1 1 2 3 SUPREME COURT COMMISSION ON INDIGENT DEFENSE 4 5 6 7 July 26, 2002 8 9:30 a.m. 9 10 11 12 Supreme Court of Georgia 13 Judicial Conference Room 244 Washington Street 14 Atlanta, Georgia 30334 15 16 17 18 19 REPORTED BY: DIANE KING, CSR, B-1957 20 21 22 23 KING COURT REPORTING SERVICE 125 COLONADE AVENUE, SUITE 1-B 24 ATLANTA, GEORGIA 30331 (404) 344-6225 25 2 1 MEMBERS PRESENT: 2 MR. CHARLES R. MORGAN, Chairperson PROFESSOR PAUL KURTZ 3 JUDGE C. ANDREW FULLER MS. PHYLLIS HOLMEN 4 MR. JAMES F. GRUBIAK JUDGE A. HARRIS ADAMS 5 JUDGE STANLEY F. BIRCH MS. FLORA DEVINE 6 MR. ROBERT E. KELLER MR. C. WILSON DUBOSE 7 MR. CHARLES T. LESTER, JR. MR. HOWARD O. HUNTER 8 MS. AASIA MUSTAKEEM JUDGE LAWTON STEPHENS 9 MR. WILLIAM IDE MR. CHUCK CLAY 10 GUESTS PRESENT: 11 12 CHIEF JUSTICE NORMAN S. FLETCHER MS. CYNTHIA CLANTON, AOC 13 MS. MARTHA EZZARD, ATLANTA JOURNAL Constitution MR. BILL RANKIN, ATLANTA JOURNAL Constitution 14 MS. JOAN NAUS, GEORGIA INDIGENT DEFENSE COUNCIL MS. SARA SMITH, GEORGIA INDIGENT DEFENSE COUNCIL, 15 MS. KENDALL BUTTERWORTH, BELLSOUTH MS. JULIE COOK, BELLSOUTH 16 MR. JIM THOMPSON, BELLSOUTH MS. SARA TOTONCHI, GEORGIANS FOR EQUAL JUSTICE 17 MS. EMILY KOPP, GEORGIA PUBLIC RADIO MR. JOE BURFORD, PROSECUTING ATTORNEYS' COUNCIL 18 MS. LYNN VOELKER, PROSECUTING ATTORNEYS' COUNCIL MR. ROBERT SPANGENBERG, THE SPANGENBERG GROUP 19 MS. MAREA BEEMAN, THE SPANGENBERG GROUP MR. MARK MIDDLETON, State Bar OF GEORGIA 20 MR. TOM BOLLER, State Bar OF GEORGIA MS. LEILA TAAFE, GDDK 21 MR. PAUL H. KEHR, FULTON COUNTY CONFLICT DEFENDER MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN 22 RIGHTS 23 24 25 KING COURT REPORTING SERVICE 3 1 PRESENTATIONS: 2 ANALYSIS OF ALABAMA V. SHELTON AND ITS IMPACT ON 3 INDIGENT DEFENSE 4 MR. CLARK D. CUNNINGHAM, W. LEE BURGE PROFESSOR OF LAW AND ETHICS, GEORGIA STATE UNIVERSITY COLLEGE 5 OF LAW 6 RICHARD A. MALONE, EXECUTIVE DIRECTOR, PROSECUTING ATTORNEYS' COUNCIL OF GEORGIA . 7 MICHAEL B. SHAPIRO, EXECUTIVE DIRECTOR, GEORGIA 8 INDIGENT DEFENSE COUNCIL 9 GENERAL COMMENTS ON INDIGENT DEFENSE 10 HON. J. CARLISLE OVERSTREET, SUPERIOR COURT JUDGE, 11 AUGUSTA JUDICIAL CIRCUIT; PRESIDENT OF THE COUNCIL OF SUPERIOR COURT JUDGES 12 13 14 15 16 17 18 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 3 CHAIRMAN MORGAN: Well, good morning, 4 everyone. I'm very pleased to see such a good 5 turnout, particularly in the middle of the summer 6 for this meeting of the Commission. 7 I would like to, first of all, thank the 8 Chief Justice for being here with us this morning. 9 He would like to say a few words, but before we do 10 that I'd like to follow our tradition of going 11 around and introducing ourselves, and we'll start 12 with the Commission. I'm Charles Morgan, the 13 chairman, and on my left is -- 14 MR. KURTZ: Oh, I'm Paul Kurtz and I'm the 15 reporter for the Commission. I'm from the 16 University of Georgia Law School. 17 JUDGE ADAMS: Harris Adams, Judge in Cobb 18 County. 19 MR. CLAY: Chuck Clay, a lawyer in Marietta, 20 Cobb County. 21 JUDGE STEPHENS: Lawton Stephens, a Judge 22 from Athens. 23 MR. KELLER: Bob Keller, the District 24 Attorney from Clayton County, and if you read the 25 Atlanta Constitution this morning I am not the KING COURT REPORTING SERVICE 5 1 Solicitor. I have nothing to do with the 2 Solicitor. 3 MR. KURTZ: We heard that you're the 4 Solicitor. 5 MR. KELLER: But he is my friend -- he was 6 my friend. 7 MR. CLAY: He is your friend. 8 JUDGE FULLER: I'm Andy Fuller. I'm a Judge 9 in Hall County and Dawson County. 10 MR. HUNTER: I'm Woody Hunter from Emory 11 University. 12 JUDGE BIRCH: I'm Stan Birch, Judge in 13 Atlanta. 14 MR. MALONE: Rick Malone. 15 MR. CUNNINGHAM: I'm Clark Cunningham. I am 16 a professor of law and ethics at Georgia State 17 University. 18 MR. SHAPIRO: I'm Mike Shapiro, executive 19 director of the Georgia Indigent Defense Council. 20 MR. GRUBIAK: I am James Grubiak. I'm 21 sitting in for Jerry Griffin. 22 MS. DEVINE: I'm Flora Devine. I'm chair of 23 the Georgia Indigent Defense Council presently, 24 and I'm also an attorney in Cobb County 25 MS. HOLMEN: I'm Phyllis Holmen, director of KING COURT REPORTING SERVICE 6 1 Georgia Legal Services. 2 MS. MUSTAKEEM: And I'm Aasia Mustakeem, an 3 attorney at Paul, Goldstein, Frazer and Murphy. 4 MR. LESTER: I'm Charlie Lester, an attorney 5 at Sutherland, Asbill and Brennan. 6 MS. EZZARD: I'm Martha Ezzard with the AJC. 7 MR. ASKEW: Hulett Askew, Office of Bar 8 Admissions. 9 MS. NALLS: Joan Nalls, Indigent Defense 10 Council. 11 MS. CYNTHIA CLANTON: I'm Cynthia Clanton 12 with the Administrative Office of the Courts. 13 MS. SMITH: Sarah Smith, Indigent Defense 14 Council. 15 MS. BUTTERWORTH: I'm Kendall Butterworth 16 with BellSouth. 17 MS. COOK: I'm Julie Cook with BellSouth. 18 MS. CHARTOFF: Marion Chartoff, Southern 19 Center for Human Rights. 20 MS. TOTONCHI: Sarah Totonchi with Georgians 21 for Equal Justice. 22 MR. RANKIN: Bill Rankin with the Atlanta 23 Journal. 24 MS. KOPP: I'm Emily Kopp, Georgia Public 25 Radio. KING COURT REPORTING SERVICE 7 1 MR. BURFORD: Joe Burford, Prosecuting 2 Attorneys' Council. 3 MS. VOELKER: Lynne Voelker. I'm an intern 4 with the Prosecuting Attorneys' Council. 5 MR. SPANGENBERG: Bob Spangenberg with the 6 Spangenberg Group. 7 MS. BEEMAN: Marea Beeman with the 8 Spangenberg Group. 9 JUDGE OVERSTREET: I'm J. Carlisle 10 Overstreet, president of the Council of Superior 11 Court Judges. 12 MR. MIDDLETON: I'm Mark Middleton with the 13 State Bar. 14 MR. BOLLER: Tom Boller with the State Bar. 15 MR. KEHR: Paul Kehr, director of Fulton 16 County Conflict Defender's office. 17 MR. BRIGHT: Steve Bright from Atlanta. 18 CHAIRMAN MORGAN: Did we get everyone? 19 MR. KENDRICK: Michael Kendrick, 20 Administrative Office of the Courts. 21 CHAIRMAN MORGAN: Well, again, thank you 22 everyone for being here, and at this point in time 23 I'd like to ask the Chief if he'd like to make a 24 comment. 25 CHIEF JUSTICE FLETCHER: Just a few words KING COURT REPORTING SERVICE 8 1 here. I know when all of you signed on to this 2 Commission you didn't think it would be -- it 3 would take you quite this long, or it would be 4 such a broad, difficult job, but I do appreciate 5 your patience and your perseverance. 6 I don't think we anticipated Alabama v. 7 Shelton at the time, but I think all of us want -- 8 we don't want this Commission or this report to 9 turn out like so many Commissions' reports. You 10 know, sounds good, put it on the shelf and the 11 dust gathers after that. 12 I think all of us know that we've got to do 13 something meaningful. The results of what you do, 14 and then what we can get the General Assembly to 15 do must be a meaningful change in the delivery of 16 indigent defense. 17 And so I thank you for your patience. I 18 thank you for being willing to go longer than we 19 originally planned on this, and I will assure you 20 that if the electorate allows it I will be here 21 long enough to see that this meaningful change is 22 forthcoming in Georgia and I will stand with you 23 and carry it through whatever good plans and good 24 recommendations that you present to me and present 25 to the General Assembly. KING COURT REPORTING SERVICE 9 1 And so, again, thank you so much for what 2 you're doing and I'm behind you, I can assure you 3 the entire Supreme Court is behind you on this, 4 and we thank you for addressing this most 5 difficult task. 6 (Applause.) 7 CHAIRMAN MORGAN: Thank you very much, 8 Mr. Chief Justice. I know I speak for all of the 9 members on the Commission in saying that we very 10 much appreciate your support and the support of 11 the full court, and I would just like to take a 12 moment to also add my thanks to all of the members 13 of the Commission for their long service in doing 14 this and, hopefully, we'll be seeing the end in 15 sight, but we really appreciate everybody's 16 dedication to this important task. 17 And with that, I will ask our reporter to 18 kick us off this morning. 19 MR. KURTZ: Okay. As you can see by your 20 agenda, we've got some presentations about Alabama 21 v. Shelton. I'd like to introduce the speakers, 22 all three, before they begin. I assume that they 23 will speak in the order in which I've listed in 24 the agenda. I think that makes sense. And then 25 when they're finished Lawton will introduce Judge KING COURT REPORTING SERVICE 10 1 Overstreet. 2 Our first speaker, alphabetically and in 3 order, is Clark Cunningham, who is the W. Lee 4 Burge Professor of Law and Ethics at Georgia State 5 University College of Law. Newly appointed as of 6 this summer. 7 He earned his Bachelor's degree at 8 Dartmouth. He went to law school at the 9 University of Chicago and Wayne State where he 10 earned his degree. He practiced in Detroit as a 11 legal aid lawyer as well as a private 12 practitioner. He spent two years on the faculty 13 at the University of Michigan law school and 12 14 years at Washington University in St. Louis, where 15 he at various points did both, prosecutorial and 16 defense work as director of the criminal justice 17 clinic at Washington University. 18 And, indeed, not only did he do prosecution 19 and defense, but his area of involvement was 20 directly in the area of petty offenses. The area 21 that is addressed in Alabama vs. Shelton. 22 And so unlike some law professors, he knows 23 what he's talking about and has actually been out 24 there representing both, the State and the 25 Defendant in these kinds of activities. KING COURT REPORTING SERVICE 11 1 And I know of his talent because we at the 2 University of Georgia several years ago tried to 3 entice him from Washington University to come to 4 Athens and, apparently, he preferred St. Louis to 5 Athens, and now -- yeah, can you believe that? 6 And now Atlanta to St. Louis, and so he will be 7 our first speaker. 8 Our second speaker is Rick Malone, who 9 doesn't like to admit this to a lot of people, but 10 I squashed out of him that he's actually a native 11 of Atlanta. He likes to tell people that he's 12 from South Georgia, but he actually is from 13 Atlanta and did his Bachelor's work in Athens at 14 the University of Georgia. 15 He got his J.D. in 1975 at John Marshall Law 16 School. Immediately became an assistant District 17 Attorney in the Middle Circuit, Vidalia, 18 Swainsboro, and then in 1982 he became District 19 Attorney of the Middle District of the Middle 20 Circuit in that area and served for 19 years with 21 distinction as a District Attorney. 22 And most recently and currently as of 2001 23 he is executive director of the Prosecuting 24 Attorneys' Council of Georgia. 25 And the final speaker this morning is KING COURT REPORTING SERVICE 12 1 Michael Shapiro, one of those Yankees. 2 MR. SHAPIRO: Damn Yankees. I can't stand 3 them. 4 MR. KURTZ: I can't stand those Yankees. 5 Grew up about 60 miles from where I grew up. He's 6 from Great Neck, Long Island, New York. Did his 7 Bachelor's and J.D. work here in Atlanta at some 8 school that I'm not familiar with. Law school E. 9 MR. SHAPIRO: Those are my grades. 10 MR. KURTZ: After graduation went into 11 private practice, and since 1996 has been the 12 executive director of the Georgia Indigent Defense 13 Council, and so I'll turn it over to the panel. 14 MR. CUNNINGHAM: Thank you very much, Paul. 15 Chief Justice Fletcher and members of the 16 Commission, it's a real pleasure and privilege to 17 be a part of today's discussion. This has been a 18 great opportunity for me to get a crash course in 19 Georgia court procedure, but since I'm taking the 20 attorneys exam next Tuesday the Georgia Bar has 21 also been helpful. 22 It's also been a great opportunity to get to 23 know a lot of people very quickly, and I want to 24 acknowledge how much help I have had from a lot of 25 people starting with Mr. Malone and Mr. Shapiro. KING COURT REPORTING SERVICE 13 1 Both of you have spent hours on the phone with me 2 getting me up to speed on the issues as they 3 effect Georgia. 4 But I would also like to thank Judge William 5 Coolidge. He is vice president of the Council of 6 Superior Court Judges; Judge White, who is the 7 Council of State Court Judges; both Cynthia 8 Clanton and Michael Kendrick of the Administrative 9 Office of the Courts; Joseph Drolet, who is the 10 Solicitor for the City Court of Atlanta; George 11 Snyder, who is Public Defender for DeKalb County, 12 are extremely generous with their time in helping 13 me assess sort of the impact, potential impact, of 14 Alabama vs. Shelton here in Georgia. 15 And my understanding is that the Commission 16 would like to spend about 90 minutes on this 17 topic, and at least Mr. Shapiro, Mr. Malone, and I 18 try to talk about ways that we could best utilize 19 that time. 20 It's my understanding that the Commission 21 would like a fair amount of time spent going 22 through the basic background of the case law 23 leading up to Alabama vs. Shelton, talk about the 24 case in detail, and it seems kind of like a law 25 professor's job. KING COURT REPORTING SERVICE 14 1 And so I think we've agreed tentatively that 2 I would probably take about 30 to 40 minutes at 3 the beginning of my presentation, and then maybe 4 10 minutes for Mr. Malone, and 10 minutes for 5 Mr. Shapiro, leaving some time for discussion, but 6 at any point if I'm not being clear interrupt me, 7 which is likely to happen somewhere or another. 8 I would like to begin, actually, with a 9 story or an analogy. Not about indigent defense, 10 but about indigent health care, okay? And so here 11 is the imaginary story. 12 Imagine a series of newspaper articles about 13 brain surgery for people on Medicaid. And it's 14 disclosed in this series of newspaper articles 15 that operation after operation for indigent 16 patients have been conducted with doctors who have 17 no prior surgery experience or training, never had 18 a scalpel in their hand before. 19 Maybe there is a particular gruesome story 20 about a brain surgery conducted by a doctor who 21 was drunk at the time and that would prompt a, you 22 know, something of an outcry or review of surgery 23 for indigent patients. 24 I offer that as kind of an analogy as at 25 least the national press coverage around indigent KING COURT REPORTING SERVICE 15 1 defense, which is focused on death penalty cases. 2 And part of the result of this national attention 3 and pending federal legislation right now is to 4 actually increase resources for indigent defense 5 for death penalty cases, and I think that's a very 6 serious problem, and the attention it is getting 7 is well deserved. 8 But returning to my story. Imagine that in 9 this flurry of attention over brain surgery 10 problems of indigent people that no one happens to 11 notice that poor children aren't getting any 12 immunizations. 13 Well, the thing about that is that that is 14 probably an equally if not a more serious tragic 15 story than the horrible brain surgeries. Both are 16 terrible, but in addition we all know that 17 childhood immunizations are an incredibly 18 cost-effective way of improving the health of poor 19 people. 20 And if we didn't immunize poor children not 21 only are we effecting them, but we are effecting 22 our whole population because we have a major 23 health crisis down the road effecting not only 24 indigent people, but everybody. 25 I tell you this story because it seems to me KING COURT REPORTING SERVICE 16 1 that the criminal justice system is sort of at the 2 lower end of the spectrum. Ordinance violation, 3 traffic court, misdemeanors, non-violent felonies, 4 first time offenders is, in a system that is often 5 under resourced generally, without debate, is part 6 of the criminal justice system, and yet I think it 7 is exactly there that there are the most 8 opportunities to do good. 9 And I want to suggest that our discussion of 10 Alabama vs. Shelton today be taken as a kind of 11 opportunity to look anew at that area for the 12 criminal justice system and not as a problem. 13 There was a classic book written back in 14 1979 by a law professor named Feely. The best 15 part of the book is its title, "The Process is the 16 the Punishment," and he studied one particular 17 court. It happened to be in New Haven, but it's 18 just typical across the country where the story is 19 not very different from what we read in the 20 newspapers here in Georgia. 21 Huge numbers of people spending time in jail 22 prior to a disposition of their case and they're 23 basically doing their time beforehand. It is the 24 process which punishes them, not a decision of the 25 court, not a guilty plea. KING COURT REPORTING SERVICE 17 1 Guilt or innocence is irrelevant in this 2 system and that is, frankly, the story across this 3 country. It's not a peculiar problem, not by any 4 means unique to Georgia. 5 There are direct costs to this system. 6 Obviously, costs is days in jail, but there are 7 indirect costs of the system and the process is 8 the punishment. We throw people into poverty, we 9 disrupt families, and I think there is a 10 significant impact on safety. 11 This group of people at the lower end of the 12 spectrum is probably the group of people where the 13 criminal justice system has the best chance to 14 change the direction of their lives where 15 rehabilitation is most likely. 16 The crimes they are accused of are 17 frequently the crimes that actually most affect 18 the lives of our community when people think about 19 law enforcement, burglary, or car theft, or 20 shoplifting, or vandalism. 21 And it's not just a lost opportunity in 22 those respects, but my experience is people caught 23 in the lower end of the spectrum often the first 24 time they are arrested come out of this system 25 with better focus, and that has a very high price KING COURT REPORTING SERVICE 18 1 itself. 2 And so what I'd like to encourage the 3 Commission to do as we open the discussion today 4 of Alabama vs. Shelton is to think of it as an 5 opportunity to think outside the box. To re-frame 6 the way both the policy makers and the public look 7 at indigent defense. 8 And I do want to compliment Georgia at this 9 point because I'm very impressed, having practiced 10 in several other states where nothing like this 11 took place. Where you have two chief justices in 12 a row making this a high priority, a high-powered 13 Commission like this, terrific attention in the 14 media, to the problem of indigent defense. 15 And so I think this is a great opportunity 16 because there is this degree of talent sitting 17 around this table and across the state wanting to 18 do something about improving the situation. 19 What I suggest maybe to think outside the 20 box. It seems to me that the problem of funding 21 indigent defense is stuck on a basic kind of 22 paradox. 23 It seems to me that for the average citizen 24 there is a natural tendency to think of indigent 25 defense as, at best, a necessary evil, all right? KING COURT REPORTING SERVICE 19 1 I think the average person will say well at a time 2 when demand for public services seem to exceed 3 available resources, here is something where the 4 only beneficiary for people is to do the crimes, 5 and with scarce public resources why put more 6 money for that group of people rather than some 7 other needy group of people. 8 Even worse, I think the average citizen 9 probably thinks that if you spend more money on 10 indigent defense it's going to make my community 11 less safe because that money is going to put more 12 dangerous criminals back on the street. 13 And so I think the natural tendency of the 14 debate is for people at best to kind of grit their 15 teeth and say well we've got to do it because of 16 some sort of abstract idea in the Constitution, 17 and then in the case of Alabama vs. Shelton board 18 members of the Supreme Court don't agree. 19 That's not a real promising setting for 20 public debate at this point. I'm obviously 21 preaching to the choir. I'm not telling you 22 anything that you don't know, but I encourage this 23 Commission to lead the way in exploring a very 24 different way to think about implementing Alabama 25 vs. Shelton and about indigent defense generally. KING COURT REPORTING SERVICE 20 1 What if, what if providing more lawyers, 2 lawyers to more people accused of petty offenses 3 actually ended up saving taxpayer dollars? What 4 if that was possible? What if providing lawyers 5 to more people accused of petty offenses actually 6 make our communities a better place to live? 7 If we put those possibilities on the table 8 for serious investigation, then instead of talking 9 about what's the minimum necessary to comply with 10 this new Supreme Court decision, which is the 11 natural tendency for this discussion to take, and 12 to sort of think of oh my gosh, we were already 13 having to spend more money on indigent defense 14 before this case came down, now there is this 15 whole another huge batch of cases that we have to 16 spend money on. 17 Instead, think about what it takes to make 18 this part of the criminal justice system actually 19 work for everybody effected. And so I'm going to, 20 time permitting, I'm going to talk about that in 21 the second half of my allotted time, but before 22 that it's my understanding that the Commission 23 would appreciate some sort of background to the 24 decision in Alabama vs. Shelton. Once again, 25 please stop me at any point. KING COURT REPORTING SERVICE 21 1 For the non-lawyers on the Commission and in 2 the room, I want to make a brief explanation. I 3 apologize for stating the obvious for the lawyers, 4 but I think people may feel that the Supreme Court 5 has been inconsistent or at least ambiguous about 6 its signal that has been sent in the area of 7 indigent defense, and I think that it helps to 8 realize that courts, including the Supreme Court, 9 only have the power to decide the specific case 10 before them. 11 So when the Supreme Court announces that 12 there is a constitutional right in a particular 13 situation, that usually does not mean that the 14 right isn't actually limited to that situation. 15 Not that the right is limited, only that the 16 decision is limited to that situation. 17 So what we have as we go through the cases 18 leading up to Alabama vs. Shelton are decisions 19 that are limited to the particular facts presented 20 to the Court, but what happens if you pull out of 21 context what the Court said in different cases 22 that they see a very good system. And so I think 23 it's helpful to keep that in mind as I kind of go 24 over the system. 25 We start with the Sixth Amendment of the KING COURT REPORTING SERVICE 22 1 U.S. Constitution which says that in all criminal 2 prosecutions the accused shall enjoy the rights, a 3 long list of rights, including the right to have 4 assistance of counsel for his defense. 5 As far back as at least since 1938 it was 6 clear that the Sixth Amendment required in Federal 7 Court a free lawyer for a Defendant who was not 8 able to afford one. The real question had to do 9 with whether or not that right was exactly the 10 same in State Court as it was in Federal Court, 11 and that question was finally resolved in 1963 12 with the very famous Gideon vs. Wainwright case. 13 Mr. Gideon was charged with breaking and 14 entering a pool room with an attempt to commit a 15 misdemeanor, and that was a felony according to 16 the law. He asked for a free lawyer, which was 17 denied, because Florida only provided free lawyers 18 to capital cases at that time. 19 He conducted his own trial, it was a jury 20 trial, and he was sentenced to five years. And 21 then he went up to the Supreme Court and the 22 Supreme Court, really the only question they had 23 to decide was did the Sixth Amendment apply to the 24 States exactly as it applied to the Federal 25 Courts, and they decided that it did. KING COURT REPORTING SERVICE 23 1 The decision is actually silent as to what 2 kind of criminal case the right to free counsel 3 applies to. As it happened, Mr. Gideon is charged 4 with a felony. A felony really in the defense 5 category, if you think about it. 6 Now, fast forward to 1972, Argersinger vs. 7 Hamlin, also a case in Florida. Argersinger was 8 charged with carrying a concealed weapon that was, 9 under Florida law, a misdemeanor punishable up to 10 six months in jail, up to $1,000 fine. He was 11 convicted after trial in front of a Judge and not 12 a jury, and he was sentenced to 90 days in jail. 13 The Florida Supreme Court drew the line 14 between what it called petty offenses and 15 non-petty offense in the case. They said, well 16 you get a lawyer in a non-petty offense defined as 17 anything punishable by more than six months in 18 prison. 19 That decision was reversed by the Supreme 20 Court, and the Court said it did not need to 21 consider the right to counsel where loss of 22 liberty is not involved because here the 23 petitioner was, in fact, sentenced to jail. 24 And they went on to say hold, therefore, the 25 absence of no intelligent waiver, no person may be KING COURT REPORTING SERVICE 24 1 in prison for any offense, whether classified as 2 petty, misdemeanor, or felony unless he was 3 represented by counsel at his trial. And so the 4 classification of the crime becomes irrelevant for 5 Sixth Amendment purposes. The bright line is 6 imprisonment. 7 In 1979, Scott vs. Illinois, an Illinois 8 case, Scott was charged with shoplifting 9 merchandise worth less than $150, possible penalty 10 of one year in jail and $500. He was convicted 11 after trial before a Judge, and he was just fined. 12 He was fined $50. 13 The case went up. He argued because the 14 crime for which I was charged could have carried a 15 sentence of imprisonment, I should have been 16 entitled to a lawyer. That was rejected by the 17 Supreme Court. 18 The Supreme Court said the Sixth Amendment 19 requires only that no indigent criminal Defendant 20 be sentenced to a term of imprisonment unless the 21 State has afforded him the right to assistance of 22 appointed counsel in his defense. 23 That sentence would also entirely accurately 24 describe the case this year, Alabama vs. Shelton. 25 And so that sentence actually describes the KING COURT REPORTING SERVICE 25 1 holding that we have this year, but the facts of 2 Scott were limited to someone who wasn't sentenced 3 to imprisonment, he just got a fine. 4 And so what happened after Scott is there 5 was some confusion about the fact situation which 6 developed in Alabama vs. Shelton. Someone who is 7 charged with a crime that could be punished with 8 imprisonment, is sentenced to a term of 9 imprisonment, unlike Scott, but whose sentence is 10 suspended and they're put on probation and so 11 they're not actually in prison, unlike 12 Mr. Argersinger who is actually in prison. And so 13 that's the situation that went up to the Court in 14 Alabama vs. Shelton. 15 I mailed to the members of the Commission a 16 summary of what I'm now going to say about Alabama 17 vs. Shelton and its implementation, along with 18 copies of the case and some of the other materials 19 that I referred to, and I'll pass them around. If 20 you don't have it with you, then you're welcomed 21 to it. 22 And I also have some additional copies of my 23 summary, some of which if there are other people 24 who would like copies who don't have it. Okay. 25 This case was decided May 20 of this year. It KING COURT REPORTING SERVICE 26 1 comes out of Alabama. Mr. Shelton was convicted 2 of third-degree assault. 3 It's not disclosed in the decision that I 4 read in the media, but what actually happened is 5 there was a traffic accident, they got into a fist 6 fight, I don't know, with the other car or what, 7 with the other driver or what. Perhaps someone 8 else in the car telling him he should have done a 9 better job driving, I don't know. But, in any 10 event, that was a third-degree assault, a classic 11 misdemeanor. 12 A bench trial where he represented himself, 13 trial before a Judge. The Judge imposed a 30-day 14 jail sentence, which was immediately suspended, 15 and he was put on unsupervised probation for two 16 years. 17 The terms of probation included payment of 18 court costs, a $500 fine, reparations of $25, not 19 clear what that is in the Court decision, and 20 restitution in the amount of $516.69. Again, it's 21 not clear from the Court decision what that 22 covered. 23 When the case reached the U.S. Supreme Court 24 -- there are actually three different positions 25 that the Court had to sort of choose between. The KING COURT REPORTING SERVICE 27 1 Alabama Supreme Court decided that under 2 Argersinger that you couldn't even impose a 3 suspended sentence of imprisonment without counsel 4 and, therefore, the suspended sentence was set 5 aside by the Alabama Supreme Court and, also, the 6 probation was set aside, but it did affirm the 7 monetary damages. 8 The State of Alabama, by the time the case 9 reached the Supreme Court, conceded part of 10 Shelton's case. They conceded that the State 11 could not actually imprison Mr. Shelton for 12 probation violation without providing counsel at 13 the original case; however, the State wanted to 14 reinstate the probation even though there was no 15 suspended sentence of imprisonment attached to it. 16 The third position, a little unusual, was 17 actually invited by the Supreme Court. The 18 Supreme Court wanted to have a more extreme 19 position than the State had taken, argued before, 20 and so they pointed Professor Charles Fried of the 21 Harvard Law School, the Solicitor General under 22 President Reagan, to argue the more extreme 23 position that you could actually go ahead and 24 imprison Mr. Shelton if he violated his probation 25 as long as you provided counsel at that point, at KING COURT REPORTING SERVICE 28 1 the probation revocation hearing, even though the 2 underlying conviction was an uncounseled trial. 3 MR. KURTZ: Clark, middle position, the 4 position that the State of Alabama took. They 5 conceded that the second sentence had to 6 evaporate, but they defended the existence of 7 probation. What was going to be the hook on the 8 probation? 9 MR. CUNNINGHAM: Well, that's why they lost. 10 MR. KURTZ: It's like double secret 11 probation and animal house, is that it? 12 MR. CUNNINGHAM: That's the problem. What 13 happens to that, if you violate that probation and 14 what the Attorney General of Alabama argued was 15 that you could punish Mr. Shelton for contempt of 16 court for violating probationary laws, and then 17 you can have a contempt hearing and provide 18 counsel, and under the Alabama statute you could 19 put somebody in jail for up to five days for 20 contempt. 21 MR. KURTZ: As opposed to the underlying 22 aggravated assault. 23 MR. CUNNINGHAM: Versus re-litigating the 24 underlying offense because they wanted somehow to 25 save the idea of probation. But there is at least KING COURT REPORTING SERVICE 29 1 two problems. One, of course, which I'm sure 2 we're going to talk about at length this morning, 3 is if you only post a bond and there is no 4 suspended sentence, and you don't collect a fine 5 on the spot, and the person doesn't pay, what does 6 the court do? Traditionally, now, you've got the 7 hammer of the suspended sentence of imprisonment 8 which comes down. And so Alabama rather 9 ingeniously said we can still get that hammer 10 through contempt power. 11 MR. KURTZ: And, of course, if that had been 12 accepted then all of a sudden the sentence for 13 contempt would have been stretched out. 14 MR. CUNNINGHAM: Well, who knows. What 15 Justice Ginsburg said for five or more majority, 16 well this is very creative but there is nothing in 17 Alabama law that says that you have such things, 18 it wasn't considered by the Alabama Supreme Court, 19 and so we're not going to accept that position 20 here; that this is surely a hypothetical idea, 21 given that Alabama has no provision for accepting 22 a term of probation that is not tied to an 23 underlying post conviction sentence. And, 24 apparently, in oral argument they asked the 25 Attorney General do you know of any other state KING COURT REPORTING SERVICE 30 1 that has such a thing? And he said no, I don't. 2 But I suppose, theoretically, out there if 3 someone wanted to try something like this, it 4 seems to me that the Court has given a very broad 5 hint that it's not going to pass muster, but that 6 was their position. 7 The position that Professor Fried argued and 8 it was picked up somewhat by the decenters was to 9 basically re-litigate the criminal case if you 10 wanted to suspend probation. 11 Justice Ginsburg for the Court rejected the 12 idea that you could imprison Mr. Shelton just 13 because he violated the terms of probation giving 14 him a probation hearing because the only provision 15 for the probation hearing would be, for example, 16 did he pay restitution, not did he actually commit 17 an assault. 18 But Justice Scalia sort of speculated well 19 what if, in the presumably rare case where you 20 actually bring Mr. Shelton in for not paying 21 restitution, or doing something else for violating 22 probation, then the State can, in effect, 23 re-litigate the underlying case. 24 Once again, the majority said well that's a 25 purely hypothetical idea. Alabama doesn't have KING COURT REPORTING SERVICE 31 1 such a system. Nobody has such a system. We 2 doubt that that would be a good system because, 3 you know, if there has already been a finding of 4 guilt and, of course, particularly there has been 5 guilt, which is not this case, how do you litigate 6 that six months later? 7 And so that was also rejected, and the 8 holding, which I have on page -- let me see my 9 outline, I guess. Page 3 I've got it highlighted. 10 "We confine our review of the ruling of the 11 Alabama Supreme Court," and then he quoted the 12 Supreme Court, "A Defendant who receives a 13 suspended or probated sentence to imprisonment has 14 a constitutional right to counsel." And then as 15 to what the Alabama Supreme Court said, "We find 16 no infirmity in this holding." That's the kind of 17 thing that the Supreme Court does, is it makes a 18 fairly narrow decision. 19 As I said, the sentence that they used back 20 in the earlier case actually would have described 21 this as well. 22 Now, the last thing that I want to mention 23 about the decision, itself, is that Justice 24 Ginsburg does spend some time talking about a 25 non-hypothetical way to somehow achieve the KING COURT REPORTING SERVICE 32 1 probation system without providing right to 2 counsel, and it was a brief filed by the National 3 Association of Criminal Defense Lawyers talking 4 about what she refers to as pretrial probation, 5 but I think it is more commonly referred to as 6 pretrial diversion, and I believe that that is 7 what is referred to in this and the quoted 8 language is at the bottom of Page 3, top of Page 9 4. 10 "Under such an arrangement the prosecutor 11 and the Defendant agree to the Defendant's 12 participation in a pretrial rehabilitation program 13 which includes conditions of post-trial 14 probation." 15 And so it could be restitution, it could be 16 community service, it could be substance abuse 17 counseling, it could be drunk school, you know. 18 "The adjudication of guilt and imposition of 19 sentence for the underlying offense then occurs 20 only if and when the Defendant breaches those 21 conditions," I'll just add. 22 And so, basically, what happens is the case 23 is pulled off the trial docket during the term of 24 the pretrial probation, and there is usually an 25 exercise of prosecutorial discretion rather than a KING COURT REPORTING SERVICE 33 1 judicial decision, though that may be something 2 that Mr. Malone and I talk about. We may want to 3 address that in the Georgia situation. 4 And then if during that period of time, at 5 the end of that time if the Commission is 6 satisfied the case is dismissed, or in some cases 7 never brought, which is often the way prosecutors 8 do it, which means there is no -- unlike the 9 Shelton situation -- there is no record of 10 conviction. The person is still legally innocent. 11 This system reserves the appointed counsel 12 requirement for the small percentage of cases in 13 which incarceration is necessary, quoting 14 Professor Fried, "Thus allowing a State to 15 supervise the course of rehabilitation without 16 providing a lawyer every time it wishes to pursue 17 such a course." 18 The next part of my outline on Page 4 talks 19 about the effect of Alabama vs. Shelton on Georgia 20 court proceedings, and as I look at the schedule I 21 think that I'll very briefly summarize that, and I 22 suspect both Mr. Shapiro and Mr. Malone are 23 actually more competent than I am to fill that in, 24 but I particularly come off as a way of framing 25 the discussion an item that was in the July 8, KING COURT REPORTING SERVICE 34 1 2002, Atlanta Journal-Constitution by Judge Dale 2 Smith who, apparently, is Chief Magistrate Judge 3 of Stephens County. 4 I have noticed that we have been handed out 5 an article this morning which also quotes 6 Magistrate Smith as saying that he has found a 7 loophole in Alabama vs. Shelton that will save 8 Stephens County from bankruptcy. 9 And so under the Shelton decision, he said 10 in the newspaper, "There is no right to have an 11 attorney appointed for any of the pretrial 12 negotiations stage. No such right exists, or is 13 contemplated, or even suggested by the Supreme 14 Court in the Shelton case. For the great majority 15 of all criminal cases, the only change that may 16 result is the Judge, before accepting negotiated 17 plea, will advise the Defendant that he has the 18 right to counsel, and if he is unable to afford 19 one counsel can be appointed for him. The 20 Defendant, already knowing what the outcome of the 21 matter will be, will waive in nearly every case." 22 This is striking to have a person who is 23 charged with, on a day-to-day basis, implementing 24 Alabama vs. Shelton, telling us how he plans to 25 implement it and he is so confident that he's KING COURT REPORTING SERVICE 35 1 right that he wants his view published in the 2 Atlanta paper. 3 This is a very disturbing article. I just 4 think he's terribly wrong. Terribly wrong. 5 Terribly wrong in terms of law and also as a 6 policy matter. 7 As I briefly indicated, it just couldn't be 8 more clear that the right to counsel isn't limited 9 to trial. There are any number of Supreme Court 10 decisions. There are any number of Georgia 11 decisions. There are a couple of basic -- you're 12 entitled to what's called the guided kind of hand 13 of counsel at every proceeding. You're entitled 14 to counsel at every critical stage of the 15 proceeding. Your lawyer must be appointed 16 sufficiently in advance of trial, be able to 17 adequately prepare. You absolutely must have the 18 opportunity to have counsel before you enter a 19 guilty plea, all of this absent and knowing 20 intelligent waiver. 21 It just couldn't be clearer. Could not be 22 clearer, both in terms of the U.S. Supreme Court 23 and Georgia cases. There is -- actually, I 24 overlooked in my outline a case probably more on 25 point than others. Let me pass it around, White KING COURT REPORTING SERVICE 36 1 vs. Maryland. 2 I overlooked it because it was decided a 3 month after Gideon. That tells you how long this 4 has been established. In White vs. Maryland the 5 Petitioner could have been in front of Magistrate 6 Smith because he was arraigned, he was not given 7 the right to have a lawyer, and he pled guilty to 8 preliminary hearing. He then subsequently got a 9 lawyer, withdrew the guilty plea and pled not 10 guilty. 11 Where the problem is, generally, is they're 12 way up in the courts. This one did, and his 13 guilty plea was used as evidence at the trial, and 14 it took about two or three paragraphs of the 15 Supreme Court to reverse that decision because 16 there is no question that, as they say, only the 17 presence of counsel could have enabled this 18 accused to know all of the facts and all of the 19 basis, and to make the decision without any 20 necessity of showing prejudice. 21 And so that's back in 1963. I do want to 22 take the time that I have left to talk about the 23 pretrial diversion issue. 24 I have discovered both, from talking to 25 people and in research, that there is a relatively KING COURT REPORTING SERVICE 37 1 recent Georgia statute which authorizes the 2 Georgia pretrial diversion, and it's in the 3 attachment to my outline. It's 15-18-80, and it 4 seems to be fairly typical of the pretrial 5 diversion program, but it refers to the 6 prosecuting attorney. 7 And my quick education on Georgia tells me 8 that when it says prosecuting attorney it doesn't 9 mean Solicitor, it doesn't mean District Attorney, 10 it means prosecuting attorney, and so particularly 11 Judge Coolidge from Municipal Court said that he 12 had had a pretrial diversion program before the 13 statute came around, and a number of Municipal 14 Courts did, but after the statute came around, 15 because it was specifically limited to prosecuting 16 attorneys, he and his colleagues decided that they 17 possibly couldn't do pretrial diversion 18 particularly because of 15-13-35, which I have 19 also on the same page, which makes it a crime for 20 any officer of the court to demand costs from a 21 Defendant in a criminal case or fees absent a 22 trial. 23 And then the pretrial diversion statute 24 creates an exception to that because there was no 25 exception set up for Municipal Courts. They were KING COURT REPORTING SERVICE 38 1 concerned that they would be committing a crime. 2 Now, it is my understanding that there are a 3 number of Solicitors in State Courts who do have 4 pretrial diversion programs, but there are other 5 problems in implementing pretrial diversion 6 programs. 7 Pretrial diversion programs, as I understand 8 it in Georgia, are typically paid, self 9 supporting, out of the money that the Defendant 10 pays, and I think many of the courts that use them 11 employ a private probation service which makes its 12 money that way, which means that pretrial 13 diversion is typically not very available to 14 indigent people. 15 And even though Justice Ginsburg imagines a 16 pretrial diversion system without lawyers, I 17 believe in practice it is typically activated when 18 there is a lawyer involved, generally a 19 well-healed Defendant whose lawyer is able to 20 lobby with the prosecutors which may say to the 21 Judge to get pre-trial diversion for that person. 22 In the federal system, the rules of pretrial 23 diversion in the federal system, they won't do it 24 without counsel, and there is a system for 25 appointing counsel for pretrial counsel even KING COURT REPORTING SERVICE 39 1 though the Sixth Amendment doesn't require it. 2 Even more complicated is the fact that in 3 many Municipal Courts, and I gather even in some 4 State Court proceedings, there is no prosecutor 5 around in the early stages, and so since this is a 6 prosecutor run program it's difficult to get 7 pretrial in the traditional sense going unless 8 you've got a prosecutor there to talk to the 9 Defendant and his or her lawyer. 10 And so there are all of those practical 11 problems, but what I want to conclude with is to 12 come back to my earlier theme, which is that I 13 suspect that a combination of a good pretrial 14 diversion program and right to counsel would be 15 the best way of complying and implementing with 16 Alabama vs. Shelton, though it clearly goes beyond 17 what the Supreme Court is requiring the State of 18 Georgia to do. And I'll give you a couple of 19 anecdotal examples and then conclude with some 20 suggestions. 21 I mentioned, by the way, that this approach 22 which I'm discussing, it probably is a somewhat 23 different approach to the typical work of defense 24 lawyers. It would be an approach that, from the 25 very outset, looks toward rehabilitation rather KING COURT REPORTING SERVICE 40 1 than adversarial adjudication. 2 It's an approach which is now sometimes 3 called the story of justice, or community justice 4 movement. It's associated with the community 5 courts, the community prosecution. And if anybody 6 really wants to, I could talk to you at great 7 length about what I know about those things. 8 They're very interesting initiatives, but 9 you don't have to talk to me. What we have here 10 in Georgia is one of the best operations in the 11 country, the Georgia Justice Project, which is 12 down the street on Edgewood, which has been going 13 for over 10 years now, and it's privately 14 financed. 15 I've attached a couple of articles about it, 16 but they have an impressive track record with 17 reduced recidivism, and so it's mostly a good 18 model because of certain aspects of the program. 19 It's very selective about who it represents. It 20 has very small caseloads. Every lawyer has a 21 social worker on staff. It holds up a beacon, but 22 it doesn't necessarily prove the kind of cost 23 effectiveness. 24 But there are a couple of other reasonable 25 experiments that do suggest that the cost KING COURT REPORTING SERVICE 41 1 effective argument may be a good one. One is the 2 Lawyers at Bail Project of Baltimore, which was 3 mentioned in the AJC at one point. They actually 4 tried to do it in an empirical way. They looked 5 at nonviolent misdemeanor defenders in Baltimore 6 courts. 7 They took 300 cases. 175 went to the 8 Lawyers at Bail Project. 125 were a control 9 group. And they were designed so that as far as 10 they could tell those two groups were identical in 11 all relevant aspects. 12 They provided a fairly modest legal 13 assistant at the initial stage, at the bail 14 hearing. A lot of work with law students, by the 15 way. The result was that, on average, the people 16 represented by Lawyers at Bail spent two days in 17 jail and the people in the control group spent 18 nine days in jail. 19 They figured they saved, therefore, the 20 State $225 per person just in jail time. The 21 rearrest rate was low. 10 percent of the people 22 that they represented who were released in two 23 days or less or on signature, only 10 percent had 24 to be rearrested, which is the same rate as the 25 unrepresented and so, obviously, the quick concern KING COURT REPORTING SERVICE 42 1 is, are lawyers getting people out on bail who 2 won't show up in court who commit additional 3 crimes. This small experiment suggests that 4 doesn't meet the consequence. 5 The more ambitious experiment is in San 6 Francisco. It has been going on for a number of 7 years. The first part of it is called the 8 Supervised Misdemeanor Release Program, and it 9 dealt with misdemeanors who had been arrested, 10 released on their own recognizance or signature 11 bond or whatever, and then didn't show up. And so 12 a bench warrant was issued for them and then they 13 were arrested. 14 Well, those of you who are Judges would 15 certainly appreciate this. If you don't show up 16 the first time you're not going to get a lot of 17 sympathy from the Judge a second time, and so 18 these are people who then sit in jail a long time. 19 They went and took a look at that group, and 20 they had a fund that sort of identified people in 21 that group who they actually thought could be 22 released again. They looked at 2,300 cases and 23 they ended up securing the release of 844 people, 24 which if you think in terms of per person per jail 25 time it's a lot of money, it helps a lot with jail KING COURT REPORTING SERVICE 43 1 probably. 2 Eighty-five percent of those people appeared 3 at all subsequent court appearances, but that's 4 because they were well supervised during that 5 release, but in the process they discovered that a 6 lot of those 2,300 people were homeless or 7 temporarily housed, they were automatically 8 eligible because they couldn't release them to an 9 address. 10 And over 34 percent of the people in San 11 Francisco in jail were homeless or temporarily 12 housed, and so they got money for another project 13 called the Homeless Release Project. Two 14 full-time people for the City of San Francisco and 15 they worked with pretrial diversion of people who 16 were homeless. 17 And it's a more recent study, but the 18 initial pilot here shows that people in their 19 program are 50 percent less likely to be 20 subsequently rearrested. 21 So let me just conclude with some 22 suggestions to the Commission. I'd suggest that 23 perhaps your next Commission meeting focus on 24 pretrial diversion and bond decisions, which are 25 really hard to separate, and I encourage you to KING COURT REPORTING SERVICE 44 1 invite presentations from people who are familiar 2 with pretrial diversion programs sort of in a 3 hands-on way. Yes. 4 MR. CLAY: When you're talking about 5 pretrial diversion, and I was out for a minute and 6 so I apologize, what exactly do you mean by that? 7 We have in our judicial circuit, which really is 8 an alternative sentencing, you take them and put 9 them on a voluntary probation and the case is 10 actually dismissed against them. 11 MR. CUNNINGHAM: That's right. That's what 12 I'm talking about. There is a situation where 13 there is no adjudication of guilt. 14 And let me just say a word from having been 15 a defense lawyer that there is a huge difference, 16 I think, from the defense perspective between 17 representing someone in a pretrial diversion 18 program versus a post-conviction probation 19 situation. 20 Even though it might look like sort of about 21 the same thing. If your client is sitting in 22 jail, can't make bond, and the bond superior says 23 okay, time served, go out and get out today, agree 24 to probation, suspended sentence, there are two 25 practical reasons for the client to do that, and KING COURT REPORTING SERVICE 45 1 as a lawyer who has not discussed those practical 2 considerations, even though, of course, ethically 3 he wishes to plead guilty, but the price of not 4 pleading guilty is perhaps he would spend more 5 time in jail, and what I frequently see is 6 lawyers, I think, convinced they're doing the 7 ethical thing, persuading their clients to plead 8 guilty to that because it's the best thing for 9 them to do. 10 And because they believe that probation is a 11 good thing for them as well, but that very much 12 potentially corrupts the lawyer-client 13 relationship, and if you're going to make that 14 kind of recommendation you really need to know 15 what the probability of success at trial would be, 16 which would be investigation, talking to witnesses 17 and all of that sort of thing which, of course, is 18 difficult to do on the spot when your client is 19 being offered a get-out-of-jail-today card. 20 I also believe that there is a corrupt and 21 influence on our citizens who are into the system 22 if they're, in effect, being told it really 23 doesn't matter whether you're guilty or innocent. 24 You know, you can plead guilty if you want to get 25 out of jail. KING COURT REPORTING SERVICE 46 1 Now, in a pretrial diversion situation your 2 client is not being asked to plead guilty, is not 3 building a criminal defense record which has huge 4 consequences. The focus of the discussion is 5 let's look at the diversion program. Is it 6 actually something that you can live with? 7 And so your work as a lawyer is focus on the 8 rehabilitative side of things. I don't think you 9 have to have an obligation at that point to decide 10 what the merits of the case are unless your client 11 wants to know about that because they are 12 reluctant to look at a pretrial diversion program. 13 I'm a much happier lawyer in that kind of 14 situation and I also think that the lawyers find 15 it much more efficient to do. What is in these 16 cases if we put lawyers in the Alabama vs. Shelton 17 situation they are ethically obliged to work up 18 thousands of thousands of cases that they don't 19 think will ever go to trial or nobody else thinks 20 would go to trial and that does not incluce use of 21 money. Here the lawyer's time may be spent right 22 up front with making things right. 23 And so, anyway, I'm talking to you about it 24 in the abstract. Having people who have 25 first-hand experience with how these programs have KING COURT REPORTING SERVICE 47 1 worked in Georgia and also in the federal system 2 it would be extremely useful, and also provide 3 presentations about alternatives to indigent 4 defense like the Georgians for Justice Project. 5 JUDGE BIRCH: Can I ask you this? 6 MR. CUNNINGHAM: Yes. Sure. 7 JUDGE BIRCH: Some pretrial programs in 8 Georgia we've already determined have had an 9 opportunity to look at did not involve lawyers. 10 It was usually an administrative staff that was 11 set up to do this with the focus being trying to 12 get people out of jail so they wouldn't crowd the 13 jail and involve that expense, get them back to 14 work, back to their families, and give them an 15 opportunity to avoid a record. 16 What do you think the addition of the lawyer 17 to the equation; how does it effect it? 18 MR. CUNNINGHAM: Well, it actually takes me 19 to my last suggestion, which is that I can't do 20 with any less and incredible enthusiasm. 21 Actually, pick one jurisdiction that has the 22 kind of pretrial diversion program that you 23 described without appointment of counsel, 24 presuming it would comply with Alabama vs. 25 Shelton. Track everything in terms of its costs, KING COURT REPORTING SERVICE 48 1 et cetera. 2 In an adjacent jurisdiction they would like 3 to -- either they are already appointing counsel 4 or they try appointed counsel and then track that 5 jurisdiction and hopefully the two jurisdictions 6 are fairly similar, and I think to answer your 7 question now would be speculation on my part. 8 And I think my speculation isn't necessarily 9 going to convince people who have to take part in 10 budgetary decisions, in resource decisions, but I 11 think it would be really worth trying to find out. 12 Argument is certainly made, and I think the 13 federal system they probably know -- they have 14 good reasons for not wanting to do pretrial 15 diversions without lawyers, and I know 16 Mr. Kendrick, who is a real resource for you, I 17 know his sense and other people that I spoke to is 18 that it really works much better with a lawyer 19 involved in the system, but I think that's worth 20 trying to find out. 21 MR. KURTZ: My understanding is that Justice 22 Ginsburg's speculation about a pretrial diversion 23 program, or what she called pretrial 24 rehabilitation, was one without lawyers. 25 MR. CUNNINGHAM: That's right. KING COURT REPORTING SERVICE 49 1 MR. KURTZ: So you get arrested, or it gets 2 turned over to the DA or even the cop himself says 3 either I'm going to charge you with this crime or 4 you're going to do this, that, and the other and 5 pretrial rehabilitation. Fine. And he or she 6 goes out without intervention or whatever. You're 7 proposing and, apparently, at least according to 8 Justice Ginsburg, that would satisfy the 9 Constitution? 10 MR. CUNNINGHAM: Well, it's dictive. 11 Dictive means it's the Court's opinion, but it's 12 not a holding because the Courts are not against 13 them, but I think the makeup that the Court 14 changed drastically one would predict that a 15 challenge of such a program would probably -- such 16 program would survive. 17 MR. KURTZ: But you're proposing a -- I know 18 your preference would be for one with lawyers? 19 MR. CUNNINGHAM: Well, my actual suggestion 20 would be that I think that the -- 21 MR. KURTZ: Or to try it. 22 MR. CUNNINGHAM: For the Court to work at 23 this level, you need to pump more resources in on 24 every side. I mean, talking to, of course, there 25 are people -- everyone in this room probably knows KING COURT REPORTING SERVICE 50 1 what I do about the Underground situation in 2 Georgia, but my sense is that exactly the area 3 where this is problematic, the courts are under 4 resourced, the prosecution side is under 5 resourced, the police desperately need, you know, 6 the ability to computerize their police reports so 7 that they could get moving more quickly as well as 8 on the defense side. 9 And then you have to have some way of 10 funding the pretrial probation system. 11 Particularly pretrial diversion has been 12 meaningful. It will fail if it turns out to be 13 simply a way of not responding to the underlying 14 reason for the arrest. If it was just a way of 15 dumping cases as, for example, Mr. Malone and I 16 discussed concerned DUI cases in some 17 jurisdictions may not be getting sufficient 18 attention. 19 That would be a success in a way that it 20 would save money, but it wouldn't be a success in 21 the way of criminal justice. For a pretrial 22 diversion for it to be unsupervised, not knowing 23 that it would happen, I don't think that's the 24 responsibility to do it. 25 And so I think that regardless, there has KING COURT REPORTING SERVICE 51 1 got to be some resources. The question, do you 2 put in sufficient prosecutorial probation 3 resources and no defense resources? That's a 4 policy decision. The Supreme Court seems to say 5 that you can do it. 6 The question is, is that a smart decision? 7 And I think the way to find out, the extra dollars 8 you spend putting a lawyer in the system, my 9 opinion is a fairly small investment that is more 10 likely to make the whole thing be a success, but 11 that's -- that would be a decision the State of 12 Georgia would make for sure, or jurisdictions 13 would make in terms of sound policy, not just what 14 the Supreme Court is hammering us on the head to 15 do. 16 MR. KURTZ: And you have to keep in mind 17 that the universe of Alabama vs. Shelton is any 18 offense for which there might be a prison 19 sentence? 20 MR. CUNNINGHAM: My understanding of DUI in 21 the state because I believe they carry mandatory 22 jail time. Every DUI in the state, because I 23 believe they carry mandatory jail time. 24 MR. KURTZ: And any other municipal or 25 county ordinance that involves a sentence of KING COURT REPORTING SERVICE 52 1 incarceration at all? 2 MR. CUNNINGHAM: Exactly. Speeding, making 3 a left-hand turn. 4 MR. KURTZ: Right. Right. 5 MR. CUNNINGHAM: But, also, things that are 6 called petty offenses that are not petty in terms 7 of, like, domestic violence cases which are 8 handled at this end of the spectrum and 9 desperately need good attention. 10 MR. KURTZ: One further question and I'll 11 stop asking questions. I assume that if a 12 jurisdiction accepting your suggestion of 13 providing a lawyer at the very front end in all 14 Alabama vs. Shelton cases it would make logistical 15 sense, in fact it would seem to be a logistical 16 possibility to use any system other than a public 17 defender. 18 I mean, you couldn't have a -- I mean, or I 19 guess -- well, a public defender system would work 20 a lot better with that than some sort of panel 21 appointed counsel or even a contract system; is 22 that not right? I guess a contract system. I 23 guess you could contract -- 24 MR. CUNNINGHAM: Well, right. I think that 25 what would make, whether it was an appointed KING COURT REPORTING SERVICE 53 1 lawyer, contract, or a public defender, what would 2 really help that lawyer is whether it's the 3 pretrial probation services or whether it's some 4 other kind of state or non-profit agency. If 5 there is something there to work with that lawyer 6 upon working out the pretrial diversion plan, 7 okay? 8 Like the homeless service project or the 9 other project in San Francisco. You know, lawyers 10 are not particularly good at helping people get 11 into homeless shelters, or get on Social Security. 12 That's criminal defense lawyers. 13 You know, we kind of think about, you know, 14 the issues that are criminal law and criminal 15 procedures, and so you can have appointed counsel, 16 but it would be awfully helpful to that appointed 17 lawyer if there was something to support that 18 person in advising the client and supporting the 19 client going into pretrial diversion. 20 Now, if you have a public defender office 21 they might be able to internalize that. They have 22 alternative sentences and units inside of them, 23 but I think it's that support part that's not just 24 straightforward courtroom litigation advocacy. 25 MS. HOLMEN: Clark, I was particularly KING COURT REPORTING SERVICE 54 1 interested in your comments in your paper and in 2 your cases about the waiver issue because, I mean, 3 I think a lot of people think like Judge Stephens, 4 that all you can do is get them to waive it and 5 then Alabama vs. Shelton is not a problem, but I 6 was, frankly, really interested in those Georgia 7 cases you sent us about waiver because they take 8 such a strong position on what you have to have in 9 a record to show that there was waiver. 10 MR. CUNNINGHAM: Right. 11 MS. HOLMEN: Of course, the problem is most 12 of those cases will never be appealed and we'll 13 never know and there is no record. Do you have 14 anything else to say about that issue? 15 I mean, I think that's how Judge Stephens is 16 thinking about it. I'll just get them to sign a 17 form and then I don't have to worry about it. 18 MR. CUNNINGHAM: Well, one of the things 19 that I suspect -- 20 MS. HOLMEN: Not our Judge Stephens. 21 MR. KURTZ: It's not our Judge Stephens, 22 Stephens County. 23 MR. KURTZ: Which is named after one of his 24 forbearers; isn't that right? 25 JUDGE STEPHENS: That's right. KING COURT REPORTING SERVICE 55 1 MS. HOLMEN: My fault. My fault. Stephens 2 County. 3 JUDGE STEPHENS: Thank you. 4 MR. CUNNINGHAM: I led you down that path, I 5 apologize. There is a tendency, and I see it in 6 some of the Georgia appellate cases, to really 7 think of this in terms of people who go to trial 8 and represent themselves, and so the waiver is in 9 terms of it's not really a good idea. And I think 10 that Magistrate Adams is sort of thinking in those 11 terms. 12 There are a couple of things. It does not 13 seem to me that a person should only be offered a 14 lawyer after they've talked to the prosecutor and 15 after the prosecutor has negotiated the deal with 16 them, and that's very clearly what he's proposing 17 here, and it seems to me that that is just 18 strikingly unconstitutional as well. 19 And the Supreme Court said all the way back 20 in the articles here, you need a lawyer for that. 21 And certainly if the message is you can get out of 22 jail and go home today as long as you waive your 23 right to trial and waive your right to counsel, 24 but if you don't like it, but you can't get this 25 offer from the prosecutor if you deserve your KING COURT REPORTING SERVICE 56 1 right to counsel. That's clearly not a waiver. 2 And I think that's what he's saying in not 3 very subtle ways. Already knowing the outcome of 4 the case, we'll be glad to waive, and I don't 5 think that that could possibly be right. 6 In any event, silence. You don't have to 7 request a lawyer for the right to attach, and 8 there has to be -- I think there really needs to 9 be on the record colloquy and not just a written 10 form. 11 The fact of the matter is where the right to 12 counsel is offered, you know, most people take it. 13 Unless there are certain circumstances. Again, 14 Alabama vs. Shelton may change the national 15 picture. 16 Now, I know that Judge Coolidge in Municipal 17 Court in Suwanee, I think, says he has been 18 offering counsel in Municipal Court since Shelton 19 came down, pursuaded his counsel appropriate money 20 and he has had one request so far, but he also 21 says that he has a relatively affluent 22 jurisdiction, and traffic is probably not going to 23 be representative of other forms of misdemeanors 24 in terms of how many people are in the jail. 25 JUDGE BIRCH: Professor, we've got another KING COURT REPORTING SERVICE 57 1 situation in Georgia particularly. Georgia closed 2 a lot of its mental health facilities and that 3 sort of thing some years ago, and particularly in 4 the metropolitan areas, the less affluent area and 5 this sort of thing. A large majority of the 6 people who are incarcerated for petty offenses in 7 the jails are really mentally ill people. 8 When you start getting into waiver 9 questions, the people who have a demonstrative 10 history of mental illness, then again you've got 11 even a more difficult situation with the Judge in 12 evaluating the voluntariness and informativeness 13 of the waiver, and it seems like in Georgia we've 14 substituted jail for mental health facilities for 15 a large measure of our population, another great 16 problem that we see occurring when people talk to 17 us about it. 18 MR. CUNNINGHAM: But the difficulty is that 19 the normal way to evaluating these things is 20 through review, and as Ms. Holmen pointed out, 21 guilty pleas are very rarely appealable and, of 22 course, this type of case very rarely works its 23 way up the system. 24 For example, in this article that was handed 25 out today it quotes the State Court Judge as KING COURT REPORTING SERVICE 58 1 saying, I intend to ignore the verdict and 2 sentence them. 3 MR. KURTZ: That's his classmate. 4 CHAIRMAN MORGAN: Is that one of your former 5 students, Paul? 6 MR. KURTZ: No, but that's his classmate. 7 MR. CUNNINGHAM: That's actually a pretty 8 good way of saving money, you know, because that 9 kind of illegal activity by a Judge, you know, it 10 really works, but the real question is, as I said 11 at the beginning, how do you have a loophole? But 12 it's actually best for the community. 13 And I'll be glad to talk to people 14 afterwards. It's a very interesting case study 15 out of the San Francisco project where a number of 16 people that come in are people with mental health 17 problems, and it's amazing. One or two part-time 18 people for San Francisco and they're able to help 19 a lot of folks, a lot of people, and I believe 20 this from my own practice. It's connecting the 21 dots. 22 There are services out there, but connecting 23 the dots is difficult, and in many ways what the 24 appointed lawyer would do in a pretrial diversion 25 program would be kind of a piece manager, case KING COURT REPORTING SERVICE 59 1 manager. And that's, again, not something as, I 2 think, kind of a re-thinking indigent defense 3 role, but I think it's worth it. 4 MR. IDE: Mr. Chairman, if I can just make 5 an observation. What we've heard in our prior 6 sessions, we've heard that the criminal justice 7 system is a real money loser the way it's run, and 8 if you had a lot of counsel you could cut down 9 jail time, you could really save some money by 10 using indigent defense. 11 Now what I'm hearing is that the social 12 service structure, that's virtually at a collapse 13 and the courts are actually asked to pick it up 14 and take the mental cases and you're starting to 15 see around the country unified family courts, drug 16 courts which are really holistic approaches, but 17 if you get the social services to people you'll 18 save money and rehabilitate them. 19 I guess it's going to be a question for us 20 as to how far we go under our jurisdiction. 21 Clearly, from a business point of view, everything 22 you're saying makes a lot of sense, you'll 23 rehabilitate more people, you'll save money, and 24 you won't put an impossible burden on the Court 25 system. KING COURT REPORTING SERVICE 60 1 I think it's just a question for us as to 2 whether we footnote that or whether we spend time 3 looking into it. 4 MR. CUNNINGHAM: If I could follow up 5 briefly on that. The money which funds my 6 position at Georgia State University is an unusual 7 fund which came out of a Federal Court settlement, 8 not a rich donor, and the money intended to be 9 used around issues of ethics, professionalism, and 10 access to justice, and so one of the reasons that 11 I -- it wasn't Adam vs. Atlanta or St. Louis, but 12 it was Wayneshot vs. Orr. 13 My chair has some discretionary money, and 14 as a result of this discussion that I have been 15 having I'm very inclined to consider using some of 16 that money to hire an expert in the field of 17 criminal justice administration, develop a grant 18 proposal. 19 I think that foundations and other donors 20 would be very interested in funding those kind of 21 pilot projects that I've been discussing. And in 22 terms of a possible role for the Commission, I 23 think in light of it some point the Commission can 24 support that. 25 If a proposal was passed, supported by all KING COURT REPORTING SERVICE 61 1 aspects of the system, prosecutors, Judges, law 2 enforcement, information system and the defense, 3 that would startle those donors and delight them, 4 and I think there would be a real possibility, as 5 I said, for Georgia to be on the map in an 6 extraordinarily positive way. 7 Even if the Commission didn't feel that that 8 was right for the Commission, as individual 9 Commission members I would encourage you to let me 10 know those ideas the Commission, if it was 11 interested in this kind of way, and individuals 12 who might be interested in collaborating, and 13 those are modest things that the Commissioners can 14 do. 15 JUDGE FULLER: Let me ask you one thing. 16 You mentioned pretrial diversion in the Shelton 17 case, and we're interested in indigent Defendants. 18 You indicated that a large majority of pretrial 19 diversion programs are operated by the Defendants. 20 People who enter the programs, paying for the 21 program, they are not publicly funded right now. 22 Is it possible to utilize pretrial lawyers, 23 just from your viewpoint, where the indigent 24 person is required to pay for the program? 25 MR. CUNNINGHAM: What I've read, and I KING COURT REPORTING SERVICE 62 1 really should turn the microphone over to 2 Mr. Malone or Mr. Shapiro. One of the programs 3 that I've seen has a sliding scale, and it's a 4 reduced sliding scale, and its service hours paid 5 for it, but I think to make it work right you have 6 to put some infusion in there. 7 But one of the articles that was in the 8 Atlanta paper earlier in June talked about a woman 9 that was in jail for two and a half months for bad 10 checks, cost $3,500 or more jail time, where in 11 the case where probably she would have been 12 represented it would have been a significant bond 13 restitution. 14 Well, $3,500 pays for a lot. It pays for 10 15 hours of a lawyer for $100 an hour. It could pay 16 for pretrial probation services. It could be pay 17 for the prosecutor on the other side and still be 18 ahead versus the jail expense and much more. 19 Probably, you wouldn't destroy the woman's life. 20 Rick, I talked about pretrial practice. Do 21 you want to? 22 MR. MALONE: Sure. I would be glad to. 23 Mr. Shapiro and the National Institutes of Georgia 24 have all endorsed most of us that are out there in 25 an attempt to improve indigent defense in this KING COURT REPORTING SERVICE 63 1 state. We have participated in forums and matters 2 with the State Bar and virtually every time we're 3 asked, and I don't believe we have yet done 4 anything but be supportive of this matter as we 5 possibly can. 6 We've also supported indigent defense 7 recently in our efforts to secure long forgiveness 8 for public interest attorneys. That was the DA's 9 initiative, but it was never even considered not 10 to include public defenders as well, and we 11 recognize the importance of indigent defense and 12 approach indigent defense in that manner. 13 It bothers me some, as I have to mention, 14 that passed out at this matter was some opinion of 15 the Atlanta Journal-Constitution which seems to 16 almost have to have a bad guy, and often that is 17 either the prosecutor or the Judge in these 18 matters. 19 I don't know any Judges, or few Judges, or 20 prosecutors who are against appropriate indigent 21 defense and it is regrettable that they're casting 22 the role as the antagonist in every article that I 23 read about these things, and I pointed out to 24 Mr. Rankin the other day that if they're going to 25 make them the antagonist that they'll spell the KING COURT REPORTING SERVICE 64 1 name right and it seems that they are balancing 2 the die as here we are not balancing at all. 3 We are looking for good indigent defense and 4 participating at your request and those of others 5 to make it the best that it can be because we 6 recognize the system. The advocacy system only 7 works when both sides are represented. 8 I don't want to go too long into that. 9 That's sort of our advertisement, but I do note 10 that we care about appropriate defense. We do 11 have some opinions on an individual basis about 12 how that should be done, and that's for another 13 day. 14 I know that the Chief Justice mentioned that 15 they had been dealt a broad and difficult task as 16 a result of Shelton vs. Alabama, and it strikes me 17 that he has hit the nail on the head both for this 18 Commission and also for the courts of this state. 19 We're going to have a great deal of impact, 20 in my view, on the courts to the process that we 21 have in the State. As Professor Cunningham was 22 speaking in talking about possible alternatives 23 and diversion programs and things of that nature, 24 I noted that at this table I'm probably the only 25 person who has practiced a substantial portion of KING COURT REPORTING SERVICE 65 1 his practice in the rural areas of the State. 2 We've talked about programs that might well 3 be suited for our full-time courts, but I think 4 the initial impact, the first thing we're going to 5 see from Shelton vs. Alabama is going to be in our 6 rural areas. 7 There are approximately 50 to 60, that's a 8 minimum, the low end, part-time courts operating 9 and doing misdemeanors in this state, and they're 10 not represented in this Commission, and their 11 views, frankly -- I mean, I'm not saying they're 12 being ignored, but many of the things that were 13 said are impossible under those circumstances. It 14 is near impossible for those people to accommodate 15 Shelton vs. Alabama, and so it may well be that 16 the initial impact that Shelton vs. Alabama has on 17 the State of Georgia is a strong impact on whether 18 or not we continue to have part-time courts in 19 Georgia. 20 Whether or not we can even have courts and 21 public defenders and prosecutors in our part-time 22 rural areas of Georgia is a question here, and 23 then one wonders well certainly we must is the 24 answer to that. Should we not be addressing the 25 issues of half of the population of Georgia about KING COURT REPORTING SERVICE 66 1 providing adequate courts, prosecutors, and public 2 defenders, indigent defense attorneys to that part 3 of Georgia. 4 Diverting our focus to pretrial diversion 5 programs in an effort to save money might be 6 diverting our attention away from what the focus 7 of this Commission was designed to do is to 8 provide adequate indigent defense to the people of 9 Georgia, not just those in the Metro area. And 10 that will have a vast impact not only on what this 11 Commission does and what you recommend is going to 12 have to be passed through our legislature, the 13 majority of which comes from those very areas. 14 I'm delighted that we have people interested 15 in pretrial diversion programs. You will note if 16 you look around at the pretrial diversion programs 17 in Georgia most of them, if not all of them, were 18 started by prosecutors in an effort to accommodate 19 many of the needs that Professor Cunningham just 20 stated, and we are very supportive of such a 21 proposition. 22 Also in his presentation he mentioned, and, 23 again, I'm not taking issue, but it's, again, the 24 advocate in me. I'm making my closing argument 25 and listening and making my rebuttal. He referred KING COURT REPORTING SERVICE 67 1 several times that the pretrial diversion program 2 might save money. Now, that intends or that 3 implies that you have money to save, and there are 4 many affluent areas in this state, and prosperous, 5 and we're proud of that, but there are many areas 6 who have nothing to save. 7 It's not a matter of they can take it from 8 here and put it there and that in the ultimate 9 result it would be better. That is very unlikely 10 to occur in the rural areas of this state, and so 11 when we're talking about a state-wide Commission 12 as we are dealing with this matter, I am for pilot 13 programs, certainly for corporate grants, and even 14 for the State to kick in money for the study of 15 these matters. 16 I see the value in everything that he said, 17 but if we're going to talk about the impact of 18 Shelton vs. Alabama we're going to have to talk 19 about putting public defenders in part-time courts 20 that cannot operate. 21 These articles, I disagree certainly with 22 their perception on this, but these people are 23 being forced to operate a court with no resources 24 period. So they're looking not for ways to solve 25 this matter, but for ways to get around it. They KING COURT REPORTING SERVICE 68 1 have no alternative to that. 2 It's not like they can say well gee, you 3 know, the esoteric view is everybody should have 4 one and we're going to now create a public 5 defender system that is paid for, and a 6 prosecution system, and a full-time court that 7 will deal with what the Supreme Court is talking 8 about. 9 Judge Adams isn't given that opportunity or 10 that luxury. He's given that as a problem and he 11 is looking for the only other alternative to doing 12 it is to finding ways around it. 13 And so, I mean, I'm not -- I disagree with 14 everything he said, the articles and their 15 interpretation of Shelton vs. Alabama I disagree 16 with as well. I just want to make sure that we 17 keep the focus on the problem. We want to be 18 fair. We want the guilty punished, we want the 19 innocent to go free, and to do that we're going to 20 have to have a balanced advocacy system. 21 Something where no one is left out. 22 And I worry that if we change that focus to 23 things such as pretrial diversion, I don't want to 24 change it, I want to include that, but I'm not 25 sure that we shouldn't focus on the first matter KING COURT REPORTING SERVICE 69 1 first. 2 MR. KURTZ: Rick, before you go on, when you 3 use the phrase part-time courts, what exactly do 4 you mean? 5 MR. MALONE: In Georgia we have full-time 6 State Courts, meaning Judges who serve only as a 7 full-time Judge like Judge Adams does, in or about 8 14 judicial circuits. The other 40 do not have 9 those. They are either served by the Superior 10 Courts and do the misdemeanors, or by part-time 11 Judges. Judges who work for a stipend and serve 12 and then practice law as well. 13 Of the 100 solicitors in the State of 14 Georgia, only 13 are full-time prosecutors with 15 offices. The remainder of these people are 16 private attorneys who are prosecuting those cases 17 in misdemeanor court. 18 Due to the fact that now the system has 19 changed, as Shelton clearly does, the ante has 20 been raised in probably 60 to 75 percent of the 21 State of Georgia, and so there is very little 22 resources that are going to be changed. 23 The counties, under the current system, are 24 going to have to put up the resources for these 25 particular courts. There is no state provision KING COURT REPORTING SERVICE 70 1 for this. And they get the fine money, and 2 fortunately, or unfortunately, I told professor 3 Cunningham that this may well be the first step in 4 doing away with part-time State Courts in Georgia, 5 and for some of us that's not all together a bad 6 thing. 7 For example, many of the counties, or at 8 least courts are operated for profit. There are 9 counties in this state that have as much as 30 10 percent of their income, of their gross income 11 from fines from their State Court. They depend on 12 that to keep their roads improved, to keep their 13 schools open, and things of this nature. They 14 depend on it to make a profit, and the moment that 15 it doesn't you're going to see State Courts, 16 part-time State Courts shutting down all over this 17 state, and when they shut down then the State is 18 obligated to pick it up through their Superior 19 Courts. 20 And so the impact of this I think primarily 21 is going to be -- I mean, this is the first step. 22 It's certainly not the death nail or the silver 23 bullet that takes out the State Courts, but it's 24 certainly the first step down that path. 25 It's going to make State Courts less KING COURT REPORTING SERVICE 71 1 profitable. I never felt, and I don't know, most 2 of the people at this table never felt courts shut 3 down. That is not the object of these courts, but 4 that is not the way it's looked at in rural 5 Georgia by County Commissioners who are funding 6 these courts. 7 They will immediately, when it no longer 8 becomes profitable but becomes a burden, abandon 9 the State Court and give that duty to the State. 10 I believe that -- and so my sentence isn't going 11 to happen next year or next week, but it's going 12 to happen if we persist in following this path 13 which I think is the appropriate path that has 14 been set. 15 I just wanted to mention that this is going 16 to have a great and significant impact on courts, 17 and so it's not going to be a matter of how can we 18 save money. This money doesn't exist, but it's 19 going to be a matter of how can we maintain a 20 court system and make it fair at the same time? 21 I think that I have questions and we have 22 debated this around the office. How is it going 23 to effect the basic procedure that is employed in 24 every court in the State of misdemeanors -- that 25 do misdemeanors. KING COURT REPORTING SERVICE 72 1 For example, what about bond forfeitures, 2 cash bond forfeitures in a State Court? What 3 happens, most often, when someone is stopped on 4 I-75 going to Florida and they are stopped for 5 speeding, which carries a penalty 12 months in the 6 penitentiary and the possible fine of $1,000 even 7 if you're five miles an hour over the speed limit. 8 You're immediately taken to the police station and 9 allowed to post a cash bond. 10 That cash bond is then, in State Courts all 11 over this state, the first order of business every 12 day is to forfeit the cash bonds in lieu of the 13 fine. There is no representation. There is no 14 appearance. There is nothing. 15 This person then walks away from there with 16 a criminal record for speeding. They have, in 17 effect by their absence, pled guilty to an 18 offense. They've waived nothing. They've 19 forfeited their cash and this is a money-making 20 proposition. 21 You're stopped, you pay, you go to the 22 courthouse, you pay, you go on your way, and you 23 get to keep your license. What does this decision 24 do to that? Well, that's one of the broad 25 decisions that the Supreme Court of Georgia is KING COURT REPORTING SERVICE 73 1 going to have to make and they have to decide 2 exactly when this kicks in. 3 We all know that a preliminary hearing is a 4 critical point in the case. We all know that the 5 courts have held that it's a critical time that 6 relates to your rights under the Bill of Rights in 7 the Sixth Amendment. We all know that yet in 8 Fulton County, Georgia, every misdemeanor case has 9 a preliminary hearing. 100,000 cases a year in 10 this county alone. Probably in Cobb you're 11 talking 60,000. The same in Gwinnett, where 12 preliminary hearings are held without prosecutors 13 or attorneys. 14 There is no constitutional requirement that 15 you have a prosecutor, but there is that you have 16 a defense attorney now. And so the impact of this 17 is going to be amazing in that regard. 18 We can perhaps re-draft the penalties, 19 re-draft the misdemeanor codes so that most of 20 these things not be criminalized. Make them 21 punishable by a fine. 22 There are many things that can be done, but 23 the legislature is going to be part of that broad 24 answer. The courts are going to be making 25 decisions about these types of things. There is KING COURT REPORTING SERVICE 74 1 authority in this state that says probation 2 revocation hearings after a person in Superior 3 Court. 4 Now, my experience in the rural areas and in 5 the Metro area tell me that our Superior Courts 6 are better at this. I'm not going to say perfect. 7 They're much better at realizing that people are 8 entitled to counsel. They're far better if there 9 is a waiver. Then it is usually very well 10 documented and there is a record. 11 Let me go back to my State Courts for just a 12 minute. One of the key things in all the cases 13 that Professor Cunningham pointed out was that 14 these things must be determined on appeal by the 15 record, and they're not going to assume a waiver 16 without a record. 17 Many of these actions that are taking place 18 in these part-time courts are not on the record. 19 There is no court reporter there taking these 20 matters down so that there is anything to review 21 on the part of that. 22 And so in these small courts they're also 23 going to have to employ court reporters, pay for 24 the records and type them up and file them in the 25 courthouses. It could have a negative impact in KING COURT REPORTING SERVICE 75 1 that regard. There is on the issue of recidivism. 2 In Superior Court we all know that if you're 3 going to charge somebody with a penalty that is 4 enhanced by recidivism you have to show that that 5 offense was either done with the benefit of 6 counsel or there was a knowing or intelligent 7 waiver in that regard. 8 And so for years the Superior Courts have 9 been accommodating that, are very careful in that 10 regard; however, in misdemeanor offenses in the 11 State Courts, let's take DUI for example, your 12 first offense has one penalty, your second has 13 another, and a third yet another. What do you 14 count on offense now? 15 I'm not going to tell you pay your fine for 16 a first offense if a DUI is your first offense 17 when it comes to enhancement of punishment, or a 18 second offense and it was not done without the 19 benefit of counsel and no intelligent knowing 20 waiver. 21 How many people now have a record that can 22 sustain the second and third time penalty? 23 Georgia is one of the worst states in the country 24 for drunk drivers and deaths in drunk drivers. 25 You hardly pick up the Constitution, or listen to KING COURT REPORTING SERVICE 76 1 the news, or not hear about another child who has 2 been victimized in that regard. And part of my 3 opinion has always been that our court system has 4 an element of blame in that because we have 5 created a system that allows not strong 6 enforcement. 7 Here is another way of inhibiting that 8 enforcement. No one wants those children to die, 9 defense attorneys or anyone else. We want a fair 10 system that gets the bad drivers off the road, and 11 this case may well have an impact. 12 I wonder about the competency of a defense 13 attorney who goes in there on a third DUI offense 14 and does not question and does not raise the issue 15 of was he competently represented? Meaning did he 16 have benefit of counsel at all critical points of 17 the prosecution for the previous DUIs before we 18 take this multiple offender off the street? 19 And so it has critical impact. It may have 20 critical impact. I believe it will take time for 21 this to kick in. I'm not sure how quickly the 22 defense Bar will respond to this and the public 23 will respond to this because they're going to have 24 to meet with you if they want to question these 25 issues and the issue of Superior Courts. KING COURT REPORTING SERVICE 77 1 Superior Courts take the position that 2 people are not entitled to an attorney as a matter 3 of law. At a probation revocation hearing, they 4 are at the initial sentencing but not necessarily 5 at the probation revocation hearing. That, 6 obviously, in my view, is changed as well, and 7 will increase the need for indigent defense in our 8 Superior Courts. 9 Our Superior Courts do misdemeanors as well 10 in many parts of the state. Basic State Court 11 procedures and how they're operating are going to 12 have to make changes. 13 The AJC article that was passed out to you 14 earlier that names Mr. Gordon and Mr. Harvey and 15 what they do, they're not unusual. This is 16 virtually the way every part-time State Court 17 operates, and these people are frustrated, and are 18 calling, and want to know what to do, and they 19 want some direction. 20 And I happen to know Mr. Gordon and 21 Mr. Harvey both very well and they're very decent 22 and honorable men. They're not trying to run 23 roughshod over anyone. They're grappling for the 24 rights of them in the system that we have created. 25 To get back -- to finish my time, I've used KING COURT REPORTING SERVICE 78 1 most of it. I don't want to get into the dollars 2 and cents because that's what Mike is going to do 3 and I think we should. I think that we have to. 4 In the long run, this is going to 5 dramatically change the system from a financial 6 perspective, and I urge this Commission to 7 consider the rural areas and the way they operate 8 in this as much as you do the Metro area. 9 The Metro area has its benefits and its 10 problems, but so does the rural area. And this 11 state is not homogenous in that regard. They are 12 very different in their court systems and these 13 other areas. Very different to the victims as 14 well as to the Defendants and to the attorneys and 15 everyone else, and now that there is a bright line 16 rule on representation when that representation is 17 appropriate virtually anytime incarceration is a 18 possibility then that is going, I believe, to 19 dramatically impact it perhaps more in the rural 20 areas that are introduced here, and I urge you to 21 consider that. We're running out of time. 22 MS. DEVINE: Can I ask one other question? 23 And this may also be for the other panelists as 24 well. What is going on in other states from the 25 prosecutor's point of view in response to Alabama KING COURT REPORTING SERVICE 79 1 vs. Shelton? 2 MR. MALONE: I can't answer that for too 3 many states. I think they're doing pretty much 4 what we're doing. They're scratching their head 5 and wondering what are we going to do with Alabama 6 vs. Shelton as much as anything else, but I have 7 had some discussions concerning this. Almost 8 every person I have talked to who are my peers, 9 and my people who are doing what I do, don't have 10 an analagous situation. 11 Very few of them have a system where 50, 60 12 percent of their misdemeanors have been out for 13 two months now. What are we doing so far to 14 address the issue, and are we creating cases that 15 are going to be, you know, reversed down the line 16 because we haven't complied since the decision 17 came out? Do I think we're doing that? Yes, sir. 18 I do. I mean, I think we're very slow in the 19 update, but we're probably no slower than anyone 20 else. 21 MR. DUBOSE: Do you know of any 22 jurisdictions that are consciously trying to 23 address that? 24 MR. MALONE: Yes, several. I think 25 Professor Cunningham mentioned the court in KING COURT REPORTING SERVICE 80 1 Suwanee, and we have had several including, 2 ironically, the State Court is asking for guidance 3 and trying to figure out how to do this. It 4 simply isn't, though, let's just go write a check. 5 It's not there, and so they are very difficult. 6 I think they are attempting now to advise 7 better what people's rights are and -- but it's 8 going to be -- it's going to lack resources. It's 9 not going to have the resources. Court goes on. 10 We've probably created thousands of cases that 11 could be and may be litigated over the issue of 12 Shelton vs. Alabama. It's very slow in that. 13 MR. DUBOSE: Is it your perception in most 14 jurisdictions that it's business as usual since 15 Alabama vs. Shelton? 16 MR. MALONE: Uneasy business as usual. 17 They're uneasy because they know about what the 18 practice is under review and questionable, but 19 what do you do when you've got jail foreseeable? 20 On the upside, Mr. DuBose, Judge Coolidge, 21 as I said, I talked to at length though I think he 22 indicated that he was not typical in this respect, 23 he said the Court can appropriate money for 24 counsel. 25 He also said that he has taken the position KING COURT REPORTING SERVICE 81 1 that when he's presented with probation revocation 2 that he will not revoke probation unless there is 3 a waiver, which means probation revocation 4 probably isn't happening much in his jurisdiction. 5 I also understand, and I've received a copy 6 of a letter I believe came out from the ACLU and 7 the Southern Center for Human Rights which, if not 8 all Municipal Courts, asking him to immediately 9 review everyone who is currently being 10 incarcerated to see whether they were incarcerated 11 in violation of Alabama vs. Shelton. And I don't 12 know what is happening with that letter, but 13 certainly something is happening. 14 CHAIRMAN MORGAN: Judge Stephens. 15 JUDGE STEPHENS: In addition to having a 16 number of part-time State Court Judges a lot of 17 the Judges, Magistrates, Probate Court are not 18 lawyers in these areas as well, and so that's 19 something that needs to be factored into the 20 equation. 21 MR. MALONE: Certainly Magistrates, some of 22 my staff is amazed. I came from South Georgia and 23 we were talking and we were amazed that there is 24 an inordinate number of barbers who serve as 25 Magistrates. One of my people suggested that they KING COURT REPORTING SERVICE 82 1 might run for the job, and I told them that they 2 weren't qualified, they didn't know how to cut 3 hair. 4 JUDGE STEPHENS: A lot of them are better 5 than some of the Judges, in my experience. 6 One of the things that you mentioned when I 7 was here, and I think you mentioned it again, and 8 I agree with it, is that it is a balanced advocacy 9 system and that is you look over there on the 10 other table and you will see that there is a guy 11 there alone without an attorney. And I assure you 12 that Judges feel the same way. 13 There has been some mention in the 14 newspapers about Judges don't want to see lawyers 15 on the dockets, or slow them down in the process, 16 but in my experience over 11 years things go much 17 more smoothly, much more efficiently when there 18 are competent attorneys representing both sides. 19 MR. MALONE: With all due respect, our 20 friend in the media, when you write a story you 21 have to have an antagonist, I guess, to make it 22 interesting and readable. 23 JUDGE STEPHENS: I'm the same way. Your -- 24 MR. MALONE: What they're doing, the papers 25 and others, are giving anecdotes as to what's KING COURT REPORTING SERVICE 83 1 occurring, and I believe as a result of the 2 conversation that we had in my last appearance, or 3 as I suggested, is something that this Commission 4 has done, and I'm sure many suggested, is that 5 they have a group come in and do some analysis or 6 finding what is going on not by any text but by 7 actually examination. 8 I know and you know, Judge Stephens, that 9 most of our Judges care deeply about our system 10 and want it as balanced and fair as possible, and 11 we can always find an abomination to put in the 12 newspaper, but what we really need to work with 13 from this perspective is the truth of what's 14 actually going on out there, and without looking 15 for incrimination against one particular group or 16 parties, but with men of good faith and women of 17 good faith to deal with the problem honestly and 18 justly. 19 And I think that's what this group is trying 20 to do, and I think that's what most of your Judges 21 and prosecutors, certainly there are people in 22 Judges and prosecutors and defenders who don't 23 understand or don't care and that's going to 24 happen in any group, but to continually cast the 25 Judges are this way, and the prosecutors are this KING COURT REPORTING SERVICE 84 1 way, and the defense attorneys are this way, it's 2 just simply wrong, and it's just not accurate. 3 CHAIRMAN MORGAN: We're going to have -- 4 we're running a little bit short on time, and so 5 I'm going to exercise the prerogative of chair, 6 and I think our reporter has a question, and then 7 we're going to move to Michael Shapiro because I 8 want to make sure that we save all of Judge 9 Overstreet's time for him. 10 MR. KURTZ: Specifically, what is there 11 about part-time Judges that you think, or the 12 counties and circuits that have part-time State 13 Court and Municipal Court Judges that would mean 14 that Alabama vs. Shelton would have a disparate 15 impact on them? Is it just a question of that's a 16 proxy for there is not a lot of money in that, 17 there is not a lot of resources? 18 MR. MALONE: Most of these people are doing 19 this. That's what bothers me when you read these. 20 They're doing it as a public service. They have 21 thriving practices. They're part-time. They 22 probably are making a paltry salary as a part-time 23 Judge. It doesn't pay their secretary. 24 I mean, you know, it doesn't pay for the 25 time, and they do it because they feel the KING COURT REPORTING SERVICE 85 1 community needs it and as do many people who are 2 serving as indigent defense attorneys in those 3 areas as well. 4 There is a point of diminishing return when 5 it becomes that this is no longer worth it at all. 6 I'm not getting the idea that I'm doing a public 7 service; that when I no longer feel like I'm doing 8 the right thing or I'm ridiculed for trying to do 9 the right thing then I'm just not going to do it. 10 MR. KURTZ: So you think Alabama vs. Shelton 11 is going to make their workload and they're going 12 to have to do more for the paltry amount of money 13 that they're getting paid? 14 MR. MALONE: Certainly State Courts as I've 15 seen but, basically, it's a cattle call. They 16 will bring in a massive number of people, the 17 Judge shows up 30 minutes after the prosecutor who 18 calls the case and goes up and says the fine for 19 this one is 50 bucks. Do you want to pay it or 20 what? They'll say I'll pay it. They sign the 21 thing just as described in this article. 22 I'm not saying the article is inaccurate in 23 the way it operates. It's exactly the way it 24 operates. They show up the they go before the 25 prosecutor, they sign the paper, and when the KING COURT REPORTING SERVICE 86 1 Judge comes out he says okay, this is $50, and 2 they pay the fine. 3 Even like Judges in Wayne County. And they 4 do this one afternoon a week and that's the way 5 court is operated. That, obviously, can't happen 6 anymore. Shelton vs. Alabama changes all of that. 7 Everybody has to be advised and you can't sit 8 there sideways and twist. 9 Very few people in these positions are going 10 to twist people's arms in the way they're raised 11 in the Constitution. That is not -- I don't 12 believe those people are a bit that way, for the 13 most part. 14 CHAIRMAN MORGAN: Thank you very much. 15 Michael. 16 MR. SHAPIRO: The Defendant having neither 17 testified nor introduced evidence meaning they 18 have a right to testify. I'm reminded of Wallace 19 Cato's comments earlier this week when the Judges 20 and I were attending session and we talked about 21 there is one indigent defense system and we're all 22 in it together, and we are. And I commend the 23 Judges and I commend Rick for their participation 24 in helping us solve what has even become a larger 25 problem since Alabama vs. Shelton. KING COURT REPORTING SERVICE 87 1 With regards to Judge Adams, he's a decent 2 Judge and a good man. I spent time talking to 3 him. He was accurately quoted and he will admit 4 that he was accurately quoted; however, the full 5 context was he was talking to his Commission 6 saying do you know what, folks? $1,000 a year 7 isn't going to cut it. I need more money, 8 otherwise there is no alternative but to deny 9 people the right to he court. 10 And so I'm satisfied having spent as much 11 time talking to Judge Adams that he is trying to 12 find his way through. By the way, he is the 13 lowest paid Judge in the State. He is retiring 14 partly because of that. 15 Stephens County, like so many of our rural 16 counties, is nearly bankrupt and they are 17 struggling to do what is just. When I first read 18 Alabama vs. Shelton I thought three things. I 19 thought my God, they breathed new life into 20 Lawrence vs. State, which was a 1987 Court of 21 Appeals case that said any time the range of 22 punishment for a crime included the potential for 23 jail time, he court should be provided. 24 And that case has never been overruled in 25 Georgia, but it certainly had some pieces taken KING COURT REPORTING SERVICE 88 1 out of it. It's been talked about. Most people 2 don't remember reading it in 1987. 3 Clark was accurate in his litany of cases, 4 his chronology. Since then we have had a number 5 of cases in the folders that I gave y'all. Since 6 Shelton we had the Tucci case which came out the 7 day after Shelton and it describes carefully what 8 needs to be in a waiver. 9 I was teaching on Wednesday the Superior 10 Court Judges. They said what needs to be in a 11 waiver? I said your best guide right now is 12 Tucci. It lays it out, five or six things that 13 need to be in a waiver. 14 Ten days after Shelton the Miller-Roy case 15 came out. It doesn't even mention Shelton, which 16 startled me. It says he court was not necessary 17 probably because Roy was only fined. 18 A month after Shelton the Godlewski case 19 came out. Very clearly the only thing that 20 happened was a $200 fine and the case was sent 21 back because the record was silent about waiver of 22 he court. 23 Rick and Clark both touched on that. This 24 goes back four years to the King decision. King 25 requires a verbatim record of their courts, and we KING COURT REPORTING SERVICE 89 1 still have courts that are not doing it. The 2 question is what is a verbatim record? 3 We talk about a record that's usually 4 completed. That's usually the order. Is it the 5 same as the transcript? No. To me a verbatim 6 record is done, that takedown is done such as the 7 stenographer is doing here, or a mask reporter, or 8 just a tape recorder in the courtroom. I think 9 four years ago that was mandated. 10 The Thompson case, which is also perhaps the 11 most confusing because it tries to go after Tucci 12 from the light of what happens when it's a plea or 13 a trial. I've given you all of those cases in 14 your reference. 15 Shelton causes problems in new cases and 16 that's what we're talking about. To provide he 17 court if somebody is probated or suspended. There 18 was discussion earlier this week about is there a 19 difference between a probated or suspended 20 sentence? 21 I think all of us who practice law 22 experience this, and I don't think that Justice 23 Ginsburg's opinion makes a difference whether it 24 was suspended or probated, he court needs to be 25 provided because that's the way I've read Shelton. KING COURT REPORTING SERVICE 90 1 Rick touched a little bit on what do you do 2 with the probation cases? Somebody is on 3 probation, you want to revoke them. There are 4 typically two types of revocations. One is a 5 status revocation. They didn't pay the fine, they 6 didn't pay the restitution. They were out at the 7 pool hall with the boys when they shouldn't have 8 been. 9 The second is a new offense, and that's the 10 one that's probably a little more difficult for 11 the prosecutors to deal with. In the past you had 12 a balancing test on the revocations. On the 13 evidence, if you violate the terms of probation 14 the fine will be revoked compared with the 15 reasonable doubt standard on the new offense. 16 Much tougher standard. 17 Most prosecutors, unless they are a new 18 offense, which was particularly egregious, would 19 go forward on the revocation. Now it's actually 20 going to be easier for them to go forward on the 21 new charge than on the revocation. You have to 22 read Ginsburg's opinion. Relate back, refer back 23 to whether or not there was a knowing, 24 intelligent, voluntary plea. Something more, we 25 might as well call it a forget Tucci now or KING COURT REPORTING SERVICE 91 1 proceed with the new charges. 2 The impact is going to be on the rural 3 areas. It's going to be on the metro areas. It's 4 going to be on the Superior Courts. Not as 5 dramatic, but certainly there will be a secondary 6 cascading effect like Rick has described. It will 7 be on the State Courts. 8 The biggest impact, I think, is going to be 9 on the Probate and Municipal Courts. They have 10 very large caseloads, probates are smaller, and we 11 have a couple of hundred Municipal cases, and we 12 have a couple of hundred Municipal Courts in the 13 State. They are all part-time except for the City 14 of Atlanta. 15 The problem is not that they can't provide 16 he court, they haven't been providing he court for 17 the most part. Unlike your Superior Courts and 18 the State Courts where you're ramping up. You're 19 going to have to start from square one. The 20 position? Pretrial diversion? Fine only? Do the 21 Laura Tucci waiver? The options are very 22 plentiful. 23 In a fine only in the Miller-Roy case, the 24 Godlewski case, what do you do for the Defendant? 25 Mr. Morgan, nice to see you here in court today. KING COURT REPORTING SERVICE 92 1 Do you want to plead guilty? How much money do 2 you have in your pocket? $100. That's what your 3 fine is going to be, and clearly there are already 4 some cases that seem to have that. 5 If you go back to the Barnes decision a year 6 ago -- it was last summer. $762. It seems a 7 little coincidental that Mrs. Barnes had $762 in 8 her pocket. Those are some of the examples. Just 9 like Romeo and Juliet. 10 Cases are lined up. The Judge comes out and 11 starts handing out sentences. It usually takes 20 12 or 30 minutes. Courts are slowing to a grinding 13 halt, and I'm not saying this is wrong. I'm here 14 to tell you what's not right. Not to bring value 15 to right. Between King and Shelton and Tucci 16 we've got a very new ballgame to tell. 17 Now, one of the Judges at this week's 18 seminar asked about the ineffective assistance of 19 he court issue. What about the malpractice 20 actions? You know, can we use those as an 21 indicator of whether we have a problem at the 22 lower level? 23 And I realize it's not directly related to 24 Shelton, but I chose to hold my tongue there 25 because it was not my forum. I think they are not KING COURT REPORTING SERVICE 93 1 the indicator. 2 My experience in 21 years of practice in 3 criminal defense is a Defendant who does not feel 4 that he or she got justice at the trial level has 5 zero confidence post conviction relief whether it 6 be an appeal, a habeas, a malpractice claim, or an 7 ineffective claim that is asserted and their post 8 conviction will be successful. 9 And so if you're looking for problems that 10 we have, and the problems are now magnified eight 11 times over with Shelton, the funding is going to 12 be a big issue, and that's what I determined. 13 Don't look for the ineffective claims of 14 malpractice. They are the tip of the iceberg and 15 probably smaller than that. 16 In terms of the numbers, folks in the 17 Administrative Office of the Courts were kind 18 enough to give me the calendar 2000 misdemeanor 19 case counts. As many of you know, we get case 20 counts where he court has been provided. 21 Currently 152 of the 159 counties are seeking 22 funding from the Indigent Defense Council and 23 therefore give us their statistics. 24 We don't get it from seven other counties 25 and we don't get any information from Municipal KING COURT REPORTING SERVICE 94 1 Courts, and there are thousands of thousands of 2 cases going through those courts, but AOC in the 3 year 2000 reported 135,939 cases, misdemeanor 4 cases, that went through either Superior, State, 5 or Probate Court. That compares with 37,000 cases 6 that were presented to us where he court was 7 provided. And so what we're getting is 8 approximately one quarter of the caseload. 9 In addition to that, there were nearly 10 70,000 cases that went through the Magistrate 11 Courts. I am presupposing, as the Appellate 12 Courts say, predebata, that all of those cases 13 were heard later on by the Probate Court or the 14 Superior Court, that's an assumption of some of 15 those cases in Magistrate Courts, but if we did a 16 very conservative model we are assuming that only 17 one hour of out-of-court time and one hour of 18 in-court time spent on each one of those 19 additional cases, we're talking over $10 million 20 to do representation. 21 Many of you have asked the two times that I 22 have been privileged to testify before the 23 Commission in the past how much is it going to 24 cost? Is the $55.4 million that we're spending 25 adequate? You might as well run that up to 65, KING COURT REPORTING SERVICE 95 1 and it's really higher than that because if we're 2 going to do it we have to find a way to capture 3 the numbers. 4 We can no longer afford to have separate 5 systems. We must have one system. And I'm not 6 advocating for a one-size-fits-all. I'm not 7 saying that we have a new bureaucracy in Atlanta, 8 but I go back to what Judge Cato said. We have 9 one indigent defense system. We're all in this 10 together. 11 CHAIRMAN MORGAN: Okay. Thank you very 12 much, Michael. And at this point in time I would 13 again like to thank our speakers for being with 14 us. We really appreciate your making the time. 15 (Applause.) 16 CHAIRMAN MORGAN: And at this time I'd like 17 to turn it over to Judge Stephens to introduce our 18 next speaker. 19 JUDGE STEPHENS: I'd like to introduce our 20 CEO, Council of Superior Court Judges. He is 21 unlike many other CEOs. He has not yet been 22 indicted for anything. Not yet. Let's just call 23 him the president of our Council of Superior Court 24 Judges. 25 Judge Overstreet, who has sat on the bench KING COURT REPORTING SERVICE 96 1 in Richmond County, Augusta circuit, for over 10 2 years. He's a graduate of Mercer University Law 3 School and has worked his way up through the ranks 4 of the Council of Superior Court Judges, and I can 5 truthfully say that he is the best president we 6 have had since Walter Matthews, which is his 7 immediate predecessor. We're glad to have you 8 here and appreciate you coming to address us. 9 JUDGE OVERSTREET: Thank you, Lawton. I 10 have to say your introduction is in line with your 11 normal comments. 12 Mr. Chairman, tell me what kind of time 13 restraints. Not that I have any prolonged 14 comments, but what kind of time restraints that 15 you want to have? 16 CHAIRMAN MORGAN: We are scheduled to 17 adjourn at noon, but I think we can go 15 minutes 18 past that. 19 JUDGE OVERSTREET: But, really, I can say 20 after speaking with the Council of Superior Court 21 Judges this past weekend that they actually and we 22 really do care about protection of individual 23 rights of the citizens of this state, and I think 24 that's indicative of a little history of the 25 Commission. KING COURT REPORTING SERVICE 97 1 This Commission came into effect after the 2 Superior Court Judges proposed a resolution to the 3 Judicial Council back in June of 2000. There was 4 some delay, but I think it was the insistence of 5 the Superior Court Judges and the he court that 6 indicated that that ended up this Commission being 7 appointed in January of 2001. 8 Now, there is one thing that I've learned in 9 this position that I have in trying to travel 10 around the State and see my various Judges is that 11 this is a very diverse state. It's diverse in its 12 assets, education, the financial resources, and 13 the population. There are truly many Georgians in 14 this state. There is a lot of difference in what 15 goes on in Dillard and what goes on in Bainbridge, 16 but the consistent thing that I find in this state 17 is that most people are hard working, they are 18 sincere, and they value greatly the rights that 19 they have attained through confrontation and hard 20 work over the years, and they value their freedom, 21 and I think this goes to you Superior Court 22 Judges, also. 23 The glove of a tomato farmer up in Dillard 24 is not the same glove that is worn by the man who 25 operates a chain saw in Bainbridge. They're KING COURT REPORTING SERVICE 98 1 totally different, and I think that's reflective 2 of our state. 3 We know that indigent defense is not bad all 4 over the State. I think everybody readily agrees 5 there is some good systems in this state. There 6 are good systems, public defender systems, 7 appointed he court defender systems, and yes, 8 there are some good contract systems, also. They 9 are staffed by good, dedicated professionals. 10 I would be concerned that if the study which 11 y'all have asked Mr. Spangenberg to do groups the 12 good and the bad. I would hope that any study 13 that he has done would be specific as to how our 14 courts have proficiencies and shortcomings, and 15 how these can be improved. 16 A generalization will not do anybody any 17 good. Just like going to the mechanic. You got a 18 problem with your car and you drive it into a 19 mechanic's garage, you want to get it fixed but he 20 looks at your car and says well you just got a bad 21 car. 22 You drove it in there, but you didn't think 23 it was that bad, but you got a bad car, and that's 24 the way that I'm concerned that our report, I hope 25 our report does not reflect that. I hope there is KING COURT REPORTING SERVICE 99 1 specifics. There is specifics as to certain 2 Judges or to certain systems in this state and 3 certain counties or circuits. 4 I would hope that you would require that 5 that be pointed out so those shortcomings can be 6 addressed. It is important that the Judges of 7 this state back up and look at what they do, and 8 this report can be a great help to them, but it's 9 not going to do any good if it just says we've got 10 a bad system. 11 Is indigent defense underfunded in this 12 state? I think we all know the answer to that and 13 we all agree, but we can't fix anything unless we 14 have some guidelines, and I hope this report gives 15 us that. Rest assured, we can fix anything if we 16 had unlimited funds. 17 There are some of you in business, and you 18 know the bottom line is a profit. We're not in a 19 profit business, but you have to work within 20 certain means. Just because you don't make a 21 profit one quarter you don't immediately fire 22 everybody and send them out into the streets. 23 Georgia has a structurally sound system for 24 administration of indigent defense in this state. 25 Representation may vary from county to county, but KING COURT REPORTING SERVICE 100 1 this is due in large part to the lack of funds and 2 the availability of qualified attorneys. 3 The news media has published certain stories 4 in this state, but I don't think these are 5 indicative of the entire system, but I do agree 6 that awareness is good and leads to change. 7 Judges are bound ethically and legally to 8 protect the rights of indigent Defendants, and in 9 this state we feel like those efforts have been 10 approached within certain means. We are overseen 11 by the Appellate Courts as to make sure that 12 decisions we make as far as indigent defense goes 13 or appointed he court is complied with under the 14 law. 15 I can tell you that Judges of this state 16 take this responsibility seriously, and I state to 17 you give them the tools to do the job, the money 18 and the attorneys, and the few problems I think 19 that you do have, even though they are important 20 problems, will go a long ways towards the end. 21 Judges, and I know in the Superior Court, 22 are the ones who determine if an attorney is 23 effective, publish standards, case counts. If you 24 pay somebody an hour does not automatically mean a 25 lawyer is effective. KING COURT REPORTING SERVICE 101 1 In the last 10 years I just looked up -- 2 just taken a case and seeing how many cases that 3 we had that reflected that case. I think maybe a 4 lot of you all will understand Strickland vs. 5 Washington, which was a case in 1984 in this state 6 which basically set out a two-prong standard of 7 whether someone is effective or ineffective and if 8 you look over the past 10 years you will see that 9 the Appellate Courts in this state has about 180 10 cases in this state that raised this issue. 11 I point out to you a little more than just 12 two dozen of those cases were reversed. That 13 gives you some idea of what is actually going on 14 out there instead of just an anecdote story that 15 may appear in the news. 16 As I mentioned, I don't think one glove fits 17 all. We need an adaptive -- we need to adapt to 18 local circumstances. Everyone wants a better 19 system. 20 I'm here to say to you today that the courts 21 and the Superior Courts in this state are 22 concerned about the effects of Shelton, and we 23 think that this is very important that any state 24 that has done that reflects the effects of Shelton 25 on our courts. KING COURT REPORTING SERVICE 102 1 We're even willing to contribute certain 2 funds to see that this state addresses those 3 issues in our lower courts because it will be a 4 total recommendation as to what will be done about 5 indigent defense in this state, in short. 6 I don't think anybody around this table has 7 any disagreement about what is needed, and that 8 includes the Superior Courts of this state. We 9 need the money and we need the attorneys. 10 From a special perspective, I think the 11 attorneys have a lot more responsibility than just 12 getting paid to do these types of cases. We have 13 people come down from New York State try cases in 14 Georgia in indigent defense that is pro bono. I, 15 for the sake of me, can't see why an attorney in 16 Atlanta can't go down to Cairo and represent 17 somebody in State Court. 18 I know real estate lawyers don't do a good 19 job in litigation, but that still does not dismiss 20 their responsibility to represent the poor of this 21 state. 22 In conclusion, I think that indigent defense 23 can be improved in this state with dollars and 24 with manpower. The dollars are going to come from 25 across the street if we get it. I think the KING COURT REPORTING SERVICE 103 1 manpower has to come from the profession. 2 I thank y'all for letting me come to speak 3 today. I wanted to make comments, but I 4 appreciate any questions that you have. 5 CHAIRMAN MORGAN: Thank you very much, 6 Judge, for your comments and, again, we appreciate 7 you being here. Do any members of the Commission 8 have any questions of the Judge? Yes. 9 MR. IDE: Well, first of all, a statement. 10 A week ago I was in Moscow when we -- the American 11 Bar has a project where we're working with the 12 Soviet Union on the judicial system and under that 13 system the prosecutor rules. 14 The Judges -- our big issue is to get the 15 Judges independent of that prosecutor because 16 they're the way that system has worked all of the 17 years. When we get the Defendant from the 18 prosecutor and the Judge and then we have a 19 three-legged stool, and I think it's marvelous to 20 come back to this country to see how far we have 21 come along and how we are such a model for the 22 rest of the world, but it would be very helpful to 23 hear from the Superior Court Judges an affirmation 24 that the defense counsel is a function from the 25 prosecutors and from the Judges and that's the way KING COURT REPORTING SERVICE 104 1 the criminal justice system works. 2 And so the hiring and firing and oversite of 3 the lawyer from the indigent has to be removed 4 from the Judge in the courtroom dynamics, in my 5 view, and I would just be curious if that's the 6 view of the Superior Court Judges. 7 JUDGE OVERSTREET: I don't know if it's 8 necessarily the view, and I'll tell you why. Who 9 is going to be the advocate for the indigent in 10 this state? 11 I had two people tell me the leaders in this 12 state is our legislature and they'll tell you 13 indigent defense do not have any constituency in 14 this state, and the history of it is such that the 15 Judges have taken that burden as part of their 16 duties of their office. If there is some abuse, 17 there are ways to address that and it should be 18 addressed. 19 I come from a system that we don't really 20 participate in it, but the Tripartite Committee. 21 We do go to the County Commission to use what 22 leverage we have to get funds for that Tripartite 23 system, but you've got to find an advocate in 24 indigent defense and I don't know whether you're 25 going to find it unless you already have it. KING COURT REPORTING SERVICE 105 1 I don't try to control the way people try 2 try cases. Lord knows I'd much rather have a 3 Defendant with a lawyer than not a lawyer, and so 4 I'm all for getting them some money. I want to do 5 everything that I can to get them some money. 6 I do want the responsibility to know when 7 somebody tries a case in front of me whether he's 8 done an effective job or not. I want him to be 9 effective because if he's not effective then I've 10 got to try the case again. 11 I think these Judges are your natural 12 advocates for the indigent defense in this state. 13 I don't think there is another one out there, and 14 if there is some abuse of that I think that ought 15 to be addressed. 16 MR. KURTZ: Pursuing that line. Taking it 17 from the perspective of the Defendant. I'm now an 18 indigent Defendant. I'm sitting in court and I 19 watch the Judge appoint that man or woman to 20 represent me, okay? 21 Now, starting with the proposition that any 22 criminal Defendant who is convicted at the trial 23 is not going to be happy, presumably. What about 24 me who saw the Judge appoint the person who 25 defended me before that Judge last? Do you think KING COURT REPORTING SERVICE 106 1 that he's going to do the same thing that you do 2 about whether you're representing him or 3 advocating for him? 4 JUDGE OVERSTREET: Well, let me address that 5 one. I just finished the first of the month 6 having misdemeanor court. You can rest assured 7 that half the cases didn't get tried because we 8 turned to indigent defense and let them handle it. 9 I didn't get involved in that myself, and that's 10 the way it should be. 11 And so in my circuit I don't address the 12 Defendant and say Joe is going to represent you. 13 I turn them over into indigent defense and they do 14 it and they appoint him a he court. 15 And so no, I don't think that should occur. 16 I don't think that should occur especially in 17 front of the Defendant. One of the greatest 18 lessons that I ever had as far as indigent defense 19 goes was trying a case years ago in front of Tony 20 Alaimo. I know many of y'all know Tony Alaimo. 21 He is a fair Judge in this state. He does a good 22 job of representing the indigent defense. 23 MR. KURTZ: He does. 24 JUDGE OVERSTREET: And I think most Judges 25 feel that way, but I don't think that we ought to KING COURT REPORTING SERVICE 107 1 be in front of the indigent Defendant picking 2 that, and I think there ought to be somebody over 3 there that has that oversight and makes that 4 determination, but I still want to know who they 5 appoint, when he gets through that he's done a 6 good job and I don't have to try that case again. 7 CHAIRMAN MORGAN: Any other questions of the 8 Judge, or comments? 9 Judge, I did have one. What you just 10 touched on a little bit. It's very clear to me 11 that the Judges in this state are extremely 12 conscientious about what happens in their 13 courtroom and the rights of the accused and so 14 forth, but how does it work in terms of beyond 15 that? 16 What should the responsibility of the 17 Superior Court Judges be, if any, with regard to 18 the system, itself, by which people are appointed 19 to represent indigents and so forth? 20 In other words, for example, I don't think 21 there is any U.S. District Court Judge who doesn't 22 feel that he or she has complete control over what 23 happens in the courtroom and making sure that 24 there is a fair trial that takes place in the 25 courtroom, but the Federal District Judges don't KING COURT REPORTING SERVICE 108 1 actually run the federal defender system, and so I 2 guess the question that I have is what's the 3 appropriate role, in your view, of the Superior 4 Court Judges and actually being involved in 5 administering the system? 6 MR. POWELL: Mr. Chairman, you are obviously 7 not a member of the Southern District of Georgia 8 Bar. Judges do run that system and they appoint 9 you pro bono and you represent indigent Defendants 10 in the Federal Court of the Georgia Bar, but there 11 has got to be a start for this to go. 12 I think you need some local management of 13 indigent defense to take into consideration. As I 14 said, what goes on in Dillard and what goes on in 15 Cairo are not the same thing. I think you need to 16 adapt to the local characteristics of the 17 community in the area and you need someone there 18 to oversee that, or at least get it started, and 19 there has to be a final decision made at some 20 point in time. 21 I think the Judge's position should be 22 whatever it takes to get the system started. The 23 Tripartite Committee, I think, is a good way to do 24 that, is to get that started and to see that it 25 does get started, and in all different -- I think KING COURT REPORTING SERVICE 109 1 we still should become advocates to see that 2 they're properly funded. 3 To that extent, I think that should be the 4 Judge's job. In all due respect, though, when 5 lawyers do not conduct themselves properly, when 6 they're not effective he court, I think the Judges 7 need to step up and say they're not, and if 8 they're participating in that system they probably 9 should be withdrawn from that system. And so 10 that, in general, I think is what the Judges 11 should do. 12 MR. KURTZ: That makes sense. 13 CHAIRMAN MORGAN: Any other questions or 14 comments? All right. Well, thank you again, 15 Judge. We appreciate you being here. 16 JUDGE OVERSTREET: Thank you very much. 17 (Applause.) 18 CHAIRMAN MORGAN: And at this point we're 19 going to adjourn. The Commission is going to go 20 into executive session and we will be announcing 21 at a later time our next meeting. Yes, 22 Mr. Fuller. 23 JUDGE FULLER: Can I ask one more question? 24 I'm confused. Wilson asked his question by saying 25 that he was late. I have been here the whole KING COURT REPORTING SERVICE 110 1 time, and I really wanted to ask the professor on 2 Alabama vs. Shelton, which is the focus for us, 3 because we're interested in indigent defense and, 4 Mike, I think you were throwing out, perhaps Rick 5 was throwing out some numbers, 60,000, hundreds of 6 thousands, but for the purpose of this committee 7 we're concerned about indigent Defendants. 8 Alabama vs. Shelton has impacted on all 9 Defendants, indigent or not, correct? 10 MR. CUNNINGHAM: The right to he court is 11 the same for any criminal Defendant regardless of 12 whether or not they're indigent, but the situation 13 that was triggered by Alabama vs. Shelton is 14 someone who could not afford he court and he court 15 is not offered to that person. 16 JUDGE FULLER: All right. And in that 17 regard, again, Alabama vs. Shelton, that was a 18 sentence where a Defendant was sentenced to 30 19 days in jail, suspended upon payment of a fine. 20 Now, again, just briefly remind me, how does 21 that impact upon any Traffic Court sentence, State 22 Court, Municipal, otherwise, of a Defendant who 23 pleads guilty of speeding, a $250 fine, 12 months 24 probation unsupervised, $250 fine. That's a 25 different setting than Alabama vs. Shelton KING COURT REPORTING SERVICE 111 1 factually. 2 MR. CUNNINGHAM: But I -- if -- the question 3 is what happens if the Defendant violates any term 4 of the probation? If it's possible that the 5 person would be incarcerated for two hours because 6 they violated probation, Alabama vs. Shelton is 7 indicated. 8 JUDGE FULLER: And if that opinion went that 9 far, even though you said it was narrowly 10 restrictive of the facts of that case where there 11 was a 30-day sentence impositioned. 12 MR. CUNNINGHAM: Well, I think it's clear 13 going all of the way back to argue that the length 14 of possible imprisonment is irrelevant. It's the 15 fact of imprisonment, so that I don't think that 16 the length of incarceration is relevant and so I 17 don't think that you could limit Alabama vs. 18 Shelton to the amount of jail time that was 19 potentially imposed. 20 I also think we've discussed it. I think if 21 someone is sentenced and then given credit for 22 time served, which is quite common, I think 23 Alabama vs. Shelton is equally triggered because a 24 person has still been punished with imprisonment, 25 even if it's credited with pretrial, even if there KING COURT REPORTING SERVICE 112 1 is probation prospectively, but that's very 2 unusual. 3 But the issue that they struggled with is 4 does it make any sense to have a probation that is 5 punishable by incarceration? It's not tied to a 6 sentence of imprisonment. And that would -- there 7 was speculation that you could create something 8 like that. 9 That was the attorney general's ingenuous 10 attempt to argue that in the Supreme Court, and it 11 was certainly rejected and hypothetical, but it 12 doesn't seem at all clear that if it's a traffic 13 violation, if the person didn't pay the fine or 14 violates any of the conditions he can't be 15 incarcerated at all if they don't have a right to 16 he court, unless they waived it. 17 MR. KURTZ: Perhaps Judge Fuller's point was 18 the following. Let me try to restate it. I go to 19 traffic court, I'm charged with speeding, I'm 20 sentenced to 12 months probated, $50 -- or $100 21 fine, two years of unsupervised probation or 22 something like that, okay? 23 At that moment, and I do this without being 24 offered he court and without waiving he court, at 25 that moment Alabama vs. Shelton has been violated, KING COURT REPORTING SERVICE 113 1 correct? 2 MR. CUNNINGHAM: At least, you know, 3 Mr. Shapiro and Mr. Malone should correct me if 4 I'm wrong, but there is a difference between a 5 probated and suspended sentence, but my 6 understanding about a post conviction probation is 7 that it's tied to the suspension of a sentence of 8 imprisonment, and so that's what the probation is 9 based on. 10 MR. KURTZ: Right. It's a probated. I'm on 11 probation, I have a sentence that's been suspended 12 on the condition that I not violate my probation. 13 When that sentence -- when that judgment is issued 14 against me, Alabama vs. Shelton has been violated 15 if I haven't been offered he court or waived he 16 court, right? 17 MR. CUNNINGHAM: That, I believe, is 18 correct. 19 MR. KURTZ: But the point is, the assumption 20 is that they can't do that because back then I 21 didn't have a lawyer and I wasn't offered a 22 lawyer. 23 JUDGE BIRCH: Let me tell you how it's going 24 to come up. It's going to come up, if you read 25 Holt vs. Peltzer or Reagan vs. Saucey, I don't KING COURT REPORTING SERVICE 114 1 know how you pronounce it, the way the law is 2 going to come up now, at least in our circuit, I 3 can see a 1983 action is going to be brought. 4 It's not going to be brought for damages, it's 5 going to be brought in for injunctive relief. 6 Somebody is going to bring a 1983 action and 7 asking for injunctive relief in the federal 8 courts, I presume. 9 MR. KURTZ: To enjoin the Judge from 10 entering sentence like that. 11 JUDGE BIRCH: And under Saucey it used to be 12 we could look and see whether or not there had 13 been a clearly established right. There was a 14 mechanism, so to speak, to look at it without 15 making the decision on a constitutional issue. 16 You can't do that anymore. The Federal 17 District Court is going to have to decide the 18 constitutional issue and once they do, that's how 19 it gets established. You don't have to have an 20 appellate record. You don't have to have an 21 appeal. You don't have to go up through the 22 process. You can do it collaterally through 1983, 23 I believe. Now, that's just -- I'm not talking -- 24 MR. KURTZ: That's an advisory opinion. 25 JUDGE BIRCH: My advisory opinion. KING COURT REPORTING SERVICE 115 1 MR. KURTZ: I thought Federal Judges don't 2 issue advisory opinions. 3 JUDGE BIRCH: I don't know. I mean, it 4 seems to me that avenue may be pursued by some 5 very innovative lawyers, which you don't have to 6 be all that innovative to use it. 7 MR. MALONE: It may come up -- it seems what 8 drives the State Courts and these prior 9 convictions and things like that are the 10 suspension of license. We're going to be talking 11 about taking their license away, points on their 12 driver's license. That's what motivates the DUI 13 defense bar, is keeping the license. That 14 driver's license is more important to folks than 15 you can possibly imagine, and that might be the 16 context in which it comes up. 17 MR. KURTZ: And that would depend on the 18 validity of one or more of the prior offenses. 19 MR. MALONE: If the Department of Public 20 Safety in this state is relying on three 21 convictions where it violated their constitutional 22 rights, can they take their license? Can they 23 make them suspend their license? Can it make them 24 a habitual violator, subject them when they drive 25 an automobile? They have now committed a felony. KING COURT REPORTING SERVICE 116 1 All of that the Supreme Court of Georgia will have 2 to deal with ultimately as a result of Shelton vs. 3 Alabama. 4 JUDGE BIRCH: The analogous thing to what 5 Mr. Malone was just saying is in the federal 6 system we have a habitual statute. You can't go 7 back and use it in an uncounseled prior conviction 8 to cause somebody to suffer more punishment. 9 MR. CUNNINGHAM: Judge Fuller, did I answer 10 your question? 11 JUDGE FULLER: Yes. And, I'm sorry, one 12 more, and this is certainly a follow up to that. 13 And so we take everybody in this room, who I 14 would guess no one would be indigent as a matter 15 of law in this room, appearing before the State 16 Court of Hall County, charged with DUI, for 17 example, mandating 48 hours in jail, but for our 18 committee again we're worried about indigent 19 Defendants. 20 The right to he court applies to all 21 indigents or non-indigents, but we're worried 22 about indigent Defendants and the numbers that 23 were thrown about throughout the state apply to 24 indigent Defendants, you think? 25 MR. SHAPIRO: No. The numbers that AOC has KING COURT REPORTING SERVICE 117 1 are the total misdemeanors. You and I were both 2 there when Judge Stephens said that 95 percent of 3 the cases were Superior Courts. 4 JUDGE FULLER: Superior. 5 MR. SHAPIRO: I understand. I think Lawton 6 may have been a little high when you said that. 7 JUDGE STEPHENS: I hadn't had a thing to 8 drink all day. Not on drugs either. 9 MR. KURTZ: We didn't know how drunk he was 10 until one day he showed up sober. But the point 11 is, is it not, that it is a given or an accepted 12 premise that with regard to traffic offenses or 13 all of those the percentage of indigents in that 14 population is lower than 95 percent? 15 MR. SHAPIRO: I think we all can assume in 16 the traffic settings we have less indigents 17 because they have a car. This is how they enter 18 the State Court system is a traffic offense. Do 19 they still need to be screened to see whether 20 they're indigent? Absolutely. Do you need to get 21 a waiver if you're not going to give them he 22 court? You still can't take a plea under Tucci 23 without a good waiver. 24 MR. CUNNINGHAM: But your point about the 25 indigent defense connection is that you have a KING COURT REPORTING SERVICE 118 1 court that has a policy of not providing free he 2 court to indigent people which I gather, for 3 example, through most of the Municipal Courts in 4 the state, according to my conversation with the 5 vice president, then right off the bat you know 6 that the Sixth Amendment is being consistently 7 violated whereas apart from the indigent defense 8 situation you have a case-by-case waiver 9 situation. 10 But you're not talking about a waiver if 11 they're indigent and you're saying we are not 12 going to pay for getting you a lawyer. The 13 question of waiver doesn't even come up, it seems 14 to me, and what I think you have pervasive in many 15 states is policy that we don't provide lawyers to 16 indigent people for certain categories of cases, 17 or certain types of courts, and so that's why it's 18 such a stark indigent defense issue, I think. 19 CHAIRMAN MORGAN: Yes. 20 MR. HUNT: Two-part question. You said 21 earlier -- this could be to any of you, but that 22 one way possibly around Alabama vs. Shelton 23 legislatively would possibly be to change the 24 punishment available to misdemeanors to jail time, 25 right? KING COURT REPORTING SERVICE 119 1 And so that's one way to address the problem 2 other than through a set of indigent defense 3 systems or other kind of defense system. What if 4 well there is something like a traffic situation 5 in which offenses No. 1 and No. 2 are punishable 6 only by time, of jail time? The third one creates 7 a habitual offender so that its mandatory 8 incarceration provision may be suspended or may be 9 probated. 10 MR. CUNNINGHAM: I think that's if there is, 11 you know, misdemeanor is the name of the crime, 12 and it's only punishable by up to a $500 fine, 13 period. 14 MR. HUNT: But the third time you get a 15 misdemeanor you're zapped? 16 MR. CUNNINGHAM: Right, but there is a 17 misdemeanor C, which has the same elements except 18 that you have been previously convicted at least 19 twice, and that carries incarceration. I think 20 that it is different than what Mr. Malone was 21 talking about. 22 I don't think there is any problem using the 23 first two convictions of the fine in Alabama vs. 24 Shelton. No. It's only the third, but, of 25 course, the larger question is that to get away KING COURT REPORTING SERVICE 120 1 from this concern about well, you know, there are 2 jurisdictions in the State that generate revenue 3 county-wide in speeding is that it's important 4 that a huge amount of law enforcement takes place 5 out there, which is a terrible, terrible problem 6 or violation area. You don't want to take away 7 from the courts the power of incarceration in that 8 sort of a situation. You want that power there. 9 You want effective law enforcement, okay? And you 10 probably want it for lots of other things, too. 11 And so I think that taking away the 12 incarceration option, you know, of course it makes 13 it hard to collect fines and restitution because 14 you don't have a hammer, but I think that's a 15 distraction to the more important issue, which is 16 real criminal justice in law enforcement is 17 happening at this level, but it needs to happen 18 well. 19 CHAIRMAN MORGAN: Bob? 20 MR. SPANGENBERG: Mr. Chairman, I just want 21 to answer that several states have recodified 22 their misdemeanors. Washington State being one, 23 New Hampshire being one. 24 And the process in Washington State involved 25 the prosecutors, but to try to determine which of KING COURT REPORTING SERVICE 121 1 the misdemeanors are on the books does no Judge 2 ever impose a sentence, but by the nature of the 3 fact that it's there in the statute, possible 4 sentence, he court must be appointed. 5 And so they remove some of the really old 6 and worn out crimes and some of the newer ones 7 that, by general agreement among prosecutors, 8 Judges and lawyers were no longer enforced by way 9 of jail, and so -- 10 MS. BEAMAN: But there is still some 11 contempt in there. 12 CHAIRMAN MORGAN: I think they still have it 13 in New York. When I started practicing there they 14 had something called adjournment in contemplation 15 of dismissal. 16 MR. SPANGENBERG: That's after original 17 filing. 18 MR. CUNNINGHAM: But that's a form that 19 we're probably familiar with, but I think the 20 cleanest form is the case never leaves the 21 prosecutor's office, which is the way it works in 22 the federal system, where there is a certain 23 issue. 24 MR. KURTZ: But, Bob, precisely the -- if 25 Georgia were to pursue that route, the Washington KING COURT REPORTING SERVICE 122 1 route, by definition if these are all cases in 2 which there is very rarely jail time imposed then 3 I suspect it's also true that there is not very 4 many prosecutions of them either. 5 MR. SPANGENBERG: Well, that's not true. In 6 Washington, this is now 10 years ago, long before 7 Shelton, what would happen to a study Commission 8 created by the legislature, they were actually 9 able to get the misdemeanor data by type of case 10 throughout the State and look at the dispositions 11 on those cases, and the goal was to try to pick 12 the misdemeanors that had the largest number of 13 prosecutions for which there was no jail time. 14 MR. KURTZ: With the lowest number of -- 15 MR. SPANGENBERG: It typically included all 16 of the traffic offenses. 17 MR. CUNNINGHAM: A good example would be 18 housing code violations. Typically ordinance 19 violation. It is very unusual for a Judge to 20 incarcerate a landlord for a housing violation, 21 but it's serious law enforcement handling it in 22 terms of the criminal justice method. 23 They ought to give those Judges different 24 tools as escrowing rents and receivership and so 25 on so that it would be serious law enforcement in KING COURT REPORTING SERVICE 123 1 which incarceration doesn't fit very well, but 2 again under Alabama vs. Shelton every time you 3 have a homeowner or a landlord coming in for a 4 housing code violation, Alabama vs. Shelton will 5 kick in. 6 MR. SPANGENBERG: Just one other point. In 7 Oregon and some other states the prosecution is 8 given discretion in certain other cases, either 9 file it as a violation or a misdemeanor, and if 10 they file it that's in the discretion of the 11 prosecutor. 12 If they file it as a violation, originally 13 file it as a violation there is no -- there can be 14 no jail. 15 If they filed it as misdemeanor it has a 16 potential of jail, and what happened when they did 17 that was the study that's done after that 18 indicated that prosecutors in the large urban 19 districts used that, quite frequently, but it 20 wasn't used very often in the smaller rural 21 counties, just because of the difference of the 22 effect or the nature, but it actually did save a 23 lot of money. I'm not suggesting that as an idea. 24 25 KING COURT REPORTING SERVICE 124 1 CHAIRMAN MORGAN: All right. Well, we're 2 adjourned. Thank you again very much. 3 4 (Hearing conclude at 12:26 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 125 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 30th day of September, 2002. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE