULLER MS. LAURA FINGER, INTERN WITH JUDGE FULLER 22 MR. PATRICK CHERECHES, STUDENT, GEORGIA SOUTHERN UNIVERSITY 23 MS. ERIN SHEAR, INTERN, GIDC MR. STEPHEN FARKAS, GIDC 24 MS. SARA TOTONCHI, GEORGIANS FOR EQUAL JUSTICE 25 KING COURT REPORTING SERVICE 3 1 GUESTS PRESENT: 2 MS. DEBRA NESBIT MR. MARK MIDDLETON 3 MS. MARIANNE MCMILLAN, GIDC MS. DEBRA MULAREN, GIDC 4 MS. SYLVIA CALEY, ATLANTA VOLUNTEER LAWYER SOUND MS. LISA ZAHREN, SOUTHERN CENTER FOR HUMAN RIGHTS 5 TOVANNA YOUNG, STUDENT, MORRIS BROWN COLLEGE SANDRA WILEY 6 PROFESSOR CLARK D. CUNNINGHAM, GEORGIA STATE UNIVERSITY COLLEGE OF LAW 7 MR. JOHN GARLAND, UNIVERSITY OF GEORGIA SCHOOL OF LAW 8 MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN RIGHTS 9 PRESENTERS: 10 IMPACT OF MENTAL HEALTH ISSUES ON INDIGENT 11 DEFENSE 12 MS. DEBRA J. BLUM, DIRECTOR, MENTAL HEALTH ADVOCACY DIVISION, GIDC 13 INDIGENT DEFENSE IN JUVENILE COURTS 14 MR. ERIC J. JOHN, DIRECTOR, GEORGIA COUNCIL OF 15 JUVENILE COURT JUDGES 16 MS. LYNN K. BREWSTER, STAFF ATTORNEY, GEORGIA COUNCIL OF JUVENILE COURT JUDGES . 17 MS. SUSAN E. TEASTER, DIRECTOR, JUVENILE ADVOCACY 18 DIVISION, GIDC 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: Good morning, everyone. 3 I'm delighted to see such a terrific turnout for 4 this morning's meeting of the Commission. 5 MR. KURTZ: I think some of these people 6 think they're qualifying. 7 CHAIRMAN MORGAN: This is the Commission on 8 Indigent Defense. My name is Charles Morgan. I'm 9 the chair of the Commission. Following our 10 tradition, what I'd like to do is go around the 11 table and ask the Commissioners to introduce 12 themselves and then we'll go around to the 13 audience and ask them to introduce themselves, 14 also. 15 We have a fairly informal type of setting so 16 it will be helpful to have everyone -- know who 17 everyone else is. And I'll start with our 18 distinguished reporter. 19 MR. KURTZ: I'm Paul Kurtz and I'm on the 20 faculty of the University of Georgia Law School 21 and I'm the reporter for the Commission. 22 JUDGE FULLER: I'm Andy Fuller. I'm a 23 Superior Court Judge in Hall County and Dawson 24 County, and also represent the Council of Superior 25 Court Judges and a member of the Indigent Defense KING COURT REPORTING SERVICE 5 1 Committee. 2 I'm going to take the opportunity to 3 introduce my interns. Laura Fager, if you well 4 need to stand up, and Janita Stephens, who are 5 here with me this morning, and they're working 6 with our office in Gainesville. 7 CHAIRMAN MORGAN: Well, before we go and not 8 to be one up by a Judge, I'd like to introduce 9 BellSouth's interns, Erica Morris and Shanita 10 Brazelton are here, and they're visiting us this 11 summer from Harvard and Vanderbilt law schools, so 12 welcome. Sorry. 13 REPRESENTATIVE HOLMES: I'm Paul Holmes. 14 I'm with the insurance company Life of the South. 15 I live in Monticello, Georgia, and I don't have 16 any interns with me. 17 MR. GRIFFIN: I'm Jerry Griffin, Executive 18 Director of the Association of County 19 Commissioners of Georgia. 20 MS. DEVINE: I'm Flora Devine. I chair the 21 Georgia Indigent Council, and I'm an attorney with 22 Kennesaw State University in Cobb County, and I 23 was an intern. 24 MR. HUNTER: I'm Woody Hunter from Emory 25 University and having no intern, I'm sitting KING COURT REPORTING SERVICE 6 1 between two former students of mine. 2 MS. BREWER: I'm Lynn Brewer. I'm the staff 3 attorney with the Council of Juvenile Court 4 Judges. 5 MR. JOHN: I'm Eric John, and I'm the 6 director of the Council of Juvenile Court Judges, 7 and I'd like to add that Judge Nash, Juvenile 8 Court Judge from DeKalb, who is the chair of our 9 Indigent Defense Committee, was going to be here 10 but he had a specially set matter which did not 11 come off the calendar and so, unfortunately, he's 12 not here, but he is very interested in the work of 13 this Commission. 14 MR. KELLER: I'm Bob Keller. I'm the 15 District Attorney from Clayton County. 16 MS. HOLMEN: I'm Phyllis Holmen with Georgia 17 Legal Services. Our interns are back at the 18 office working. 19 CHAIRMAN MORGAN: I'll pass on the 20 opportunity to respond. Why don't we -- Julie, 21 why don't you go ahead? 22 MS. COOK: I'm Julie Cook. I am with 23 BellSouth. 24 MS. LOONEY: I'm Ginny Looney. I work for 25 the Supreme Court of Georgia. KING COURT REPORTING SERVICE 7 1 JUSTICE HUNSTEIN: I'm Justice Hunstein, 2 Justice of the Georgia Supreme Court. 3 MR. SHAPIRO: I'm Mike Shapiro, director of 4 the Georgia Indigent Defense Council. 5 MS. SMITH: Sonya Smith. I'm an intern with 6 the Governor's office. 7 MS. HOLMEN: Working. 8 MS. GREEN: I'm Laura Green. I'm also an 9 intern with the Governor's office. 10 MS. ESNER: I'm Marsha Esner. 11 MR. RANKIN: I am Bill Rankin with the 12 Atlanta Journal-Constitution. 13 MR. GARLAND: John Garland of the University 14 of George law school. 15 MR. RUNDLETT: I'm Alex Rundlett with the 16 Southern Center for Human Rights. 17 MR. FORKENSACK: Clark Forkensack, and I'm 18 in the Governor's office, and those are my two 19 interns. 20 CHAIRMAN MORGAN: Steve, why don't we go 21 here before we go to the next? 22 MR. EARNEST: Steve Earnest, an attorney 23 with BellSouth. 24 MS. BRAZELTON: Again, I'm Shanita 25 Brazelton. I'm an intern with BellSouth. KING COURT REPORTING SERVICE 8 1 MS. MORRIS: I'm Erica Morris. I'm also an 2 intern with BellSouth. 3 MS. BUTTERWORTH: I'm Kendall Butterworth 4 with BellSouth. 5 MS. CLANTON: Cynthia Clanton with the 6 Administrative Office of the Courts. 7 MS. BEAMAN: I'm Maria Beaman with the 8 Spangenburg Group. 9 MS. COOK: I'm Emily Kopp, Georgia Public 10 Radio. 11 CHAIRMAN MORGAN: If you all in the back row 12 could speak up because our wonderful reporter is 13 sitting here next to me. It's a long way back 14 there. 15 MS. KOPP: I'm Emily Kopp, Georgia Public 16 Radio. 17 MS. SATCHEL: And I'm Rosalind Satchel with 18 the Southern Center for Human Rights. 19 MS. STEPHENS: I'm Shanita Stephens, an 20 intern with Judge Fuller. 21 MS. FAGER: I'm Laura Fager, an intern with 22 Judge Fuller. 23 MR. CHURCH: Patrick Church, a student at 24 Georgia Southern. 25 MS. SHEPP: I'm Erin Shepp. I'm a political KING COURT REPORTING SERVICE 9 1 science major at Georgia Southern University and 2 I'm looking for an internship. 3 MR. CUNNINGHAM: My name is Clark 4 Cunningham. I'm the newly appointed W. Lee Burge 5 Professor of Law and Ethics at Georgia State 6 University. I've just come from Washington 7 University in St. Louis where I was a professor 8 for 12 or 13 years. During much of that time I 9 directed our criminal justice college, and so I 10 have a particular interest in criminal justice. 11 MR. FARCUS: I'm Steven Farcus. I'm an 12 intern at the Indigent Defense Council. 13 MS. TOTONCHI: I'm Sara Totonchi with 14 Georgian for Equal Justice. 15 MR. KENDRICK: Michael Kendrick, 16 Administrative Office of the Courts. 17 MR. MARTIN: Jay Martin, Administrative 18 Office of the Courts. 19 CHAIRMAN MORGAN: Well, I think -- did we 20 miss anybody? Oh, I didn't see you come in. I'm 21 sorry. 22 MS. MUSTAKEEM: I'm here, though. Aasia 23 Mustakeem. I am an attorney with Powell, 24 Goldstein. 25 CHAIRMAN MORGAN: Well, thanks everyone. We KING COURT REPORTING SERVICE 10 1 appreciate that, and I would like, again, to 2 welcome everybody for being here, particularly so 3 many interns. It's great to see you, and we have 4 a very important set of subjects to talk about 5 today. 6 And I want to thank particularly two of our 7 Commission members, Bob Keller and Flora Devine, 8 for helping to organize and arrange for this 9 morning's session. 10 And with that, I'd like to turn it over to 11 Flora and Bob to kick us off, please? 12 MS. DEVINE: Okay. Well, I think you're 13 already sitting there. 14 MR. KELLER: We're already there, okay. 15 Well, we were talking at our last Commission 16 meeting, we were talking about different aspects 17 of -- and different groups that might be involved 18 with indigent defense and making sure that we had 19 all of the components in place before the 20 Commission got down to the real task of trying to 21 formulate its recommendations, and we've talked in 22 terms of mental health, and we've talked in terms 23 of juvenile. 24 And so I was volunteered to make contact 25 with Eric John, the Council of Juvenile Court KING COURT REPORTING SERVICE 11 1 Judges, and talk in terms of making a presentation 2 involving the indigent defense and juvenile court, 3 and let me just introduce to you two people whose 4 names have already been introduced. 5 Lynn Brewer, who is a staff attorney for the 6 Council of Juvenile Court Judges. She joined the 7 staff in 1998. Graduated from Emory Law School, 8 and she is the staff to the council's indigent 9 defense committee. 10 And, of course, Eric John, who is the 11 executive director for the Council of Juvenile 12 Court Judges. He graduated from the Cumberland 13 School of Law, and he joined the council in 1994. 14 And prior to that he served as assistant counsel 15 for the office's legislative council. 16 And let me just say a personal note about 17 Eric. Eric is always at the legislature looking 18 and monitoring legislation on behalf of the 19 Juvenile Court Judges. And just from my personal 20 experience, he has a very keen mind, he is a very 21 objective person, and he is a pleasure to work 22 with. 23 Now, let me quickly point out, he did not 24 pay me to say that nor does he live in Clayton 25 County and intend to vote from there. And so I KING COURT REPORTING SERVICE 12 1 would say those few words and then have no other 2 use for Eric. 3 But let me just turn the program over to 4 Eric and Lynn to talk about how indigent defense 5 is impacting Juvenile Court, what they might see 6 is the future of indigent defense in Juvenile 7 Court, and how we as a committee might respond to 8 what the juvenile aspect of it is. 9 MR. JOHN: Thank you, Bob. I'd like to 10 reiterate what Bob said about me and return to 11 him. I enjoy tremendously working with him during 12 the legislature. He is well respected. 13 The thing I like about him is he liked to 14 work on legislation from an objective perspective 15 to make things better for the system. I've found 16 myself to really ally with him the last two years 17 on a host of issues, and so y'all have a great 18 person involved as the Clayton County District 19 Attorney. 20 What I'm going to say is really going to be 21 very brief. We've got a handout for you that 22 we've -- of a survey we recently did, I think, in 23 the spring because of the concern of indigent 24 defense in the Juvenile Courts, and our Judges 25 really wanted to get a handle on how that's KING COURT REPORTING SERVICE 13 1 working in our courts. 2 And I have had many discussions with folks 3 at the Indigent Defense Council, with Susan 4 Teaster about improving the system. We've had 5 some work that we've been doing with the Children 6 and Youth Coordinating Council, which is the state 7 agency attached, technically, to the Governor's 8 office, but more recently with the Department of 9 Juvenile Justice that is channeling for federal 10 funds dealing with children's issues, and with the 11 Juvenile Courts. 12 And we were working with them recently on 13 some money that has come down to initiate public 14 defendant programs in certain counties of the 15 state. 16 I think I need to preface everything with a 17 little bit of information. I'm not sure how many 18 people know this, but Juvenile Courts is one of 19 the few courts that is totally, with the exception 20 of a recent enactment, totally funded by the 21 counties. And so our budgets are based on the 22 county funds. We don't collect any fees, we don't 23 generate any fees, it's really based on what the 24 county is providing, and the biggest concern is 25 how we use that money. A couple of years ago the KING COURT REPORTING SERVICE 14 1 legislature passed a bill that allowed the State 2 to provide some money for the salaries of the 3 Juvenile Court Judges, and so there is some State 4 funding for the salaries for the Juvenile Court 5 Judges coming down, and I won't get into it, but 6 it's not a total funding. 7 What we had hoped at the time was that by 8 having the State provide State funding for the 9 salaries, that that money that was being used to 10 pay the Juvenile Court Judges' salaries would stay 11 in the Juvenile Court budget for other things such 12 as indigent defense and other programs for 13 services for children. 14 That has not happened. A lot of that money 15 was just taken back by the counties and the courts 16 stayed with the same budget that they had before. 17 Obviously the Juvenile Court is attached to 18 the Superior Court for administrative purposes, so 19 they go through a budgeting process which is then 20 submitted to the county and it becomes the 21 decision of the county of how they're going to 22 budget the programs for the Juvenile Court. 23 I'm sorry that Judge Nash isn't here today 24 because he told a story, and I'm going to repeat 25 it, and I hope I do it justice, but he was sitting KING COURT REPORTING SERVICE 15 1 in his office late one day and he got a call from 2 the county fiscal office, and they were inquiring 3 about his budget for attorneys for juveniles, and 4 they were asking if it was possible to cut that 5 budget amount because they didn't think that -- 6 he, basically, was asking, you don't need 7 attorneys for juveniles, do you? Isn't that 8 matter a budgeted issue that we could cut? 9 And, of course, we had to tell them that 10 that was impossible. Not only do they need it, 11 they need a lot more. And so that sort of points 12 out where the Juvenile Courts are, not only with 13 indigent defense and attorney funding, but all of 14 the other programs that we have. 15 I'd like to get to this handout that we gave 16 you because I think that's illustrative of where 17 we are as Juvenile Courts, and it's really not 18 much more to say other than that. 19 We are totally relying on county funds and I 20 have discussed with the indigent defense people 21 about increasing the money that comes down through 22 the Indigent Defense Council's budget to the 23 Juvenile Courts to provide funding for indigent 24 defense. 25 There are a lot of other of issues, KING COURT REPORTING SERVICE 16 1 obviously. When you're talking about children you 2 also have to talk about the services parents have 3 to be provided. The law, basically, puts a burden 4 on the Court to provide counsel for children, but 5 there are others, judges who think that the 6 parents also should have an attorney provided for 7 them. 8 And in particular we have the Minnie Clark 9 cases where the parents thought and feelings are 10 different from the child and that basically forces 11 the Court to appoint an attorney not only for the 12 child, but then one independently for the parents. 13 And so it's a very tough issue in Juvenile 14 Courts and it's one where I think we're way below 15 standard, and I know there are organizations that 16 have come into Georgia and done some research on 17 juveniles, juvenile rights, and the provisions of 18 attorneys for juveniles, and there hasn't been 19 good reports. 20 And so I really would like to, if anything 21 that this Commission does, that we do strengthen 22 indigent defense in the Juvenile Courts, if not 23 through anything the Commission suggests to the 24 State or any other means, but, hopefully, to get 25 started on a dialogue with one organization who KING COURT REPORTING SERVICE 17 1 bears the burden of funding indigent defense and 2 getting the Indigent Defense Council to, 3 hopefully, strengthen the money coming to the 4 Juvenile Court. 5 The problem, as some of our judges have seen 6 it is, and I know we have had this discussion 7 before, I think Mike and I have discussed this, or 8 Susan and I, is that you have the Tripartite 9 Committee that makes the decision about funding 10 indigent defense funding and the Juvenile Court 11 who, through the law, if I'm not mistaken, is 12 supposed to receive funding for indigent defense, 13 has no representative on that Tripartite 14 Committee. 15 There is an assumption that the Superior 16 Court Judge or the others are going to represent 17 the Juvenile Courts in those discussions, and I'm 18 sure Judge Fuller does, but many other Judges come 19 back and when the Juvenile Court Judge says well 20 how much did we get this year, their response is 21 oh, are you guys -- you guys can get indigent 22 defense funding? I didn't know that. 23 And so, you know, there is just a big black 24 hole there when it relates to that issue, and if 25 anything I would like to strengthen that KING COURT REPORTING SERVICE 18 1 representation to where not only the Juvenile 2 Courts, but the other courts that are entitled to 3 receive funding. 4 I feel strongly about the indigent defense 5 funding in the Juvenile Court because I think -- I 6 don't think, I'm pretty sure I was with 7 legislative council when we changed the law to 8 specifically say that there would be indigent 9 defense funds going to the Juvenile Courts and we 10 started a cooperative effort with the Indigent 11 Defense Council to provide training seminars for 12 attorneys who were working in the Juvenile Court. 13 And that continues, but we started that 14 cooperative effort almost, I would say, about the 15 time that I became director, which is in '95, and 16 so that law was changed sometime after that. 17 It would be my wishes and those of the 18 Juvenile Court Judges that that be strengthened, 19 at the least. I'm sure it would help a lot. 20 The other thing I mentioned is the children 21 youth coordinating counsel is providing some 22 federal funding and there is a lot of federal 23 funding that is coming through the Juvenile Courts 24 through a special block grant. 25 Unfortunately, the rules of that block grant KING COURT REPORTING SERVICE 19 1 is that if counties are already receiving other 2 blocks, or other pieces of the grant, they're not 3 entitled to the public defender funding that 4 they're providing. 5 And so we have, out of the 48 circuits, we 6 only have about 12 circuits that are entitled to 7 the public defender grant, and the unfortunate 8 thing about that is that these grants, these 9 federal grants are done on a two- or three-year 10 basis, and then they want you to stop taking in 11 the federal money and have the county pick up the 12 funding and, unfortunately, that doesn't happen, 13 and so a lot of the counties will be discouraged 14 or do not apply because they know they're not 15 going to be able to get that commitment from the 16 counties and a lot of times there are some 17 matching funds. 18 Sometimes our council, through our council 19 budget, is able to put up money to be the matching 20 funds and that's been very fortunate because a lot 21 of the counties will not put up the matching funds 22 and we're able to use our council fund as a 23 matching fund even though the money does not flow 24 through the council, and that's a generous 25 provision that the federal block grant has in that KING COURT REPORTING SERVICE 20 1 it didn't allow the matching to come through 2 various parties. 3 But like I said, the request for grants just 4 went out recently on this block grant. We're 5 hoping in a month or so we'll get a better idea of 6 what the response is going to be, but I see it as 7 every other grant application being sent out for 8 the block grant. We do administer one in 9 particular, which is called the purchase of 10 services, which is a program to incarceration. 11 A lot of times the counties will not take 12 the funds, which really have no strings attached 13 other than a ten percent match because they are 14 afraid that at the time that they are pulled the 15 county has to come in to pick it up. 16 And so that's that. I think -- I'm sorry 17 it's brief, but that's basically it when it comes 18 to indigent defense on that issue and the courts. 19 I'm going to ask Lynn to say something if 20 she wants to because, as a staff attorney for the 21 newly-formed or the re-formed Indigent Defense 22 Committee of the Council they had a meeting at our 23 last seminar, which was held in the spring, and 24 they discussed some issues that they wanted to 25 pursue, and I don't know if she wants to say KING COURT REPORTING SERVICE 21 1 anything along those lines of what the committee 2 discussed. 3 MS. BREWER: As Mr. John explained, the 4 committee is just getting restarted and the 5 initial meeting was a discussion of some of the 6 issues that the members are concerned about. 7 Some of the things that were mentioned, the 8 nexus between the issues of mental competency and 9 indigent defense. The use of interpreters in the 10 courts and the Supreme Court's guidelines. 11 One of the main concerns was waiting to see 12 the results of the work of this Commission and a 13 general discussion in the meeting of hope that the 14 work of this Commission will provide some 15 assistance in terms of providing better indigent 16 defense in the Juvenile Courts. That's the gist 17 of it. 18 MR. KURTZ: Eric, could you sketch out, 19 especially for those on the Commission who are not 20 lawyers and who don't practice in this area, first 21 of all when we talk about Juvenile Courts my 22 understanding of Juvenile Courts is that they 23 handle different kinds of things. They handle 24 what would otherwise be crimes with regard to 25 older folks and also deprivation and other things. KING COURT REPORTING SERVICE 22 1 Is indigent defense an issue only with 2 regard to representing the juvenile in the quasi 3 criminal side of the Juvenile Court; is that 4 right? 5 MR. JOHN: Yeah. Let me, for some folks who 6 may not know, back in '94 a major change occurred 7 in the Juvenile Court system in that the 8 legislature divided out seven crimes that 9 automatically become the jurisdiction of the 10 Superior Court, your serious offender, and so that 11 took out a lot of your big time crimes out of the 12 Juvenile Court. 13 And so we're not talking about a lot out of 14 those unless there is still the ability to 15 transfer it down, and so it left the next serious 16 level of crime, one of which are designated 17 felonies, which are still serious, and so we're 18 talking about providing defense for the children 19 in those cases. 20 Now, the other issue that crops up, and this 21 crops up specifically when we start talking about 22 the ideas, and I know between ourselves and the 23 Indigent Defense Council, we made dibs on this, 24 the provisions, some provisions that would mandate 25 an attorney at every stage of the juvenile KING COURT REPORTING SERVICE 23 1 proceeding from the beginning. 2 The main concern the judges have immediately 3 is who is going to pay for that? That will 4 bankrupt the attorney funding for that court 5 quicker than anything. 6 And the other problem is, and there is a lot 7 of concern about this, is a lot of times if 8 parents and the children come in in these criminal 9 offenses ready to deal with the issue, and if 10 they're going to be forced to have an attorney 11 involved it's going to delay the process. 12 And as one Judge said, if you're not careful 13 you'll have a situation where I'm going to be 14 forced to assign a lawyer to talk to the parent 15 and the child about whether they need a lawyer, 16 and that's, you know, and that's going to be 17 ridiculous. That's going to slow down the 18 process. It's going to clog up the calendar, and 19 it's going to spend money faster than you can bat 20 an eye. 21 And so that's the concern. And so you have 22 that level of cases of criminal. And then you 23 have your other offenses which are called status 24 offenses, which are only offenses if they're 25 committed by a child, such as curfew violations, KING COURT REPORTING SERVICE 24 1 runaways, truancies. 2 In those cases you're going to have, you 3 know, an attorney is going to be needed for some 4 of those cases they're going to be becoming a lot 5 more, you know, folks. It's really hard. 6 Some of those appear to be the cases, and 7 Bob can talk about this with delinquencies. You 8 start off with runaways, truancies, curfew 9 violations. 10 And the other is deprivation, which is 11 actually an action against the parent, but it 12 involves the child and so the child does have an 13 attorney. He may have all kinds of help on those 14 lines. They have a guardian ad litem, the have to 15 have a CASA, which is a court-appointed special 16 advocate which in the State of Georgia it's not an 17 attorney, it's a layperson. Guardian ad litems 18 are traditionally lawyers in Georgia. And some 19 counties in this state you have a guardian ad 20 litem office attached to the Court. 21 And so there is an attorney there who are 22 employees of the court, but you have other areas 23 of the State where they're just looking for 24 whoever wants to do it. 25 MR. KURTZ: Now, in your conception of KING COURT REPORTING SERVICE 25 1 indigent defense, does it include this latter -- 2 this deprivation side of the juvenile court or are 3 we mostly focusing on status and quasi criminal 4 offenses? 5 MR. JOHN: I think that's come up. I think 6 the judges do want to include that because those 7 are very important cases, but I think 8 traditionally our notion is delinquency and maybe 9 status delinquencies. 10 MR. KURTZ: And there is a Juvenile Court in 11 every judicial district? 12 MR. JOHN: There is, according to the law in 13 the State, there is a Juvenile Court in every 14 county of the State, but there is not necessarily 15 a Judge in every county. And now we have been 16 divided up into circuits, also. 17 So you may have circuits where you have one 18 Judge for each county or you may have circuits 19 where you may even go as far as having one 20 part-time Judge who is covering two or three 21 counties, and you may have a circuit like the 22 Ocmulgee, and we all know how that circuit goes 23 from Middle Georgia up to North of I-20 towards 24 Augusta, and that's got one full-time Judge 25 handling eight counties. That Judge, basically, KING COURT REPORTING SERVICE 26 1 spends the whole day traveling. 2 MR. KURTZ: And is it still true in some of 3 the circuits that Superior Court Judges also sit 4 as Juvenile Court Judges? 5 MR. JOHN: It is, but that is down to about 6 three because when the State funding took effect, 7 when the State started funding, there were 14 8 circuits that had Superior Court Judges exercising 9 jurisdiction, and now only three are left. 10 MR. KURTZ: And that state funding is based 11 on a formula? 12 MR. JOHN: That's right. 13 MR. KURTZ: I'm sure it's complicated. 14 MR. JOHN: No, I can try to explain it. 15 It's 85,000 per circuit automatically, and then 16 here we understand how the legislature creates 17 laws. 18 MR. KURTZ: That's their job. 19 MR. JOHN: 85,000 per circuit, and then 20 every circuit that has more than four Superior 21 Court Judges, for each Superior Court Judge over 22 four that's another quarter funding of 85,000. 23 MR. KURTZ: Another quarter funding of 24 85,000? 25 MR. JOHN: Right. So, in other words, you KING COURT REPORTING SERVICE 27 1 have five Superior Court Judges, you're getting 2 85,000 and then a quarter of that, which is 3 roughly 17,000. 4 MR. KURTZ: Oh, a quarter of the 85,000, I 5 see. 6 MR. JOHN: And see here is what the inequity 7 of that formula is, is if you look at the number 8 of Superior Court Judges of all of the circuits of 9 the State you've got your top 15 circuits getting 10 all of the money, and you have the situation in 11 Ocmulgee where you have an eight-county circuit 12 and he's getting -- he's lucky because they have, 13 I think, five Superior Court Judges, or six in 14 that circuit, and so they're getting -- they still 15 don't have enough -- I mean, you ought to have two 16 or three juvenile Judges in that circuit and you 17 only have money for one. 18 MR. KURTZ: So you're getting 85,000 for an 19 eight-county circuit and 85,000 for a one-county 20 circuit? 21 MR. JOHN: Exactly. But you have Fulton 22 County that gets close to $400,000, but they're 23 using half of it because they only have two Judges 24 because the county does not want to create another 25 Judgeship and avail themselves of the rest of that KING COURT REPORTING SERVICE 28 1 money and that money goes back to the State and 2 none of the other rural courts get to use that. 3 And so you have a lot of part-time judges in 4 your rural areas, two or three that handle two or 5 three counties. 6 JUDGE FULLER: Eric, as far as numbers, do 7 you know how much is spent on indigent defense by 8 the Juvenile Courts across the State? 9 And, Mike, also I know there is a 10 reimbursement by GIDC. Does the GIDC reimburse 11 for just criminally related juvenile matters, or 12 for deprivation and other matters, also? That's 13 really two questions. 14 MR. JOHN: I don't have a number. That's 15 something we're trying to get a handle on. And 16 some of the judges, if I'm not mistaken, told me 17 that they couldn't really tell you how much 18 because a lot of times the funding is mixed in 19 with the other parts. 20 It just comes out sort of as on a receipt 21 basis for the Juvenile Court, and so bills are 22 just submitted and then paid. 23 I'm not sure where the Indigent Defense 24 Council has a handle on how much money is going to 25 the respective Juvenile Courts. That's something KING COURT REPORTING SERVICE 29 1 we want to work on to really find out who's 2 getting indigent defense funding, how much. 3 The judges told me honestly they don't know. 4 They don't know how much their county is getting 5 for indigent defense. 6 MR. SHAPIRO: You get a breakdown on cases 7 but not on the costs, so we can tell you how much 8 of the caseload we do a year just juvenile. We 9 have no indication of how much we have to provide 10 indigent services in the various levels of court. 11 JUDGE FULLER: So if I recall correctly, the 12 last that we discussed $55 million. 13 MR. SHAPIRO: $55.4 million. 14 JUDGE FULLER: That would be increased now 15 in the event that the Commission begins to 16 consider Juvenile Court. 17 MR. SHAPIRO: Well, the 55.4 includes 18 juvenile now, but we couldn't give you a 19 breakdown. Of the calendar 2000 cases, 27.6 20 percent were juvenile, and that included 21 deprivation, delinquencies, termination of 22 parental rights, unruly, incorrigible. The full 23 gamut of juvenile cases. 24 MS. HOLMEN: So you don't have separate 25 grants for the Juvenile Court? KING COURT REPORTING SERVICE 30 1 MR. SHAPIRO: Correct. 2 MS. HOLMEN: And you said 27.6 of the cases 3 that were reported? 4 MR. SHAPIRO: Right. Of the cases reported 5 in 2001, 27 and a half were juvenile cases. 6 MR. KURTZ: Do you have any sense, I know 7 you don't have the figures, but do you have any 8 sense of whether a juvenile case is or ought to be 9 more or less expensive than a non-juvenile case? 10 MR. SHAPIRO: Well, when you consider that 11 the adult cases include death penalty cases, I 12 would guess juvenile cases would lean a little bit 13 lower than the average. 14 MR. JOHN: I will add to that that I think 15 that it's true because one of the things that a 16 lot of people don't realize is juvenile cases have 17 short timelines, and so you're taking care of 18 things quickly. 19 You also don't have jury trials, and so 20 you're not -- a couple of years ago we were 21 working on increasing mediation in the Juvenile 22 Courts. This is an example of what a Juvenile 23 Court might be. And someone said I don't 24 understand how you would use mediation in a 25 Juvenile Court. You really don't go to Juvenile KING COURT REPORTING SERVICE 31 1 Courts. That's what the Judge is actually doing 2 is mediating the case because you're not trying to 3 create an adversarial situation here because, 4 obviously, we're dealing with kids, and so you're 5 basically having each of the groups to report: 6 The group that represents the child, the District 7 Attorney's office is reporting on what is it that 8 we're going to do with this child for this child, 9 and so I would think the costs would be a lot 10 lower than the Superior Court. 11 MR. KURTZ: Is it -- you alluded to the DAs. 12 Bob, is that, generally, the prosecution of these 13 cases is done by a District Attorney? 14 MR. KELLER: Generally. And now we're 15 talking about a whole another situation. If you 16 look at the legislation it says, "Upon request of 17 the Juvenile Court Judge the District Attorney 18 shall provide a prosecutor for the prosecution of 19 the case." 20 And in our circuit I had two District 21 Attorneys assigned to the Juvenile Court. Unlike 22 Superior Court, I have total discretion on whether 23 a charge is brought or not brought. Interestingly 24 enough, though, in Juvenile Court the Court makes 25 a determination whether a complaint will be filed, KING COURT REPORTING SERVICE 32 1 it is not made. 2 And so you've got a situation in some 3 Juvenile Courts where the prosecutor and the 4 defense attorney literally go the day of the 5 hearing and sit down and handle the case as 6 opposed to, in our situation, where a case comes 7 to our office, it is assigned for an 8 investigation, a defense attorney comes in and we 9 negotiate prior to indictment, you know, after 10 indictment, prior to arraignment. 11 In Juvenile Court a lot of times everybody 12 arrives at the same time to handle the case. 13 MR. KURTZ: To find out about it then? 14 MR. KELLER: Well, in some cases. In some 15 cases, literally, the Assistant District Attorney, 16 who has got other duties in other circuits, will 17 literally go to Juvenile Court and has the file 18 right there at the time, and that's when they make 19 the determination. And in some cases it's not 20 even the Assistant District Attorney, the Court 21 has their own prosecutor. 22 One of the problems that we had, and we 23 started talking about a juvenile discovery deal 24 and one of the biggest things was that there was 25 no disagreement between the prosecution and the KING COURT REPORTING SERVICE 33 1 defense about discovery, conceptually speaking, 2 but practically it created a nightmare because we 3 could not determine a uniform who had the file, 4 who was responsible for the information that was 5 being sought and discovered because the DA didn't 6 have custody of the file, the Court didn't have 7 custody of certain aspects of the file, you had 8 different agencies. If it was a DFACS case, it 9 was made by, you know, someone at some level. 10 And so you're talking about a court that is 11 defined for the best interest of the child that is 12 now being dragged in some ways into an adult 13 status where formality is now looked at as 14 impeding the progress of the court at the same 15 time you've got to make sure that the 16 Constitutional rights of the juveniles are 17 protected, and you just got a real mess on your 18 hands, and a lot of good people are trying to find 19 good solutions to a situation and it's just a very 20 difficult situation. 21 CHAIRMAN MORGAN: Bob, can you give us a 22 sense of some of the types of matters you're 23 referring to in these kind of situations where the 24 prosecutor and the defense attorney, what types of 25 cases would they be typically? KING COURT REPORTING SERVICE 34 1 MR. KELLER: Well, other than the seven 2 deadly sins, we probably shouldn't call them seven 3 deadly sins. I don't know how they got that name. 4 We were giving a little talk one time to some high 5 school students and one of the students raised 6 their hands and said, "Mr. Keller, I thought there 7 were a lot more sins than seven." I said there is 8 a lot more sins than seven. Let me tell you why 9 these are deadly. 10 Because if you commit one of these sins you 11 lose your freedom for 10 years period. And 12 juvenile seven deadlies are a little different 13 than adult deadlies -- than adult seven deadlies. 14 Armed robbery with a gun, for instance, are 15 no longer juvenile cases. Armed robbery with a 16 knife, however, would be a juvenile case. And so 17 there is a case where there is a designated felony 18 and the person can receive incarceration in a 19 juvenile facility for up to five years. 20 Burglaries, juvenile case. Entering an 21 auto, juvenile case. Child molesting. A lot of 22 child molesting cases are now sent from Superior 23 Court back down to juvenile cases -- to Juvenile 24 Court to deal with because you will find that 25 there is a history of abuse in the family, and it KING COURT REPORTING SERVICE 35 1 is in the best interest of the child to see if 2 they can be rehabilitated. 3 And so you've got some pretty significant 4 crimes that are being handled in Juvenile Court, 5 and so it's not -- this isn't someone who's run in 6 and stolen some candy and is getting their wrist 7 slapped. These can be very aggravated assaults, 8 very serious type of instances where their rights 9 do need to be protected. 10 But there, again, the formality of the 11 situation. And if a child, if Eric is arrested 12 today for armed robbery with a knife and he is 13 incarcerated, I have a ten-day time limit to get 14 this case ready and adjudicated. 15 Well, you can just imagine with a ten-day 16 time limit what pressure this puts on the Court, 17 and you've got to make sure his rights are 18 protected at the same time. 19 If certain barriers, procedural barriers, 20 are erected for the protection of the child are 21 we, in essence, really protecting the child? 22 MR. KURTZ: Eric, on the adult side of 23 things with regard to indigent defense and 24 representation of Defendants, there is a whole 25 realm of law starting from the United States KING COURT REPORTING SERVICE 36 1 Supreme Court down to a whole set of standards the 2 ABA and various groups have put forth. 3 I know In Re: Gault, I remember In Re: 4 Gault, that was a new case when I was in law 5 school just about, and I know that's where it 6 started, but is there a parallel set of standards 7 and suggestions by the ABA or various groups as to 8 the role of an attorney in specifics? 9 You alluded before to a disagreement that 10 the Juvenile Court Judges might have with the GIDC 11 or with others as far as exactly when the role 12 should begin. Is that spelled out in any sort of 13 formal way with regard to standards or principles 14 that some groups have adopted? 15 MR. JOHN: In Re: Gault started the -- it 16 was probably the first case to start to bring over 17 some of the adult rights and one was, I believe, 18 the right to counsel and some of these rights, 19 because by what Bob said, this is becoming more 20 and more, but that wasn't what you -- that wasn't 21 how Juvenile Court was set up. 22 It was not supposed to be an adversarial 23 process, and the Judges are always confused when 24 groups come in and try to bring the adult or the 25 adversarial process into the Juvenile Court, KING COURT REPORTING SERVICE 37 1 whether it be in the guise of punishment, or with 2 trying to help the child. They think that every 3 time you bring that you are bringing these. 4 There is a lot of missing areas. There is a 5 lot of areas of adult rights or adult procedures 6 that you don't have in Juvenile Court because that 7 wasn't -- and I wish I had brought the juvenile 8 code because I would have read to you the first 9 code section. 10 If you read the first code section of the 11 juvenile code it's not even the least bit 12 adversarial. It's supposed to be for the benefit 13 of the child and to rehabilitate the child and to 14 put them back into the community, and then over 15 the years it's different cases that we brought a 16 lot more of the adversarial process in. 17 But you still don't have a lot of the -- I'm 18 sure that there are a lot of things that Bob has 19 to deal with on the adult side that the lawyers 20 wouldn't have to deal with on the juvenile side. 21 MR. KELLER: Let me just mention one quick 22 thing, and that is one of the reasons, because of 23 the whole emphasis of Juvenile Court that there 24 was a "public outcry" as to the fact that crimes 25 were being committed, serious crimes were being KING COURT REPORTING SERVICE 38 1 committed and they were not being handled the way 2 the they ought, as a result the seven deadly 3 signs. 4 You know, let's take the Juvenile Court 5 jurisdiction away from them and put it in Superior 6 Court because of the horrendous aspect of those 7 things. And so that has been one of the results 8 of what has transpired. 9 MR. JOHN: And now if you look at those 10 seven deadly sins the Indigent Defense Council 11 puts a great summary of those. 12 There is one of those that's being committed 13 at like less than one percent, one of those seven 14 deadly sins. It shouldn't even be on that list. 15 A couple of years ago they wanted to add 16 arson to that list, and that doesn't make sense 17 because a child who is committing arson, I mean, 18 that child isn't a criminal. There is something 19 wrong. I mean, it's a mental issue, and you're 20 going to shift that over to Superior Court and 21 they're not going to get it. 22 You know, this juvenile who is setting 23 fires, we've got to get to the bottom of what's 24 going on. 25 REPRESENTATIVE HOLMES: Eric, the Juvenile KING COURT REPORTING SERVICE 39 1 Court Judges, do they have access to 2 investigators; trying to be a mediator that I want 3 to maybe have an independent source that I could 4 have. 5 MR. JOHN: And that's all a fiscal resource 6 answer. In your bigger areas, your independent 7 courts where you have the Court, you have all of 8 the personnel, you have investigators, and you go 9 to some of your rural areas and they're relying on 10 the Department of Juvenile Justice, or they're 11 relying on the Department of Family and Children 12 Services. They don't have a court appointed. 13 In some areas of the State you will have in 14 court a Judge, the court reporter, and maybe a 15 staff from the Department of Juvenile Justice, and 16 that's it. You're not going to have other folks. 17 You're not going to have attorneys, you're not 18 going to have a guardian ad litem. It's a fiscal 19 resource. 20 MS. HOLMEN: Two things I think we really 21 need to be cautious in this area because if the 22 Juvenile Court system were well-staffed, well 23 trained, well-supported, and fully-funded, and 24 everybody was single mindedly focused on the best 25 interest of the child we might have one situation, KING COURT REPORTING SERVICE 40 1 but we are very, very, far from that situation. 2 And children are at great risk when they go 3 to the Juvenile Court system not only because 4 they're not counseled well, their parents are not 5 counseled well, and there is not even a candidness 6 about dispositions or even charges, but once a 7 child gets caught up in the, you know, the 8 "rehabilitation system" and the youth development 9 centers, so-called youth development centers, it's 10 just downhill for those youth. 11 And so we need to be really careful about 12 protecting kids' rights that is for me it's much 13 more of a really dangerous trade-off than just 14 assuming that the Court is going to act in the 15 child's best interest. 16 The second thing that I wanted to say is 17 similar with respect to the other class of cases. 18 It's not the prosecutor who handles the 19 deprivation and termination of parental rights 20 also goes on in juvenile courts, and people make 21 mistakes in those cases, and putting a kid in the 22 foster care system is not, as we read in the paper 23 every single day, is a very dangerous thing for a 24 child. 25 And so I think it's really important that we KING COURT REPORTING SERVICE 41 1 address all of those issues carefully, very 2 strongly, and I think all of the cases need to be 3 dealt with because the deprivation and the 4 termination cases are the power of the State. All 5 of the resources of the State coming down on a 6 family where -- and they don't provide the family 7 the assistance that the family needs to help 8 correct its own problems, which many families want 9 to do but don't have the resources to do. 10 It's special Attorney Generals contract with 11 the AG's office who handle those deprivation 12 terminations. 13 MR. JOHN: And let me mention something 14 about that because they were, in the last few 15 years, making about $40 an hour, the ones who work 16 for the Department of Resource. The ones who work 17 for the Department of Transportation get paid 18 about $120 an hour, and so you have a lot of cases 19 of the people who work for something who are in 20 poverty. 21 MS. HOLMEN: Eric, I assume, I know from 22 some experiences that there are no special efforts 23 in these cases. Are there any special efforts, a 24 local level -- 25 MR. JOHN: On our level there is a big KING COURT REPORTING SERVICE 42 1 effort. Our next two presidents, Peggy Locker and 2 Robert Nash from DeKalb are big-time mental health 3 issue folks, and we've got a committee 4 specifically dealing with that. 5 And the Governor's office has a special 6 group working on that because it has become 7 evident, and from what I'm hearing on the years 8 that I've been with the council is that everything 9 now with juveniles can be pinpointed to our mental 10 health office. 11 And so there is a big effort on our part, a 12 big effort on the part of the Governor's office 13 with a special task force. They've got me 14 studying all of this to determine what we're going 15 to need to do, whether it be legislatively, 16 fiscally to deal with it because what we're 17 looking at is I think rarely are you going to find 18 a 10, or 11, or 12-year-old doing something that 19 they're a habitual criminal. 20 Something is causing that and over the years 21 the Judges have been moving towards the thought 22 that as they see more cases that's mental health 23 related, and it can be something as someone 24 mentioned here is treatment by, I think Bob 25 mentioned it, that treatment by a parent, how KING COURT REPORTING SERVICE 43 1 they've been treated by their parents is what's 2 causing the mental problems. Not because they 3 happen to be a bad kid. 4 MS. DEVINE: Mr. Chairman, this may be a 5 good time to bring the other two voices into the 6 conversation so that we'll have time for questions 7 that include the three of you all as well. 8 And so I'd like to propose that if there are 9 no other questions. 10 CHAIRMAN MORGAN: Please. 11 MR. KELLER: I want to mention one thing 12 that Eric said is we started a truancy initiative 13 program, and one of the little statistics, and 14 this is from one of our Juvenile Court Judges, but 15 what we tell them and the interesting statistics 16 that we talk about, status offenses, is that 80 17 percent of the burglaries committed by juveniles 18 are committed during the school hours. 19 And so it's just a real interesting little 20 statistic. We're talking about status offenses 21 really do impact on true criminal defense 22 adequacy, and with that do you wish for us to move 23 out? 24 MS. DEVINE: I think that would be good for 25 the recording of it. KING COURT REPORTING SERVICE 44 1 JUDGE FULLER: And may I ask one more 2 question? 3 Eric, I noticed that the Juvenile Courts use 4 a variety of different services to provide 5 indigent defense. Has the council developed an 6 opinion as to which is the best defender 7 appointment? 8 I notice there appear to be no contract 9 systems within the Juvenile Courts. Does the 10 council have an opinion as to which is best? Has 11 the council made any effort to come up with a 12 uniformed method of service providing of indigent 13 defense? 14 MR. JOHN: I don't think we have right now. 15 This committee, I think, is going to develop that, 16 but if history or experience helps me or anything 17 is those areas where on the deprivation side they 18 happen to have in-house guardian ad litems which 19 are attorneys that are hired by the court and that 20 are committed to that particular issue. Those are 21 the situations where the Court is working best. 22 And I think in the end probably some sort of 23 in-house, or public defender, or someone that will 24 be going to our seminars or the specific siminars 25 that are put on for the National Council is going KING COURT REPORTING SERVICE 45 1 to be probably your best, just from that 2 experience, the guardian ad litems, and that's 3 rare, though. 4 We only have guardian ad litem offices in 5 just a few of the counties, and those happen to be 6 your big Metro Atlanta counties. 7 JUDGE FULLER: And can I follow up with one 8 additional? 9 Do you know whether the service provided by 10 the Superior Court mirrors the Superior or State? 11 In other words, the Superior Court of Hall County 12 uses the appointment system. So does the Juvenile 13 Court. Is that usually the case that the Juvenile 14 Court follows what the Superior or State Courts 15 happen to do with indigent defense service 16 providing, do you know? 17 MR. JOHN: I don't know about that. 18 MS. HOLMEN: I was just going to say the 19 guardian ad litem really is a different role for 20 counsel for the children. 21 MR. JOHN: Oh, I know, but in Georgia it's 22 not that different because the guardian ad litems 23 in Georgia and deprivation cases are your 24 traditional attorneys. Traditional attorneys are 25 representing the child. KING COURT REPORTING SERVICE 46 1 MS. HOLMEN: But don't they see their job as 2 figuring out what the best interest of the child 3 is in making recommendations to the Court? 4 MR. JOHN: Most definitely. 5 MS. HOLMEN: The attorney for the child -- 6 MR. JOHN: Is in the best interest of the 7 child. 8 MS. HOLMEN: And is supposed to represent 9 the child's wishes. 10 MR. JOHN: And their best interest. 11 MS. HOLMEN: I don't think that's. 12 MR. KURTZ: There is a big dispute -- 13 MR. JOHN: That's why I'm saying. If you 14 read the first code section of the juvenile code, 15 and this is why Bob was right, there is a chain 16 that happened in the way the system is resolving. 17 MS. HOLMEN: But if you read the Code of 18 Ethics regarding lawyers -- 19 MR. JOHN: Oh, most definitely. That's 20 correct. When you're talking about technicality, 21 yes, most definitely. 22 And there are different rules about what 23 happens to the guardian ad litem that all of a 24 sudden thinks that you need to recommend 25 termination of parental rights that guardian ad KING COURT REPORTING SERVICE 47 1 litem by a case law is being removed as that 2 child's guardian ad litem and cannot continue in 3 that role because all of a sudden what you're 4 saying comes up. 5 And so there is a procedure for bringing in 6 another guardian ad litem for that, but, no, 7 technically yeah. 8 MS. DEVINE: Don't leave, though, Eric. We 9 want to just bring in these other two voices and 10 add them to you for conversation, and so there may 11 be questions that come up later. 12 Susan Teaster and Debra Blum have agreed to 13 share their perspectives with the Georgia Indigent 14 Defense Council. 15 A month ago Michael Shapiro, who you heard 16 from earlier, is the executive director of the 17 counsel, wrote to the Commission here and 18 suggested that we include this information 19 regarding mental health advocacy and juvenile 20 advocacy information as a part of our study of the 21 Commission. And so we appreciate that, Michael, 22 and primarily because of your prompting they are 23 here today. 24 Debra Blum is the director of the Mental 25 Health Advocacy Division of the George Indigent KING COURT REPORTING SERVICE 48 1 Defense Council. She graduated from Emory law 2 school in '86, having received a B.A. in 3 psychology and history from the Emory College in 4 1982. 5 Debra was an assistant solicitor in DeKalb 6 County '87 to '90, and in '90 she joined the staff 7 of the Atlanta Legal Aid Society, where she 8 specialized in mental health issues. 9 In '94 she began working with the Indigent 10 Defense Council and became the director of the 11 Mental Health Advocacy Division at that time. 12 She's worked with the DeKalb County Mental 13 Health Task Force to develop Georgia's first 14 mental health court, and has collaborated with the 15 Grady Department of Psychiatry and Law, as well as 16 the division of mental health, mental retardation, 17 and substance abuse on policy issues. 18 Susan Teaster joined the juvenile Advocacy 19 Division of the Georgia Indigent Defense Council 20 as its director in March of 2000. She graduated 21 from the University of Georgia -- we'll forgive 22 her for that -- in seventy -- 23 MR. KURTZ: Hey, hey, hey. 24 MS. DEVINE: Just checking to see if you're 25 listening. KING COURT REPORTING SERVICE 49 1 MR. KURTZ: I was listening. I was 2 listening. 3 MS. DEVINE: -- in 1978 with a B.A. in 4 political science, and graduated from the Emory 5 University School of Law in 1982. 6 Susan worked with the Fulton County Public 7 Defender's office from '80 to '85 and again in 8 '93 -- from '93 until 2000. 9 While at the Public Defender's office she 10 did both, trials and appellate work, handled the 11 juvenile felonies, which were lodged in the adult 12 court system that we've been talking about, and 13 supervised the attorneys who practiced in the 14 juvenile courts. 15 From '85 to '93 Susan was in private 16 practice with the law firm of L. David Wolfe and 17 Associates where, in addition to handling criminal 18 cases,she practiced in the areas of bankruptcy, 19 worker's compensation, and general civil 20 Plaintiff's work. 21 And so Susan and Debra, I don't know which 22 one wants to go first. 23 MS. BLUM: Well, since Susan is going to 24 talk about juvenile, she probably wants to do that 25 first. KING COURT REPORTING SERVICE 50 1 MS. TEASTER: Well, I will tell you what the 2 juvenile division does. 3 We answer the questions and we developed a 4 portion of our Website with some information from 5 this. We also conduct training on Juvenile Court. 6 These will be lawyers on the delinquency and the 7 deprivation side. 8 When we go to the GIDC -- GIDC does not fund 9 guardian ad litem. Only parents in who -- who -- 10 only attorneys that represent parents in the 11 termination proceedings. The guardian ad litems 12 are not funded through the GIDC. 13 Some of the things that I brought up, and I 14 thought that I might address here, and Mike can 15 answer the question, I thought I might start off 16 with a brief history of Juvenile Court for those 17 of you who might not know where it started and all 18 of that. 19 Throughout the 18th century if you were 20 older than seven you could be tried as an adult. 21 Well, in Chicago in 1899 they established the 22 first Juvenile Court. They used the doctrine of 23 parens patri as the rationale because at that time 24 the thought process had changed as children to 25 little adults to the realization that children KING COURT REPORTING SERVICE 51 1 were less than fully developed for both, mentally 2 and morally. 3 The State had the power to protect them. 4 The focus of the earlier Juvenile Court is on the 5 child welfare. Even if there was an allegation of 6 delinquency, the focus at that time was on 7 rehabilitation and not the child. 8 About in the sixties it began to shift 9 because there were not enough rehabilitative type 10 programs and the kids weren't getting the 11 treatment that they needed. 12 Also, there were some U.S. Supreme Court 13 decisions which made the courts more formal, and 14 most importantly that was In Re: Gault, which was 15 1967. 16 MR. KURTZ: I was 11 when I went to law 17 school. 18 MS. TEASTER: Well, what happened in the 19 Gault case was that Gault basically went to court 20 without an attorney, without really knowing what 21 the charges were against him, and the Judge just 22 said okay, I'm committing you to a training school 23 for five years. 24 It was an obscene phone call type situation, 25 and Gault was committed for five years and if an KING COURT REPORTING SERVICE 52 1 adult had been convicted for the same fine the 2 maximum sentence would have been $50 and two 3 months in jail. 4 It was taken to the Supreme Court and the 5 Supreme Court at that time ruled that children do 6 have rights: The commitment to an institution, 7 the right to notice, the right to counsel, and all 8 the due process rights that adults have. 9 I want to talk about the perception that the 10 public has of juvenile crime is on the rise. As 11 Bob and Eric said, things changed in '94, and that 12 was because in '93, basically that was the peak of 13 juvenile serious crimes. 14 Well, as of March of 2001, a FBI report 15 showed a 68 percent reduction in youth homicides 16 since that peak. In 1998 youth crime was in the 17 lowest. Despite this fact, the public believes 18 that juvenile crime is on the rise, and as we've 19 seen from Eric and Bob, that's led to the shift in 20 the nature of juvenile justice. 21 The initial focus was rehabilitation. The 22 trend now is for its timing. Much of the 23 information that you're going to receive from me 24 this morning comes from this report that was 25 published last July, and it's by the ABA's KING COURT REPORTING SERVICE 53 1 Juvenile Justice Center and the Southern Center 2 for Juvenile Justice, along with several other 3 agencies. 4 The representatives of these agencies 5 visited 11 counties throughout the State, 6 including one from each of the 10 judicial 7 administrative districts, they visited urban 8 counties, rural counties, suburban areas, and all 9 the different kinds of court structures in the 10 indigent defense delivery system. 11 They observed court proceedings, they spoke 12 with judges, defense attorneys, probation 13 officers, and in some cases parents and their 14 children. 15 Before I discuss the indigent delivery 16 system I would like to discuss the issue of waiver 17 of counsel. 18 The Georgia juvenile code gives all indigent 19 children the right to counsel at every stage, at 20 every stage of the delinquency proceeding. The 21 law also allows a waiver of counsel without 22 requiring prior consultation with an attorney to 23 determine if the waiver is in the child's best 24 interest. 25 I think somebody had asked were there KING COURT REPORTING SERVICE 54 1 juvenile justice standards, and the ABA does have 2 juvenile justice standards. Those standards 3 explicitly state that a juvenile may not waive his 4 or her right to counsel. 5 Now, when the representatives were visiting 6 these counties, I have, among other things, some 7 of the things that they observed going on in 8 juvenile court. Rare representation at the 9 detention and probable cause hearings, which are 10 the earlier stages, where children were urged to 11 admit or deny the charge and to take the stand and 12 testify. 13 There was one contract attorney who handled 14 all the indigent defense cases for that particular 15 county and he had never represented the child at a 16 detention hearing. 17 A Judge reading a plea colloquy informing 18 the child of his rights after the child pled to 19 the charges. 20 One Judge expressed concern about the 21 negative impact on the operation of the court, if 22 the children knew of their right to counsel and 23 asserted that right. 24 In at least two counties it was estimated 25 that as many as 90 percent of the children waived KING COURT REPORTING SERVICE 55 1 their right to counsel. 2 There were also situations where probation 3 officers were reading the children their rights 4 and advising them as to whether or not to ask for 5 an attorney. 6 A few courts, mostly in the counties with 7 the contract or public defender systems, 8 automatically appointed a child an attorney if one 9 is not retained, and at least one Judge expressed 10 surprise that a child could actually proceed in 11 court without the services of an attorney. 12 There are a number of judges, and you've 13 heard from Eric, that are opposed to automatic 14 appointment because in the more populus area the 15 sheer volume of the caseload makes it prohibitive, 16 and in the rural areas they don't have the 17 attorneys or the money. 18 In Alabama v. Shelton, which I'm sure you're 19 all familiar with, the U.S. Supreme Court held 20 that an adult facing even a suspended sentence, 21 which might possibly deprive him or her right the 22 right to counsel. Why should an adult in a 23 criminal justice system have more rights than a 24 child? 25 We touched on some of this about the KING COURT REPORTING SERVICE 56 1 structure of the Juvenile Court system and how 2 there is no uniform system. There is no uniform 3 system for providing indigent defense. 4 As Eric said, each county is responsible for 5 their Juvenile Court structure. Fortunately, we 6 have that new law which should create more 7 full-time circuit-wide Judges, but right now, as 8 you said, you have some Superior Court Judges, 9 Juvenile Court Judges, part-time Judges, full-time 10 Judges, some represent the county, some represent 11 a whole circuit and, as I said, there are 159 12 counties in Georgia and just about 159 different 13 ways of handling the Juvenile Court system. 14 You all know the three delivery systems: 15 Contract, panel, and public defender. In Juvenile 16 Court there is another way that a child can be 17 represented. O.C.G.A. Section 1596 provides the 18 right to counsel for juveniles. 19 That code section also allows a child to be 20 represented by his or her parent or guardian in a 21 Juvenile Court proceeding. And as you can 22 imagine, oftentimes the parents' interest are 23 adverse to the child. Sometimes that doesn't 24 become apparent until the proceedings have already 25 begun. KING COURT REPORTING SERVICE 57 1 And those parents who are not attorneys are 2 clearly not trained in the law to the extent that 3 a licensed attorney would be, and may or may not 4 be aware of all the options available to the 5 child. 6 Eric talked about the type -- well, Eric and 7 Bob both talked about the time restriction in 8 delinquency cases, and that is particularly true 9 when a child is held in detention, although there 10 can be continuances and requests for continuances 11 are made. Clearly you don't want a child in 12 detention for long periods of time. 13 Attorneys expressed frustration at not being 14 appointed at the earlier stage of the proceedings 15 so that they can have time to prepare their 16 client's case. It creates very little time for 17 investigation if, in fact, you're coming to court 18 with your child on that very day. 19 One panel lawyer said he didn't see the need 20 to conduct an independent investigation because he 21 got all of the information from the prosecutor. 22 It's really like Bob here. Bob and Eric and 23 I have worked together in the last two years on a 24 juvenile discovery bill, and as he's said, it's 25 been a very long process, but all of the parties KING COURT REPORTING SERVICE 58 1 worked together in the last two years in order to 2 try to hash out a solution. 3 A lot of times defenders rely on the child 4 and his or her parents to ascertain whether or not 5 there may be any witnesses. Very rarely are 6 motions filed, and the majority of the attorneys 7 interviewed said that it was not helpful to their 8 clients because the lawyers didn't like to deal 9 with motions and frowned on the lawyers who filed 10 them. 11 There are very few appeals from the 12 adjudication of a delinquency. Here we get what 13 we talked about, a lot of lawyers think they 14 should not take an adversarial position in 15 Juvenile Court because they see their role in 16 straightening a kid out, or are we going to get 17 this kid some help? The best interest of the 18 child rather than protecting the child's 19 constitutional rights. 20 One Judge said I expect my lawyers to act in 21 the best interest of the child if they can get the 22 child off, but if it is not in that child's best 23 interest and they should not do it. 24 As you stated earlier, the ethical 25 obligations for an attorney for the child is to KING COURT REPORTING SERVICE 59 1 advocate for that child. Excessive caseloads, the 2 average part-time defense attorney handled in the 3 neighborhood of 200 to 300 cases a year. 4 Just as a lot of the Judges don't know what 5 their caseload is, a lot of the lawyers don't know 6 because they don't have the time. All the 7 attorneys recognize that the high caseload affects 8 the quality of their representation. 9 A probation officer commented that it was 10 common for the children to meet their lawyer for 11 the first time in the courtroom as the case was 12 called. Many counties treat the juvenile system 13 as kiddie court, a good place ofr the attorneys to 14 learn courtroom skills. 15 The Court views are less important and the 16 children are treated less harshly. In that vein, 17 I am going to have a few quotes from an editorial 18 from the Augusta Chronicle, which was printed in 19 the Atlanta Journal-constitution last Wednesday. 20 This is in reference to some problems at a 21 youth development campus. Two boys wrestled a 22 third one into submission and raped him in a 23 bathroom stall where an officer stood nearby in a 24 bathroom doorway, and it was not the first 25 recorded rape in that facility this year. KING COURT REPORTING SERVICE 60 1 A nurse at the facility was found to be 2 having an improper relationship with an 3 18-year-old detainee. Two boys were caught having 4 sex in one of the cottages in March. One boy said 5 he consented because he had been threatened by the 6 other. 7 A detainee was bitten by a rat on the 8 shoulder. And the article concludes that these 9 kids are supposed to be rehabilitated, not abused. 10 Now, I've said a lot of bad things, but 11 there are some good things. There are attorneys 12 who do care and who realize that the Juvenile 13 Court system really does need a complete overhaul. 14 The important thing is that all involved in the 15 process work together and that it be done soon. 16 It is inevitable that one of the good 17 attorneys will file an appeal based on one or more 18 of the issues that I've discussed today. I have 19 some recommended approaches. 20 One thing that I would like to point out is 21 in addition to providing -- the GIDC juvenile 22 provision providing training, GIDC has an area of 23 improvement grants that it has specifically 24 dedicated to the juvenile area where we get 25 applications for the Juvenile Court system for KING COURT REPORTING SERVICE 61 1 funds in order to improve their Juvenile Court. 2 Caseload limits, appointment of counsel at 3 the earliest stages, comprehensive training. With 4 juvenile law looked upon almost as a specialty by 5 both, attorneys and Judges, adequate compensation, 6 and adequate non-lawyer support and resources such 7 as experts, investigators, and social workers who 8 could be available to investigate placement 9 alternatives to detention. 10 One probation officer, and I would quote 11 this, it is not kiddie law, these cases change 12 children's lives. One probable cause hearing 13 could impact their lives forever. 14 In today's society, what happens to a child 15 in juvenile court does matter. Thank you. 16 MS. DEVINE: Why don't we go ahead and hear 17 from Debra. 18 MS. BLUM: I'm the director of the Mental 19 Health Advocacy Division of GIDC. The division 20 was started in 1992, and the first attorney who 21 worked in the division thought that her job was to 22 represent every patient who had been found not 23 guilty by reason of insanity by the State, so she 24 ran around trying to do that until finally 25 somebody read the Indigent Defense Act and they KING COURT REPORTING SERVICE 62 1 said, "Hey, you can't represent people." 2 Well, she got frustrated and she left, and 3 the next attorney came in and she thought her job 4 was not to represent any insanity people in the 5 State of Georgia, and she tried to provide 6 services. She got frustrated and she left. 7 And I said, "Okay, one thing didn't work and 8 the next thing didn't work, and so we're going to 9 combine the two approaches and ultimately the 10 legislature kind of created us, even though we had 11 already been acting for several years, and the 12 legislature gave us the authority to represent 13 people who had been found not guilty by reason of 14 insanity in the State and to assist on other cases 15 prior to that finding. 16 Well, I came here in '94. I thought oh, 17 well, this is easy. We're going to teach lawyers 18 what these cases are about, what the standards are 19 for insanity cases and comprehensive cases, and 20 I'll be out of a job. 21 Well, I was very naive because the reality 22 is most lawyers really don't care about 23 representing the individuals who have been found 24 not guilty by reason of insanity, or 25 incomprehensible to stand trial. KING COURT REPORTING SERVICE 63 1 We have expanded, just by virtue of being 2 involved in those cases, we've also come involved 3 in other cases that have been involved in mental 4 health. 5 You hear a lot about insanity and competence 6 in media, and movies, and the books, but the 7 reality is there are really not many, and in the 8 10 years since we've been doing this there have 9 really been only about 400 cases in Georgia 10 involving insanity issues. 11 Currently there are 223 people in the State 12 who are either in the hospital or on a transition 13 plan, but they're still being monitored by the 14 Superior Court. 15 If someone is found to be not guilty by 16 reason of insanity in Georgia it was very strict 17 standards, and Georgia is not unlike other states. 18 The standards have very little to do with true 19 mental health criteria, but once you enter that 20 door the mental health criteria counts and a 21 Superior Court Judge is called upon to rule upon 22 civil defense issues. 23 Well, the same Judge who has to answer or be 24 asked about those issues is the same Judge who 25 knows all about the criminal aspects of the case. KING COURT REPORTING SERVICE 64 1 And the defense attorney, if there is one, is 2 going against the prosecutor who knows all about 3 the criminal aspects of the case and really cares 4 more about that, of course, than the mental health 5 aspects. 6 And so the defense attorney is looking at 7 the mental health issues, the prosecutor and the 8 Judge are looking at the criminal issues and, of 9 course, people stay in the hospital a lot longer 10 than they would if they had been out of jail. 11 I was a solicitor in DeKalb County and in 12 1987 somebody in my courtroom pled not guilty by 13 reason of insanity in a simple battery case, and 14 if he had gone to jail on that he may have gotten 15 30 days to serve. 16 When I took this job in 1994 and looked at 17 the case list he was still in the hospital seven 18 years later, and that was pretty shocking that he 19 had spent that long in a mental institution, and 20 he spent much longer. It wasn't like he got out. 21 I'm sure it wasn't the only cases that I was 22 the attorney on one side going on and the children 23 on other side going out. 24 I'm letting you know whatever works 25 sometimes. In the juvenile context, Phyllis and KING COURT REPORTING SERVICE 65 1 Susan were both talking about the attorneys who 2 represent the person's best interest versus 3 representing the individual, and that's really the 4 big dilemma in mental health cases, and I think 5 lawyers who, in a regular criminal case, would 6 never ever presume to tell the client you need to 7 plead guilty, or worse yet, I'm going to plead 8 guilty for you. 9 They'll tell their clients you need to plead 10 guilty by reason of insanity or they'll stay in 11 jail and the attorney will handle all of the 12 paperwork for you. 13 I will talk to lawyers until I'm blue in the 14 face and say I think this is what's best for them. 15 And it happens not only on entering a plea of not 16 guilty by reason of insanity. 17 There is a lawyer in one county who is a 18 self-styled expert on mental health issues who has 19 gone to court, and when the hospital recommended a 20 period of time for release, went to the Judge and 21 said I don't think that's long enough. I think my 22 client needs to be in the hospital longer than 23 that. And nowhere else in criminal law would any 24 Judge or any D.A. not blink at a lawyer asking for 25 more time for their client. KING COURT REPORTING SERVICE 66 1 This same attorney, if you'll all excuse me, 2 calls her clients retards, and that's sometimes 3 the level -- you know, that's the level of respect 4 that clients get, at least from that one attorney. 5 And that's not everywhere, but when I took 6 this job several years later one of the public 7 defender handbooks said nothing by reason of 8 insanity cases said this is a win if you get this 9 and you can't prove your case because people stay 10 much longer in the hospital and they have much 11 greater risk. 12 I mentioned that I think the attorney has a 13 problem in the incompetency cases is because 14 lawyers don't close case, Judges close cases at 15 the courthouse, and people languish in the 16 hospitals much longer than they should. 17 The statute gives very strict time frames 18 for things to happen in a case, but like I said, 19 the case gets closed and people will be there for 20 years and years. 21 The longest case that we know of where 22 somebody has spent in the hospital is 50 years. 23 The woman was found not guilty by reason of 24 insanity in 1952, and it wasn't until a year or 25 two ago that we found her and she was released. KING COURT REPORTING SERVICE 67 1 She had long since needed to go, but nobody 2 was asking for her to go. It's an ongoing problem 3 because public defenders, court-appointed 4 attorneys, contract attorneys, they'll get one 5 case every few years. They don't know enough 6 about insanity, about incompetency, about other 7 options, perhaps, for their clients, and so they 8 don't bother to learn. 9 And it's not to say that they -- you know 10 everybody needs to become an expert, but they 11 don't have the continued institutionalization 12 appropriate. Is that basically it? That's 13 basically it. 14 They're entitled to certain hearings once 15 they're found not guilty by reason of insanity, 16 and one of the problems is people weren't getting 17 hearings because they had no access to a court. 18 The attorneys would close the file, the 19 hospital would write a letter to the Court saying 20 Joe wants a hearing, and the Court -- and in the 21 letter the hospital writes Joe wants a hearing but 22 we think he still needs to stay, and so why have a 23 hearing, you know? 24 And so we directly represent some of those 25 people, but the bulk of what we do in that KING COURT REPORTING SERVICE 68 1 situation is actually act as a broker and we try 2 and get the attorney to get the hearing, to get 3 the order to get, you know, everybody on board. 4 We do some appellate work, also, in this 5 area, helping the attorneys to direct the appeal 6 ourselves. 7 MR. KURTZ: Sometimes you actually represent 8 the individual? 9 MS. BLUM: Yes. 10 MR. KURTZ: And sometimes you simply help 11 the Defendant, the attorney representing the 12 individual? 13 MS. BLUM: That's right. And each has its 14 benefits and burdens, but I think it's really 15 helpful for us to be there and to be actually 16 doing it so we can turn around and say well I just 17 tried this. You can try this, too. 18 We provide, you know, in addition to those 19 things, we have a Website as well. We have 20 motions banks. We send people much more 21 information than they ever wanted to know about 22 this. 23 One of the big things, lawyers in cases 24 representing someone who is mentally ill is often 25 entitled to an independent expert from your own KING COURT REPORTING SERVICE 69 1 choosing. You're entitled to funds, but most 2 lawyers don't ask for the funds partly because 3 they don't know how. Partly because the Judge 4 will say well I would really rather you get the 5 hospital evaluation before I give you money. 6 Well, the hospital evaluation is a very 7 narrow evaluation. It answers only either are 8 they insane or are they incompetent? Getting the 9 funds and going independently, you get a much 10 broader based evaluation where you can go to the 11 Court and say well we don't need the temporary 12 insanity or maybe we do, but we don't want to 13 proceed that way, but we have all of this other 14 information for other things that you can do for 15 this individual. 16 MR. KURTZ: This entitlement of funds is a 17 statutory one? 18 MS. BLUM: No. It's Acky vs. Oklahoma. 19 It's a United States Supreme Court case that was 20 adopted in Georgia. It's not automatic. If you 21 can offer some proof that insanity or incompetency 22 is the issue in the case then you're entitled to 23 it. 24 MR. KURTZ: Why did Georgia have to accept 25 it? KING COURT REPORTING SERVICE 70 1 MS. BLUM: It was a Georgia Supreme Court 2 case that followed that line of reasoning that 3 said yes, he is entitled to these funds. In short 4 of insanity or incompetency being issued you can 5 still ask the Judge for funds just as you can any 6 other kind of investigator. 7 But like I said, people aren't comfortable 8 with it. They like the hospital, very neat, 9 brief, I call them drive-by evaluations very 10 often, but they answer very limited questions, but 11 Michael Shapiro and I talked about how if a lawyer 12 got a DNA case they wouldn't say oh, I took 13 chemistry in college. I'll just rely on my 14 knowledge, but we do that all the time. 15 We say oh, I took psychology, I was a psych 16 major, and we go ahead and we represent 17 individuals. Or the Judge will say that, too. 18 You know, I took Psych 101. You don't need to 19 tell me anything more about schizophrenia. And 20 it's really hard to come back and answer that. 21 MS. DEVINE: Debra, would you talk a little 22 bit about the intersection of the mental health 23 issues and juveniles? 24 MS. BLUM: There is a lot of overlapping. 25 You can tell this about a lot of the issues that KING COURT REPORTING SERVICE 71 1 they were talking about earlier. 2 Just like with juveniles. You know, 3 juveniles who are starting out with mental health 4 issues and committing arson are the same people 5 that I'm dealing with later on. 6 Robert Nash and I have talked about it and 7 DeKalb County is the first adult mental health 8 court in juvenile, but juvenile is a little 9 different, but it's almost like group therapy in a 10 courtroom. Everybody tries to talk about what 11 possible reasons are for the behavior, what some 12 possible solutions are, case workers are there. 13 Different placement options are presented to 14 the Court and I think that piece of it would work 15 well with juveniles as well as an adult. Not that 16 the mental health court is the only model to go 17 with, but it's certainly one model that's been 18 attempted elsewhere. 19 MS. HOLMEN: I wanted you to talk a little 20 bit, Debra, about the mental health court idea, 21 but more broadly what we as a Commission ought to 22 be looking at when we're thinking about indigent 23 Defendants who have mental health issues, probably 24 adults just because maybe it's more to focus, but 25 it probably would translate some to Juvenile KING COURT REPORTING SERVICE 72 1 Court. 2 What should we be thinking about? I mean, 3 we've seen indigent defendants in court with 4 mental health issues, and it's a problem for the 5 court much less than the Defendant. 6 MS. BLUM: Right. It's a huge problem and 7 it's not one that they're able to deal with. 8 MS. HOLMEN: Well, they tried, and some of 9 it is resources in the community. 10 MS. BLUM: And that's a huges problem. Let 11 me back up to talk about that because I'm sure all 12 of you read just recently they closed some beds 13 for seriously mental ill juveniles and, of course, 14 the department said well there is going to be 15 money falling into the community. 16 Right. Come on. Who here believes that? 17 We've been doing that for years and years with 18 adult mental illness where we have closed hospital 19 beds and said oh, the money is going to be in the 20 community, but it never happens. And so what has 21 happened is the jails have become our mental 22 hospitals, and Jerry will be very surprised to 23 hear it. 24 The Los Angeles jail is the biggest mental 25 hospital in this country. The day that we started KING COURT REPORTING SERVICE 73 1 looking at the DeKalb mental health court there 2 was more mental health people in the DeKalb jail 3 than there were in Georgia, and that's universally 4 true across the country more and more. 5 The sheriff's departments are dealing for 6 the first time with large numbers of mentally ill 7 people who stay there for long periods of time. 8 County commissioners are now picking up the 9 tabs, but medication costs are soaring, 10 transportation costs are soaring because there is 11 nothing in the community to help these 12 individuals, which is why they get there to begin 13 with. 14 Family members get frustrated because they 15 have no placement. They want to call the police. 16 The police find it more difficult to get them 17 treatment, so what do they do? They drop them off 18 at jail. 19 It's a much easier process, but what's 20 happened is as time goes on our criminal justice 21 system is trying to fit a round peg into a square 22 hole. Lawyers don't have the tools. Judges don't 23 have the resources, and so mental health court is 24 one reason for that. 25 What we have on staff is a part-time social KING COURT REPORTING SERVICE 74 1 worker who is available to anybody in the State 2 and anybody who calls us, Judges call us, and 3 prosecutors, and defense attorneys and say I've 4 got somebody in Macon and this is the situation, 5 can you help me? 6 And we will work with that court and with 7 that case and see if she can come up with some 8 issues. One of the other enigmas of the mental 9 health system in Georgia is that the community 10 mental health people in Macon have no idea what's 11 going on in Valdosta, and so they don't know to 12 pick up the phone and say hey Sally, what do you 13 have? They don't know Sally. 14 And so we from the outside are the ones 15 prompting these connections if they can be made, 16 or having to call Valdosta for the people in Macon 17 and say what can we do for this person? So that's 18 one answer, I think. 19 Having it state-wide is a little bit 20 unwielding. The southern judicial circuit, we 21 helped them apply for a grant and they also have 22 gotten funds from the GIDC, improvement grants to 23 fund a social worker, to fund lawyers to become 24 more specialized in mental health issues, to have 25 money to hire their own psychologist or KING COURT REPORTING SERVICE 75 1 psychiatrist so that they don't have to go to the 2 Court and run into the problems there when the 3 case didn't reach the level of insanity or 4 incompetency. 5 Most of these cases don't. Most of these 6 cases, everybody knows that somebody is just not 7 right, and everybody would like options, and so 8 these kind of other tools, I think, will really be 9 helpful. 10 The community mental health people, the 11 county commissioners, the sheriff's department are 12 all trying to band together in their little local 13 communities to figure out other solutions like 14 that. 15 There are a lot of counties who we're 16 talking about mental health courts are hiring. 17 Social workers are doing things just outside of 18 the box because everybody is so frustrated with 19 dealing with this population over and over. It's 20 the other part that comes back over and over. 21 MR. GRIFFIN: Debra, it appears to me, too, 22 that the actions of the State and the State's 23 approach to dealing with mental health is creating 24 an attitude in the public's mind that there is no 25 such thing as mental health treatment; that people KING COURT REPORTING SERVICE 76 1 don't get better, because now we house them in 2 jail and we feed them drugs and people don't get 3 better and so see. 4 MS. BLUM: Right. And the problem lies -- 5 well, I don't mean to -- well, I mean to offend, I 6 guess, but if a family member calls to have their 7 son or daughter brought to the State hospital, 8 they will stay two days, maybe seven days if 9 they're lucky. I mean, two days is stretching it. 10 They have 12-hour beds in a lot of hospitals 11 now so they're not getting help that way, and so 12 now they're looking, like I said, at the criminal 13 justice system for help. 14 And I tell some family members that the sad 15 truth is this is the first time that their family 16 member will get sustained help in one place from 17 one entity, and that's really a shame that this is 18 the first time in their lives that they have been 19 trying to use the public system for help that they 20 have to resort to the criminal justice system to 21 get any kind of real long look. 22 The danger, of course, is you get too long a 23 look in a lot of cases, but nevertheless it's the 24 first time that they can get that, that they can 25 access that care. KING COURT REPORTING SERVICE 77 1 A lot of Judges -- a lot of these cases are 2 misdemeanors initially, and sometimes they would 3 be escalating, and the stakes are low, the 4 solicitors don't want to prosecute, a case is 5 dismissed, and so the person goes out on the 6 street and then they're back. They're back. 7 The City of Atlanta has a community court 8 that deals primarily with the homeless mentally 9 ill among other populations, and I actually think 10 that they have done a good thing almost by 11 accident. I don't think their intention was to 12 help the homeless mentally ill, but they have done 13 that to a certain extent. 14 MR. DUBOSE: Is institutionalization is the 15 -- what's the standard for institutionalization? 16 MS. BLUM: Well, it's ironic because the 17 State picks up that tab. Not in jail, in the 18 State hospital. 19 MS. HOLMEN: The State hospital, okay. 20 MR. GRIFFIN: Which one is closer? 21 MS. BLUM: They act like everybody else. 22 They have their own budget woes within that 23 system. There is a pull. The community actually 24 gets penalized the longer the individual stays in 25 the hospital, and so the community is trying to KING COURT REPORTING SERVICE 78 1 pull the person out, the hospital is trying to 2 keep them in for various reasons. 3 They, too, have become more punitive over 4 time. More desirous, I think, wanting to appear 5 credible before the Judges and the District 6 Attorneys. And so rather than saying well we have 7 a program in the community, let's try it, the 8 Judge says no, no, no. We need to stay. And the 9 State picks up that tab. 10 If they were out, there are other ways to 11 get them off the State and off of the county 12 budget, but sometimes that argument is -- 13 JUDGE ADAMS: One way to raise adult 14 protective services, monitoring them, county 15 guardians and administrators. 16 MS. BLUM: Sometimes, yes, but there is 17 other -- most of the populations can get SSI 18 grants. And that's another mystery to me, is why 19 it's not automatic and somebody who is in jail or 20 mentally ill is automatic. 21 JUDGE ADAMS: County administrators and 22 county auditors ought to be getting jail lists, 23 along with the Judges and prosecutors. 24 MS. HOLMEN: They can't get it while they're 25 in jail. KING COURT REPORTING SERVICE 79 1 MS. BLUM: They apply for it when they're in 2 jail. 3 JUDGE ADAMS: You get them out of jail, and 4 you're talking about the State being irresponsible 5 about how they're handling the leadership that the 6 State got in the Federal Government was the most 7 awful thing, the most damaging thing in the mental 8 health system because we had people set up all 9 over the State that were being monitored and money 10 handled by the guardians and administrators and 11 protective services monitoring their medication 12 and, you know, their use of their food stamps, and 13 then Reagan came into office and abolished all SSI 14 disability. Abolished all SSI payments, mental 15 health, and it was the most tragic thing that I 16 have ever seen, and it set an example, perhaps, 17 for the State. 18 If the State has been irresponsible, that 19 was the example that was set by the Federal 20 Government back in the 1980s, and we have had to 21 appeal to get better rules down to the Fifth 22 Circuit, and it was just a mess, and we spent more 23 rehabbing people that had attempted suicide and 24 things like that than all that we saved, or all 25 that Reagan saved on the SSI disability payments. KING COURT REPORTING SERVICE 80 1 MS. BLUM: Well, one of the other things 2 that came out of that is the -- states the option 3 of choosing one of two ways to having funded 4 Medicare reimbursement to people in the community. 5 And so if a person have to come to the 6 clinic for the clinic to get reimbursed, or could 7 the clinic hire somebody to go out and find them, 8 make sure that they were taking their medication? 9 And Georgia chose what was called the clinic 10 option as opposed to this other option, which is 11 called the rehab option, and so now, 20 years 12 later, Georgia has opted for the rehab option, but 13 there are so many rules and so many hurdles that, 14 again, it's almost not worth the cost to get your 15 nickel more. 16 So for people who are homeless, and 17 substance abuse issues, they can't hire case 18 managers or social workers to find them and bring 19 them in. 20 JUDGE ADAMS: You know, the county 21 governments ought to be scanning the jail lists 22 seriously with a view towards getting those people 23 out and referring them to the county guards and 24 county administrators, and in counties where you 25 don't have to appoint county administrators KING COURT REPORTING SERVICE 81 1 because they'll do it for the percentage that is 2 allowed by the probate court on guardianship. 3 MS. BLUM: Bibb County is doing actually 4 that. They have somebody that goes to jail 5 everyday and looks for people who are mentally ill 6 that he can hook up with River Edge Community 7 Service Board, which is their local community 8 mental health program. 9 In DeKalb actually we have two summer 10 students who we are working with them and they are 11 looking to compare the people who are arrested and 12 people who have been served by DeKalb County 13 Community Service Board and saying okay let's 14 match them up. 15 MS. DEVINE: Susan, you mentioned the 16 transport issue in the Juvenile Court system, and 17 I think you mentioned something that was leading 18 to that transport, but that the statistics don't 19 bear that out. Could you share that again? 20 MS. BLUM: Yeah. 1993 was the peak of 21 juvenile serious crimes which led to, in Georgia 22 as well as every other state, around '93 and '94 23 they enacted these get tough laws which, as Keller 24 referred to as the seven deadly sins, which is the 25 juvenile that automatically goes to Superior KING COURT REPORTING SERVICE 82 1 Court. 2 At the same time in that Georgia enacted 3 that law they took the designated felony statute 4 and raised it, I think, from three years to five 5 years, if I'm correct, so they increased the 6 amount of time that a juvenile convicted of one of 7 those serious illnesses in juvenile court would 8 have to serve. 9 MS. DEVINE: So in those cases it's not the 10 best interest of the child? It's whether or not 11 they had committed the crime and how much time 12 they should serve? 13 MS. BLUM: Well, I mean, if this is a 14 delinquency charge then that's what it should be. 15 That amounts to what is equivalent to charging an 16 adult with a crime, be it burglary, be it criminal 17 trespass, be it whatever. 18 MS. DEVINE: So does that account for the 19 increase in the caseload for the Juvenile Court? 20 MS. BLUM: The punishment aspect? 21 MS. DEVINE: Uh-huh. 22 MS. BLUM: I don't think so. 23 MR. JOHN: Actually, if you think about it, 24 the caseload goes down because those seven cases 25 go to Superior Court and so you remove those and KING COURT REPORTING SERVICE 83 1 then you have a lot of people want to use numbers 2 and say I want to show that juvenile crime is down 3 in Georgia, and I say well be careful because if 4 you start using post-'94 numbers, there are seven 5 offenses and the number whatever they happen to be 6 are out of the Juvenile Court and so don't make 7 that assessment without really looking at the 8 numbers carefully. 9 MR. KURTZ: Susan, on the delinquency side 10 of Juvenile Court, when the young person is 11 convicted he or she serves in a YDC? 12 MS. BLUM: Well, there are a lot of options, 13 and that is one thing that if you had a dedicated 14 attorney who was representing that child you could 15 explore all of the different placement options, 16 then they may not have to go to YDC. 17 MR. KURTZ: Where else might they go. 18 MS. BLUM: There could be group homes, there 19 could be just probation with some restricted 20 conditions. There are -- there is -- I mean, 21 there is a lot out there that a lot of people 22 don't even know about, and you have a social 23 worker and somebody like that who knows what 24 services the county or circuit has. 25 MR. KURTZ: In going from two to five, are KING COURT REPORTING SERVICE 84 1 these all discretionary sentencing, or is it 2 mandatory, or how does that work? 3 MS. BLUM: Up to. 4 MR. KURTZ: Up to? 5 MS. BLUM: Up to, yeah. 6 JUDGE STEPHENS: Is there any sense of what 7 sorts of business there is in focusing and the 8 monitoring sort of as the juvenile court thing. 9 MS. BLUM: Well, I can tell you that of the 10 seven deadly hearings, medical lapse. Almost all 11 of the others carry a minimum mandatory 10 to 12 serve without the possibility of parole until you 13 have served basically 100 percent of the sentence. 14 And so there are kids who have been in the 15 system since 1994 who got a 10-year sentence and 16 they are not scheduled to be released until 2010. 17 JUDGE STEPHENS: And the maximum amount to 18 stay is two years? 19 MS. BLUM: Five. Up to 60 months is how 20 they put it. 21 MS. DEVINE: Susan, how much are you seeing, 22 or perhaps Debra, too, related to the need for 23 language interpreters. 24 MS. BLUM: I think that's becoming 25 increasing, and I think that Eric can probably KING COURT REPORTING SERVICE 85 1 address that better because that would more than 2 likely be somebody that the Court would have to 3 have on their staff, or at least know where they 4 could reach them. 5 MR. JOHN: This is how much of an increase 6 this has happened is we are now having judges 7 converting the different court documents into 8 another language. 9 MS. DEVINE: Spanish, I would imagine. 10 MR. JOHN: Spanish primarily. 11 MS. DEVINE: I'm told at the university that 12 the Spanish language, the formal Spanish language 13 is not necessarily one which many of our newcomers 14 to the community speak and are they -- so how does 15 the Court deal with the fact that the language, 16 the dialect, the Spanish dialect might actually be 17 different from formal Spanish? 18 MR. JOHN: You've picked on a person that's 19 more well versed in that than you think because I 20 do speak Spanish, and there is an effort to try -- 21 I've seen documents, and this is something we saw 22 as we've seen documents come in. 23 I will see the same word have two different 24 Spanish words, and so I think the effort is to try 25 to stay with the common Latin American style. The KING COURT REPORTING SERVICE 86 1 Columbian Spanish seems to be the middle of the 2 road, but their dialect are incredible. You know, 3 Puerto Rican Spanish, Cuban Spanish is so 4 different. 5 MR. DUBOSE: Are there other states that 6 seem to be doing a variety that we should be 7 looking at as a model? 8 MS. BLUM: The Superior Court system. 9 MR. DUBOSE: More on the mental health 10 issues? 11 MS. DEVINE: And that do we have an office 12 of review? 13 MS. BLUM: Probably so. Florida has 14 something similar to the Mental Health Advocacy 15 Council in the sense that they have offices, they 16 have mental health specialists who serve as a 17 resource for the different members. That's really 18 the only other state that has anything that is 19 statewide. 20 There are other individual public defender 21 offices who have individual resources, but there 22 used to be a New Jersey division of a public 23 advocate, and I think it was defunded sometime 24 after Reagan took office. Those are the only 25 examples. KING COURT REPORTING SERVICE 87 1 CHAIRMAN MORGAN: I think we've got time for 2 one or two more questions or comments, and I'm 3 also going to turn it open to the group, to group 4 wide, if anybody else in the audience has any 5 questions or comments, but please direct them to 6 me so we keep some order. 7 JUDGE ADAMS: There has been no standard 8 about the YDC and the condition of those that have 9 been committed and fraud, have there? 10 MS. BLUM: No. 11 MS. DEVINE: And that's pretty standard? 12 MS. BLUM: You would think. 13 CHAIRMAN MORGAN: Does anybody else? Yes. 14 MS. HOLMEN: Are there any ABA standards in 15 the mental health? 16 MS. BLUM: There are. In 1992 there was a 17 criminal justice task force, a subcommittee for 18 mental health issues, and there are standards, but 19 I'm not sure that anybody in Georgia has read 20 them. 21 MS. HOLMEN: Mr. Chairman, I would be happy 22 to work with these two folks to get the ABA 23 standards on both, juvenile and mental health, if 24 that would be helpful. 25 CHAIRMAN MORGAN: Right. One more. Any KING COURT REPORTING SERVICE 88 1 last comment or question before the Commission 2 moves into executive session? 3 REPRESENTATIVE HOLMES: I would just like to 4 stipulate that Mr. Reagan went out of office 14 5 years ago. 6 MR. IDE: The past year only 81 or 82 7 counties passed it. It is not something that 8 every county lives with. What we have come up 9 with is the hospital system alerts us everytime 10 somebody enters their system on an insanity plea. 11 We get really bad, you know, and we still 12 get reports directly from some counties and some 13 attorneys that we use the two things combined to 14 find it possible to make sure that we have all of 15 the cases in the county court. 16 MR. KURTZ: Your guess is only a year or 17 pick -- 18 MS. BLUM: Only a year. 19 MR. KURTZ: Or pick a unit? 20 MS. BLUM: 223 people in the hospital right 21 now. Maybe two a month, three a month come in. 22 MR. KURTZ: And, by the way, I didn't hear 23 you. Maybe you did mention it, but I didn't hear 24 anything about guilty but mentally ill, but how 25 does that fall? KING COURT REPORTING SERVICE 89 1 MS. BLUM: Well, I hate to mention this 2 certain president's name again. 3 MR. KURTZ: That guy. 4 MS. BLUM: Well, when John Hinckley tried to 5 kill or assassinate President Reagan, all of these 6 states passed guilty by reason of insanity 7 statutes, including Georgia, and I would say by 8 1994 the chief psychiatrist for the Department of 9 Corrections said don't ever do it, it's a fraud. 10 And that's uniformally true across the 11 country. There are people who support them, but 12 generally speaking, people who go into the system 13 as guilty but mentally ill spend a longer time in 14 the prison system than they would have if they had 15 gone in as guilty even if they were mentally ill. 16 The only advantage is they skip one screen upon 17 entering the Department of Corrections. 18 Everybody gets a very basic screen when they 19 enter the Department of Corrections. People who 20 are found guilty by mentally ill go to Step 2, but 21 anybody can avail themselves through that system 22 which they're mentally ill or not. 23 There are lawyers who do it. In Georgia if 24 you raise the insanity plea and you lose, guilty 25 by mentally ill isn't an option. KING COURT REPORTING SERVICE 90 1 MR. KURTZ: So the problem is the charge? 2 MS. BLUM: And so it's a strategic question 3 that lawyers against these cases don't go to 4 trial, but when they do you can really open a can 5 of worms because guilty but mentally ill is 6 usually treated as a nice compromise. They will 7 get treatment in jail. 8 MR. KURTZ: So you don't track those? You 9 don't know how many there are, of course, in jail, 10 not in an institution? 11 MS. BLUM: Right. 12 MR. KURTZ: Not in a hospital? 13 MS. BLUM: Right. 14 MR. KURTZ: You don't represent them. 15 That's off your -- they're below your whatever? 16 MS. BLUM: They're out of my radar screen. 17 We don't get involved in that or whatever. The 18 issue is entirely not mine. Although I have to 19 say the Department of Corrections, well actually 20 the board of pardons and parole and the Department 21 of Human Resources has transferred on a six-month 22 program following somebody's release that is 23 available to people found guilty but mentally ill, 24 or just guilty but have mentally ill problems, but 25 they're having a small problem. KING COURT REPORTING SERVICE 91 1 MR. KURTZ: How many hospitals? 2 MS. BLUM: There are seven. There used to 3 be one GMI which served a large part in northern 4 Georgia that closed in '96, and so those people 5 got allocated to other hospitals and it really 6 changed court in particular that dealt with 7 individuals. 8 CHAIRMAN MORGAN: I see one more. 9 MS. MUSTAKEEM: Yeah, I have a question for 10 either the two of you or the other people that 11 spoke. How is the determination for indigency for 12 juveniles made? 13 I mean, we're talking about representation 14 because these individuals are indigent, but how is 15 that determined? And if you're talking about, you 16 know, appointment of counsel for the juveniles and 17 then possibly for the family, is there a conflict 18 there? Is it determined based on family income? 19 And what's that indication. 20 MS. BLUM: Everything you said you're 21 absolutely right. There are some judges that you 22 know a child comes in, a child is presumed 23 indigent, and that child gets an attorney. 24 We have had calls in situations where the 25 parents are not indigent, but they don't want to KING COURT REPORTING SERVICE 92 1 pay for AN attorney for the child, and what do you 2 do in that situation? 3 That's a real question, and I think it's 4 treated differently in any of the different court 5 systems that you might want to walk into. 6 Fulton County is such a large court system 7 that they probably don't even make inquiries in 8 the vast majority of the cases. They would just 9 appoint the child an attorney. 10 CHAIRMAN MORGAN: All right. Well, I'd like 11 to thank very much all of our speakers this 12 morning, and all of you all who are just here for 13 attending, and we are now adjourned. 14 (Hearing concluded at 11:34 a.m.) 15 16 17 18 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 93 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 15th day of November, 2002. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE