1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 1 2 SUPREME COURT COMMISSION ON INDIGENT DEFENSE 3 4 5 6 September 19, 2001 7 9:30 a.m. 8 9 10 11 Supreme Court of Georgia 12 Judicial Conference Room 244 Washington Street 13 Atlanta, Georgia 30334 14 15 16 17 18 19 REPORTED BY: DIANE KING, CSR, B-1957 20 21 22 KING COURT REPORTING SERVICE 23 125 COLONADE AVENUE, SUITE 1-B ATLANTA, GEORGIA 30331 24 (404) 344-7855 25 2 1 MEMBERS PRESENT: 2 MR. CHARLES R. MORGAN, Chairperson 3 PROFESSOR PAUL KURTZ JUDGE C. ANDREW FULLER 4 MS. PHYLLIS HOLMEN MR. JERRY GRIFFIN 5 REPRESENTATIVE PAUL HOLMES JUDGE A. HARRIS ADAMS 6 JUDGE STANLEY F. BIRCH MS. FLORA DEVINE 7 MR. ROBERT E. KELLER MR. C. WILSON DUBOSE 8 MR. CHARLES T. LESTER, JR. MR. HOWARD O. HUNTER 9 GUESTS PRESENT: 10 CHIEF JUSTICE NORMAN S. FLETCHER 11 MR. JAY B. MARTIN, AOC MS. PHYLLIS BLANTON, AOC 12 MS. TRISHA RENAUD, FULTON DAILY REPORT MR. FRED D. TAYLOR, SCLC/GEJ 13 EMILY W. WARD, BELLSOUTH MS. KENDALL BUTTERWORTH, BELLSOUTH 14 MS. RUTH FIFE, BELLSOUTH MR. MICHAEL B. SHAPIRO, GIDC 15 MR. JIM THOMPSON, BELLSOUTH MS. SARA TOTONCHI, GEORGIANS FOR EQUAL JUSTICE 16 MS. KATE WEISBURD, SOUTHERN CENTER FOR HUMAN RIGHTS 17 MR. ROBERT HOLT, ANTIOCH COLLEGE MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN 18 RIGHTS MS. MARION CHARTOFF, SOUTHERN CENTER FOR HUMAN 19 RIGHTS MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN 20 RIGHTS REVEREND TIM REED 21 MR. LARRY WHITE MR. SAMUEL BURRELL 22 MR. JOHN COLE-VODICKA, PRISON & JAIL PROJECT MS. SANDRA WITTY, HOWE RESEARCH 23 MR. WARREN GOODWIN MS. SARAH SMITH, GIDC 24 MS. AIMEE MAXWELL, GIDC 25 KING COURT REPORTING SERVICE 3 1 GUESTS PRESENT: 2 MR. TOM BOLLER, STATE BAR MS. HELEN ASKEW, OFFICE OF BAR ADMISSIONS 3 MR. BUDDY DARDEN MR. LANCE STEWART, SOUTHERN CENTER FOR HUMAN 4 RIGHTS 5 PRESENTERS: 6 7 OVERVIEW OF THE GEORGIA INDIGENT DEFENSE COUNCIL 8 MR. MICHAEL B. SHAPIRO, EXECUTIVE DIRECTOR, GEORGIA INDIGENT DEFENSE COUNCIL 9 VIDEOTAPE: PERSPECTIVES ON INDIGENT DEFENSE IN 10 GEORGIA 11 MR. C. WILSON DUBOSE 12 MR. WARREN GOODWIN, TECH EDITOR, ATLANTA INDEPENDENT MEDIA CENTER 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 CHAIRMAN MORGAN: Good morning. I'd like to 3 convene this meeting for the Indigent Defense 4 Commission. 5 I thank you all for being here. We're going 6 to go around the room and introduce ourselves as 7 we typically do, but before we do that first I 8 would just like to make one remark, and that is I 9 think it's appropriate at this point in time after 10 last week's tragic events in New York that we just 11 take a moment and think about the system of 12 justice that we have in our country, and that it's 13 one of the most important values and things that 14 we have in this country that we're proud of. 15 And so I know I speak for all of the members 16 of the Commission to say that we're very 17 appreciative to the Court for giving us the 18 opportunity to assist the Court in looking at the 19 system of justice in our great state, and we 20 appreciate that, and we take our responsibility 21 very seriously. 22 So with that, again, I'd like to thank 23 everybody for being here and we're very pleased 24 that the Chief Justice is with us this morning, 25 and would like to make a comment. KING COURT REPORTING SERVICE 5 1 CHIEF JUSTICE FLETCHER: Thank you, Charles. 2 I just, once again, want to tell you how much we 3 appreciate your dedication and what you're doing. 4 It's an awesome task, and in order to help you 5 with this we have decided to add a little more 6 person power onto your Commission, and I'm very 7 pleased. 8 I talked with the leadership of the District 9 Attorneys Association and they have sent us a new 10 member that we are all -- most all of us know and 11 we are very thankful that Bob Keller has agreed to 12 serve on the Commission. 13 He is not only an excellent District 14 Attorney, he is a very wise gentleman and he knows 15 things around the Capitol very well, and we 16 appreciate Bob coming on. 17 I've also appointed Bill Lyde, who is the 18 former president of the American Bar, who is now 19 back in Atlanta after having served as general 20 counsel for Monsanto. I think he was the vice 21 president, general counsel there. And Bill was 22 very active in indigent defense studies back in 23 the 1970s, and he has agreed to come on board. 24 We probably may add another person or two 25 also along the way to assist you. Also, I want KING COURT REPORTING SERVICE 6 1 you to know that we understand this is a difficult 2 task and it might take longer than we originally 3 anticipated, and that's fine because the finished 4 product we hope it will be something that not only 5 you will be proud of, but it is something that can 6 be accepted and will be accepted favorably by the 7 trial Judges, by the District Attorneys, by 8 defense counsel, by all those who are interested 9 in indigent defense in this state. 10 And so -- and one other thing. I also want 11 you to know that the Court is going to find the 12 method of providing whatever means of resources 13 that are needed for this Commission, whether it's 14 some outside professional help to help you in 15 gathering data, but we are totally supportive of 16 everything that you're doing, and we're going to 17 find the resources that are necessary to help you 18 do the job that I know you want to do. 19 And so, again, just thank you for what 20 you're doing, and with that I'm going to go to 21 work. 22 CHAIRMAN MORGAN: Thank you very much, 23 Justice. And with that I'd like to start off by 24 what we've typically done as our tradition is to 25 go around and ask the Commission members just to KING COURT REPORTING SERVICE 7 1 briefly introduce themselves and then we'll go 2 around the room and have a brief introduction. 3 And so, Mr. Reporter, if you would start? 4 MR. SHAPIRO: I'm Paul Kurtz. I'm the 5 reporter for the Commission and I'm a member of 6 the faculty of the University of Georgia law 7 school. 8 JUDGE FULLER: I'm Andy Fuller. I'm a trial 9 court Judge out of Hall County and Dawson County 10 Superior Court. 11 MR. KELLER: I'm Bob Keller, and I'm the 12 District Attorney for Clayton County. 13 JUDGE BIRCH: I'm Stan Birch. I'm a Federal 14 Appellate Judge here in Atlanta. 15 MR. HUNTER: I'm Woody Hunter. I'm on the 16 law faculty at Emory and Provost. 17 REPRESENTATIVE HOLMES: I'm Paul Holmes. 18 I'm with the Life of the South and I live in 19 Monticello, Georgia. 20 MR. GRIFFIN: I'm Jerry Griffin, Association 21 of County Commissioners of Georgia. 22 MR. DuBOSE: My name is Wilson DuBose. I'm 23 in private practice in Atlanta with Winkler, 24 DuBose and Davis. 25 CHAIRMAN MORGAN: Why don't we continue over KING COURT REPORTING SERVICE 8 1 here. 2 MS. EDWARDS: I'm Marcy Edwards from the 3 Atlanta Constitution. 4 MR. COLE-VODICKA: I'm John Cole-Vodicka. I 5 live in Americus, Georgia, and I work with the 6 prison and jail population. 7 MS. WITTY: I'm Sandra Witty and I'm at the 8 Georgia House of Representatives research office 9 and our office staff is the appropriations 10 committee. 11 MR. DARDEN: I'm Buddy Darden. I'm an 12 attorney in Atlanta representing the Governor's 13 office pro bono. 14 MR. BOLER: I'm Tom Bollen representing the 15 State Bar. 16 MS. MAXWELL: I'm Aimee Maxwell. I'm 17 director of special education at the Georgia 18 Indigent Defense Council. 19 MR. GOODWIN: I'm Warren Goodwin. I'm with 20 the Atlanta Independent Media Center and I'll be 21 having a video for you to watch. 22 MR. BURRELL: My name is Samuel Burrell. 23 I'm part of the Georgians for Equal Justice System 24 and lots of more. 25 MR. WHITE: Larry White, NAACP. KING COURT REPORTING SERVICE 9 1 MR. REED: Tim Reed, Peoples Agenda. 2 MR. BRIGHT: My name is Stephen Bright, 3 Southern Center for Human Rights here in Atlanta. 4 MS. CHARTOFF: Marion Chartoff, Southern 5 Center for Human Rights. 6 MR. RUNDLET: I'm Alexander Rundlet, 7 Southern Center for Human Rights. 8 MS. WEISBOURD: Kate Weisbourd, Southern 9 Center for Human Rights. 10 MR. THOMPSON: Jim Thompson, attorney with 11 BellSouth Corporation. 12 MS. FIFE: I'm Ruth Fife, also attorney with 13 BellSouth. 14 MS. BUTTERWORTH: I'm Kendall Butterworth 15 and I'm an attorney with BellSouth. 16 MS. WARD: Emily Ward presently with 17 BellSouth. 18 MR. TAYLOR: I am Fred D. Taylor with the 19 Southern Christian Leadership Conference. I am 20 the SCLC representative with the Coalition for 21 Georgians for Equal Justice. 22 MR. HOLT: Bobby Holt, Southern Center for 23 Legal Justice. 24 MR. MARTIN: I'm Jay Martin, Deputy Director 25 of Administrative Office of the Courts. KING COURT REPORTING SERVICE 10 1 MR. SHAPIRO: I'm Mike Shapiro, Executive 2 Director, Georgia Indigent Defense Council. 3 MS. BLANTON: Phyllis Blanton, 4 Administrative Office of the Courts. 5 Joe Biggs, Antioch Baptist Church, Rainbow 6 Christian Coalition. 7 CHAIRMAN MORGAN: Thank you very much, 8 everyone. And I think Mr. Martin had a couple of 9 administrative announcements for us. 10 MR. JAY MARTIN: Yes. Obviously, with the 11 security that we have increased in the building, 12 one of the things -- a couple of things that we 13 need to do administratively is we need to stay out 14 of the Supreme Court clerk's area, which is that 15 door over there, and when you come the next time 16 we have these meetings you want to come through 17 the judicial building, through the security up to 18 this floor, through the crossover into this area. 19 Also, the restrooms are in the judicial 20 building on the fifth and sixth floor, not back 21 through the clerk's office, which is really kind 22 of off limits for now. Thank you. 23 CHAIRMAN MORGAN: I might also say that we 24 have had one meeting at another location at the 25 Carter Center and if anyone on the Commission or KING COURT REPORTING SERVICE 11 1 guests have suggestions or ideas about other 2 venues we would be happy to entertain that. 3 I think there is a possibility that we may 4 be going back, for example, to the Carter Center 5 sometime for one of our future meetings. 6 Are there any other announcements by any 7 member of the Commission before we get started? 8 All right, then. 9 Well, I'm pleased to introduce Michael 10 Shapiro again, and Michael is the Executive 11 Director of the Georgia Indigent Defense Council. 12 And Michael, we appreciate your being here. We 13 look forward to your remarks. 14 MR. SHAPIRO: Thank you, Charles. Good 15 morning and thank you for inviting me back. I've 16 prepared a short Power Point presentation, and 17 lawyers don't know what short is. We admit that 18 we don't know what these truly are. 19 Charles and Kendall asked me to give you a 20 history of the indigent defense programs in 21 Georgia, and also the status on where we are now, 22 and a little taste of where we might be headed. 23 I'm going to build on the materials that 24 y'all got back in February when you were kind 25 enough to let me speak and give you a foundation KING COURT REPORTING SERVICE 12 1 of indigent defense in Georgia. 2 Currently, the state's leading organization 3 on indigent defense is the Indigent Defense 4 Council. Flora Devine, who is on the Commission, 5 is our chairperson. She is one of 10 attorneys. 6 There are attorneys selected from each of the ten 7 judicial administrative districts. 8 We have three non-lawyers selected from the 9 state at large, and there are two representatives 10 of County Commissioners. One from the 11 metropolitan area and one from a non-metropolitan 12 area, and that is set with George Cole. 13 I've given you a list of who the counsel 14 members are and the districts that they're from. 15 We are fortunate to have two Judges, two members 16 of the State Bar's Board of Commission -- I'm 17 sorry, Board of Governors, we have the past 18 chairperson of the State Bar's criminal law 19 section, a wide variety of people. Faculty at 20 Kennesaw State University and Emory University. 21 It's a very good mix of folks. 22 Indigent defense in Georgia prior to 1968 23 was very haphazard. In '68 the Criminal Justice 24 Act was passed. It required the Courts to provide 25 indigent representation. Provided the Courts -- KING COURT REPORTING SERVICE 13 1 required the Courts to set up compensation and to 2 approve expenses. Let the Courts determine the 3 competence of counsel after they were assigned, 4 and mandated that the counties budget for indigent 5 defense. 6 This is the first time that Georgia 7 legislatively declared that it is the county's 8 responsibility as opposed to the state's 9 responsibility. Of course, this was five years 10 after Gideon vs. Wainwright. 11 Some 11 years later the Indigent Defense Act 12 of 1979 was passed. It created the Indigent 13 Defense Council. It declared that it was a policy 14 of the state. In 17-12-31 it declared more than a 15 dozen different aspects of the state policy to 16 provide the constitutional guarantees of the 17 rights of counsel and equal access to the Court. 18 Adequate defense services, adequate 19 compensation, guidelines, and flexibility within 20 them, local responsibility to provide fair and 21 adequate defense, independence of counsel, 22 training, recovery of public funds when people 23 improperly got counsel, equitable distribution of 24 funds, that the state be responsible for funding 25 the indigent defense system established within the KING COURT REPORTING SERVICE 14 1 article, development and control of local 2 tripartite programs, reasonably early entry and, 3 finally, where feasible, to use local members of 4 the bar. 5 Twenty-two years later this is still the 6 system we're using. Council was created in '79. 7 It did not receive its first funding until 1989. 8 That was $1 million and it was both, for our 9 operations and to provide funding to the counties. 10 Currently we receive $5.39 million from the 11 state strictly for the counties. We receive 12 $1,032,000 to fund the death penalty division, and 13 we receive Georgia Bar Foundation or IOTA funds, 14 interest on lawyers trust account funds that funds 15 the rest of the operation. The other six 16 divisions for counsel. 17 Also, in 1989 the Supreme Court created the 18 the "Guidelines." The Guidelines cover about 15 19 or 16 pages. They were provided to you in the 20 books that you first got when the commission was 21 formed. If you need another copy we'll be happy 22 to provide them for you. And much of this 23 information is available on our Web site, GIDC 24 dot-com. 25 But the guidelines were created in 1989 as KING COURT REPORTING SERVICE 15 1 originally contemplated in the Indigent Defense 2 Act of 1979, and the act itself specifies how 3 those guidelines are created. 4 There seemed to be some confusion last month 5 when one of the people who spoke said that there 6 were regulation changes many, many times. In 7 fact, the guidelines -- I'm sorry, the Indigent 8 Defense Act has only been modified a handful of 9 times and mostly clerical stuff. 10 But in 1992 probably the most significant 11 change was that the multi-county public defender 12 office, our death penalty division was created, 13 and they are, in fact, our largest division. They 14 comprise fully one-third of our staff and their 15 budget is at least one-third of our budget. 16 We represent Defendants all over the state. 17 We track every single death penalty case whether 18 it's at the trial or post-conviction level, and we 19 assist attorneys all over Georgia in death 20 penalty. 21 In 1993 the council was increased to the 15 22 members that are on it now. Originally County 23 Commissioners were not on it. I'm sure that 24 offended Jerry. And so a non-metropolitan and 25 metropolitan area council member were added. KING COURT REPORTING SERVICE 16 1 In 1993 a second way of funding was created. 2 Originally when the Indigent Defense Act was 3 created there was only one way to fund a county, 4 and that was if they had a tripartite committee. 5 A tripartite committee is made up of equal 6 representatives of Superior Court Judges, the 7 County Commission, and the local bar association. 8 And it can be multiples of three. It can be three 9 in some cases in the state. There are six 10 members. The tripartite committee was the only 11 way that we could fund. 12 In 1993 the code was changed to allow the 13 Indigent Defense Council, at the request of the 14 majority of the Superior Court Judges in any 15 circuit, and including the Chief Judge of that 16 circuit, to fund a pilot project that we 17 administered. 18 And, in fact, that was the way that Fulton 19 County was funded for several years. It was the 20 only way Fulton County could have been funded 21 because they did not have a tripartite committee. 22 Also, in 1993 tripartite committees were 23 allowed to exceed themselves. In the past they 24 had only been allowed to sit for one term. 25 In 1994 the code was clarified by adding KING COURT REPORTING SERVICE 17 1 17-12-38.1. It specifies the types of cases where 2 counsel is supposed to be provided. All felony 3 cases, those misdemeanor cases where indigents are 4 guaranteed the right to counsel in all actions, 5 and it describes delinquencies, deprivations, 6 terminations, and so on within the juvenile 7 courts. Finally, in 1996 our Mental Health 8 Advocacy Division was added by the legislature. 9 We talked a little bit earlier about the 10 guidelines. The guidelines cover seven different 11 areas: The availability of counsel; structure of 12 the local programs; that competent and effective 13 counsel be provided; the funding and how we 14 distribute the funding; physical management within 15 the local programs; caseload control, and then 16 finally, standards of performance which have been 17 reserved. They have never been adopted. 18 This is the code section that talks about 19 how the guidelines are adopted or modified. It 20 says that they are to be proposed by the Indigent 21 Defense Council to the Supreme Court, and that we 22 are supposed to invite suggestions from the State 23 Bar, the Council of Superior Court Judges, the 24 Council of Juvenile Court Judges, the State Court 25 Judges, and the Prosecuting Attorneys' Council. KING COURT REPORTING SERVICE 18 1 It's the only time that I'm aware of in the 2 code where one agency or one group has to ask its 3 counterpart, its opposite member if you will, for 4 advice and suggestions. 5 In practice, what the council has done is 6 the staff where the council recommends a 7 modification, that modification is taken up at a 8 quarterly council meeting. If approved by the 9 council it is then sent out verbatim to the 10 directors of the bar, the three Judges councils, 11 and to the Prosecuting Attorneys' Council. 12 We wait for a notice and comment period of 13 90 days, if you will, and the issue is taken back 14 up at the next regularly scheduled Indigent 15 Defense Council meeting. If negative comments 16 have not been received and the council decides to 17 go forward it is then approved to be passed on to 18 the Supreme Court for their consideration, and 19 that is the practice that we have always done. 20 MR. KURTZ: Michael, how often, off the top 21 of your head, or maybe written on paper, how often 22 has that happened? 23 MR. SHAPIRO: Four times. 24 MR. KURTZ: Okay. 25 MR. SHAPIRO: But thank you, Paul. I need KING COURT REPORTING SERVICE 19 1 it straight, man. I really do. Four times, and I 2 was a little bemused when I heard last month that 3 we constantly change our regulations. 4 In fact, my knowledge of the research -- 5 I've only been with the council for five and a 6 half years, but as far as I can tell the 7 guidelines have only been changed four times and 8 the last time it was changed was almost two years 9 ago. 10 And the last time -- what I've done is 11 reverse chronological order. These are the most 12 current. There were three changes made in 13 November of 1999, and it was following a committee 14 that included Judges, both State and Superior 15 Court, County Commissioners, county attorneys, 16 three members from the Attorney General's office. 17 Mr. Martin, who testified here last month 18 represented the District Courts, administrators, 19 and the council of Superior Court Judges on the 20 committee. 21 Mr. Mear, who is the head of our death 22 penalty division, that I was fortunate enough to 23 be on, it was chaired by Justice Hunstein. And 24 I'm sure that I've forgotten some people, but 25 there were probably 15 or 18 people on the KING COURT REPORTING SERVICE 20 1 committee. 2 And that committee considered a number of 3 things and made three specific recommendations to 4 the Court. One, to eliminate fee caps entirely. 5 They had been amended about eight months before, 6 but fee caps were out of date. Leave it to the 7 sound discretion of the program or, if necessary, 8 to the Court on what the fees should be. 9 That fees in death penalty cases should be 10 higher than the rate provided in Guideline 2.6 11 that's currently $45 an hour out of court, $60 an 12 hour in court. 13 Now, the Supreme Court didn't specify how 14 high those fees should be, but clearly death 15 penalty cases warrant a higher fee. 16 And the third part was that attorneys 17 working on an hourly basis must submit itemized 18 bills specifying their work on a case, and if that 19 bill is reduced, whether it be by an independent 20 defense administrator, the tripartite committee, 21 or the Court, that the reduction be similarly 22 itemized. 23 JUDGE BIRCH: Did the guidelines provide for 24 -- you're talking about caps here -- minimum fees 25 for the organization? KING COURT REPORTING SERVICE 21 1 MR. SHAPIRO: Not in a flat flee setting. 2 The guidelines provide for minimum fees in an 3 hourly setting. 4 JUDGE BIRCH: Yeah, that's what I thought. 5 MR. SHAPIRO: Yeah. And one of the things 6 that the committee considered, I think it was 7 Judge Crey from down in Henry County, said that 8 they have a hybrid program. They have a flat flee 9 arrangement until the case goes beyond 10 arraignment. 11 If it's going to be tried then it moves to 12 an hourly basis, and he thought that the flat fee 13 arrangement protected attorneys in cases that 14 didn't require a tremendous amount of time because 15 there was a threshold on the fee. 16 And there were some on the committee that 17 were advocating to explicitly abolish flat fees. 18 The committee decided not to do that. So that was 19 the last change. It was November two years ago. 20 Prior to that Guideline 2.6 had been 21 changed. Two parts to it. One of which is now 22 absolete, and that is the adjustment of the fee 23 caps. It moved $35 an hour out of court up to 24 $45. And $45 an hour in court up to $60 an hour. 25 The numbers had not been changed since 1989. KING COURT REPORTING SERVICE 22 1 And so here it was 10 years later finally 2 catching up and all it did was catch up for 3 inflation. Probably not even if you look at the 4 numbers. Before that in October of '98 a change 5 had been made to benefit the county. In the past 6 the guidelines had required them to provide 7 statistics three times a year. In the practice we 8 had only been asking for them once with the 9 funding application. And so this was a 10 housekeeping provision. 11 And then the time before that -- I'm sorry, 12 in addition to that the caseload controls were 13 specified. Originally the guidelines had talked 14 about using the American Bar Association's 15 standards for providing defense services, and 16 those are the standards that have caseload 17 limitations in them. 18 A full-time public defender should handle no 19 more than 150 felonies, or 300 misdemeanors, or 25 20 appeals, or 60 we would call them juvenile 21 terminations, termination of parental rights, or 22 250 juvenile delinquency cases per year. The 23 guideline had referenced it but never spelled it 24 out. 25 The current version of 6.1 recommends those KING COURT REPORTING SERVICE 23 1 explicitly, but also talks about ways that the 2 county might have a program where an attorney's 3 caseload exceeds those numbers. 4 If the District Attorney has an open file 5 policy, the District Attorney routinely enters 6 into negotiated pleas. If there is adequate 7 support staff including investigators and 8 paraprofessionals. 9 Prior to that in 1997 was the first time 10 that I'm aware that the guidelines had been 11 modified since they were originally created in 12 '89. 13 The first thing was we linked up with the 14 Department of Health and Human services poverty 15 standards. The federal poverty threshold. 16 The guidelines had had a limit of $500 and 17 it had never been changed. The process of 18 changing the guidelines is somewhat cumbersome. 19 You heard me talk about how the council considers 20 it. We send it out to five different 21 organizations for notice and comment. The council 22 considers it again. And then it goes into the 23 Supreme Court. 24 It seemed logical to tie in to the federal 25 poverty levels and that's what we've done, and KING COURT REPORTING SERVICE 24 1 currently that number is approximately $725 a 2 month. 3 CHAIRMAN MORGAN: Mike. 4 MR. SHAPIRO: Yes, Charles. 5 CHAIRMAN MORGAN: Mike, I don't want to take 6 up too much of your program, but in terms of 7 caseload. Are you aware of situations in the 8 State of Georgia where attorneys are substantially 9 above the guidelines such that, in your view, the 10 quality of representation is impacted? 11 MR. SHAPIRO: Yes, sir. 12 CHAIRMAN MORGAN: And how does the 13 Commission look at that issue? 14 MR. SHAPIRO: We are aware of situations 15 where attorneys are at twice and in some cases 16 approaching three times the recommended caseload. 17 It cannot have any other possible 18 consequence for impacting their ability to 19 adequately represent the people. In some cases 20 those attorneys are working in more than one 21 county. 22 We are aware of a situation where a father 23 and son team now with the assistance, I think, of 24 the daughter-in-law are handling cases in five 25 counties, and a caseload approach often exceeds KING COURT REPORTING SERVICE 25 1 800 cases a year. 2 In prior years before the daughther-in-law 3 came into the program the father and son handled 4 about 825 cases across those five counties in one 5 single year, and they claim that their indigent 6 defense representation is only one half of their 7 practice. 8 Case loads are a problem. And I'm not 9 saying that when you hit 151 cases, or 150 you can 10 close the door and you can't take the 150 first. 11 By the same token we need to be mindful that 12 nobody can handle a caseload much in excess of 13 that and do it adequately, and where that number 14 is, where that shut-off point is, I don't know. I 15 wouldn't profess to know. 16 Later on in the materials and some of the 17 handouts that Sarah has prepared for y'all we have 18 given out a monograph last month that Bob 19 Spangenberg had written for the Department of 20 Justice. 21 There are 15 states that have caseload 22 standards, and Georgia fits right in the middle of 23 those. Our numbers are not out of whack in either 24 direction. They're not very high, they're not 25 very low, and by adopting the ABA standards we KING COURT REPORTING SERVICE 26 1 thought that we were using the national standards. 2 CHAIRMAN MORGAN: You're saying that the 3 practice is in that range or our guidelines are in 4 that range? 5 MR. SHAPIRO: Our guidelines are within the 6 norm; that the 150 felonies -- some states have 7 higher or lower because they have different 8 classes of felonies. 9 For example, in New York I think they have A 10 through F with F being close to what we would 11 consider a high and aggravated misdemeanor. And 12 so if you're handling cases like that New York 13 says that you can handle more. 14 CHAIRMAN MORGAN: Just a follow-up and then 15 Judge Birch has a question, but just a follow-up 16 first. 17 MR. SHAPIRO: Sure. 18 CHAIRMAN MORGAN: Any thoughts or advice for 19 the Commission? How do we go about looking at 20 this, getting a handling on the question of 21 caseload, and whether that has a negative impact? 22 MR. SHAPIRO: I wish there were an easy 23 answer, Charles. Caseload has to have an impact. 24 There are many things that are affecting indigent 25 defense in Georgia. A lack of competent -- enough KING COURT REPORTING SERVICE 27 1 competent attorneys. 2 There are several wonderful, hundreds of 3 wonderful attorneys in the state. The problem is 4 there were 169,000 indigent cases last year. We 5 need expert witnesses. We need access to them. 6 We need training. 7 The Indigent Defense Council on professional 8 education division hosts more seminars on criminal 9 law and juvenile law than all of the other 10 providers combined, and we do it typically at $25 11 a session because we want you to be trained. 12 But any attorney. Clarence Darryl can't 13 handle a caseload of 350 cases. It's just not 14 possible. What that mile marker is, how we 15 approach that mile marker, I don't know. 16 Flora was in a meeting, and maybe some 17 others in this room, about a year and a half ago 18 where the Chief Justice looked me dead in the eye 19 and said, "Caseload guidelines are aspirational." 20 That's not the way they were written. They were 21 written as recommendations, but I don't know 22 whether they have any meaning. 23 CHAIRMAN MORGAN: But the thing that, it 24 seems to me, that the Commission has to get at is 25 this anecdotal. Are there two cases, two KING COURT REPORTING SERVICE 28 1 instances in Georgia where there is two lawyers 2 who are way above the case law, or are there a lot 3 all over the state? I mean, it seems to me that's 4 what the Commission -- one of the things that the 5 Commission has to try to get a grip on. 6 MR. SHAPIRO: Two years ago I wrote to 7 approximately 35 counties. Every county that was 8 serviced by a public defender office and 9 approximately 15 counties that were serviced by a 10 contract defenders because their caseloads were 11 twice the recommended allowance. It's a big 12 problem. 13 CHAIRMAN MORGAN: Judge. 14 JUDGE BIRCH: Let me drop back a minute and 15 ask you a little more fundamental sort of thing. 16 This on a county-by-county basis that they 17 receive funds if they -- help me with the basic 18 thing. 19 MR. SHAPIRO: Sure. 20 JUDGE BIRCH: As I understand it, you all 21 were set up. You got these guidelines. I 22 understand there are certain counties in Georgia 23 that just don't participate. 24 MR. SHAPIRO: Currently there are seven 25 counties that have elected not to apply for funds. KING COURT REPORTING SERVICE 29 1 We have reached -- the highest number that we've 2 ever had this year. 152 counties are receiving 3 funding and they will get approximately $7 million 4 from this. 5 JUDGE BIRCH: $7 million for all of the 152 6 counties? 7 MR. SHAPIRO: Correct. And those 152 8 counties spent approximately $49 million. 9 JUDGE BIRCH: And so it's a drop in their 10 bucket, so to speak. As I understand it what they 11 have to agree to -- do they have to agree to abide 12 by the guidelines? 13 MR. SHAPIRO: That's what the code says. 14 JUDGE BIRCH: If they get the funds? It's a 15 carrot stick sort of thing? 16 MR. SHAPIRO: Yes. 17 JUDGE BIRCH: And then you all are supposed 18 to monitor that? 19 MR. SHAPIRO: Yes. 20 JUDGE BIRCH: Are there statistical 21 requirements that they're supposed to provide you 22 again, or is that a once a year statistical thing? 23 MR. SHAPIRO: Yes. What we do is we use the 24 funding application information as our sole source 25 of data gathering other than complaints that we KING COURT REPORTING SERVICE 30 1 get from local attorneys, or Defendants, or people 2 who happen to be in court. And that's why it's 3 critical for us to have complete funding 4 applications. 5 JUDGE BIRCH: And so there is a body of data 6 that could be looked at, at least based on what -- 7 how many counties get funds who don't report? 8 MR. SHAPIRO: If they don't report they 9 can't get the funds. 10 JUDGE BIRCH: For the next year? 11 MR. SHAPIRO: Correct. 12 JUDGE BIRCH: So at least you get that 13 that's working fairly well. The quality of the 14 reports, I guess, vary. 15 MR. SHAPIRO: Quality of the reports varies. 16 There are some counties that have said they only 17 want to give us population caseload and 18 expenditure information, which is the three 19 variables of the formula that we use and the code 20 provides for it to distribute funds. 21 Obviously, if we're going to plan for the 22 future of indigent defense we need much more 23 information than just that. 24 JUDGE BIRCH: Do you all keep any kind of 25 statistical data on ineffective assistance claims KING COURT REPORTING SERVICE 31 1 that are granted, or denied, or made? 2 MR. SHAPIRO: Yes. 3 JUDGE BIRCH: Okay. 4 MR. KURTZ: This may be getting into the 5 same question from a different angle. I thought I 6 heard you say very carefully we are aware of 7 certain things. Does that suggest that the fact, 8 this -- the examples you gave, do they not -- are 9 they not obvious from the data that's collected? 10 I mean, did you get that information from another 11 source other than the application? 12 MR. SHAPIRO: We got it from multiple 13 sources, but the application as well. 14 MR. KURTZ: I'm not doubting the truth of it 15 all, but, I mean, it would seem to me it would be 16 hard to -- it might be hard to cap -- to have 17 that -- to learn of something like that from the 18 application, itself. To learn of something like 19 the father and son and the daughther-in-law doing 20 800 cases in five counties, you have to put 21 together a lot of information. 22 MR. SHAPIRO: We did. We had to piece 23 together five different counties' applications, 24 none of which listed the names of the attorneys, 25 and all of which intimated that two or three KING COURT REPORTING SERVICE 32 1 attorneys were handling the full caseload of each 2 of those five counties, and only after we put the 3 pieces of the jigsaw puzzle together did we 4 realize that it was the same two or three 5 attorneys that were handling 825 cases. 6 MR. KURTZ: So the data that you have 7 wouldn't have -- that wouldn't be apparent from 8 the application? 9 MR. SHAPIRO: No. No. And in those cases, 10 although we have for at least six years now asked 11 for copies of the contracts for indigent defense 12 services, in those particular applications they 13 were omitted, and so it made it that much harder 14 for us to learn that it was the same attorneys. 15 MR. KURTZ: Now that leads to another 16 question, and I think part of what we heard last 17 month, and it was said in different ways at 18 different times, but I understood it at some times 19 to be referring to the guidelines, which convinced 20 me have not been changed, but at other times 21 involved the nature of the application or the 22 form. Has that been changed? 23 MR. SHAPIRO: It has evolved, yes. 24 MR. KURTZ: Okay. And it's gotten more 25 detailed, or some more and some less? KING COURT REPORTING SERVICE 33 1 MR. SHAPIRO: A little bit. Two years ago 2 we asked for specific information from the public 3 defenders and the contract attorneys because we 4 were trying to learn more about situations that 5 weren't revealed in the normal data gathering. 6 Originally the application was on about five 7 pages and it was in a font that was so small you 8 needed a microscope to read it. And so the first 9 thing we did was we expanded it to 12.5 and that 10 pushed it to about eight or nine pages and it was 11 much easier to work with. 12 We've got copies of the funding application 13 for you all to see because I know there were some 14 questions about it. This year the biggest change 15 was we dropped out the break-out sheets for those 16 attorneys and we also color codeed it. 17 The white sections have to be filled out by 18 all counties, and the color coded sections would 19 be for public defender counties, or contract 20 counties, or appointed counties. The whole thing 21 is about six pages. 22 MR. KURTZ: And they've got to do this once 23 a year? 24 MR. SHAPIRO: Once a year. It goes out the 25 second week in January and so it misses the KING COURT REPORTING SERVICE 34 1 Christmas mail rush and it's due back June 1st. 2 MR. KURTZ: And this is the only thing they 3 have to send? 4 MR. SHAPIRO: Yes. 5 MR. BRIGHT: And the guidelines have never 6 been enforced, right, if a county doesn't appoint 7 lawyers within 72 hours if it doesn't use the 8 poverty guidelines if the caseloads are three 9 times what they ought to be, nobody ever losses 10 their money or is in way sanctioned for doing 11 that, right? 12 MR. SHAPIRO: I'm not aware of any county 13 that has permanently lost its money. 14 MR. BRIGHT: Has anyone temporarily lost 15 their funding for those kind of violations? 16 MR. SHAPIRO: When the guidelines were 17 changed a couple of years ago where it moved from 18 35/45 to 45/60 several counties indicated that 19 they were caught in the middle of their budget 20 cycle and typically January they would move up to 21 that rate. 22 And so their funding was delayed until they 23 did move their hourly compensation up. Now, they 24 received their full funding for the year. What 25 the council did was except their application, but KING COURT REPORTING SERVICE 35 1 delayed the distribution. 2 MR. KURTZ: And distribution of funding is 3 once a year? Twice a year? Four times a year? 4 MR. SHAPIRO: Typically distribution of 5 funding is three times a year. The state funds 6 currently $5.39 million is distributed in the 7 middle of October and the middle of April, and 8 then we also get interest on clerks' and sheriffs' 9 trust accounts, and I'll talk about that a little 10 more later, but that typically is distributed in 11 the middle of August. 12 CHAIRMAN MORGAN: I'm going to ask if there 13 is no other questions from the Commissioners that 14 we let Michael go ahead and finish. And I'm going 15 to also ask for the guests, just for the sake of 16 order, if you would wait to be called on by the 17 chair. I think that will help us make sure that 18 everyone has a chance to comment or ask questions. 19 Go ahead, Michael. 20 MR. SHAPIRO: Thank you, Charles. The only 21 other change in 1997 of significance was contract 22 cases. Contract programs were prohibited from 23 handling the death penalty case under the 24 contract. That attorney could still, on an hourly 25 basis, handle a death penalty case. KING COURT REPORTING SERVICE 36 1 This was to avoid the appearance of a fee 2 cap in a death case, which is prohibited by the 3 state. We notified every single county of funding 4 through our newsletter, and we also send funding 5 applications out to every county, whether they 6 received funding the year before or not. 7 This is a repeat of a slide that y'all saw 8 in February. And this is your breakdown, and it's 9 assuming zero loss of time. An attorney is 100 10 percent efficient, works 50 weeks a year, 40 hours 11 a week, has no administrative time, no down time, 12 no sick time, no nothing. The best they could do 13 if they maxed out would be 13 and a half hours per 14 felony. A day and a half per felony. 15 Now, I know that when the guidelines were 16 first put in place and specific like this Joe 17 Chambers, who was the director of Prosecuting 18 Attorneys Council, wrote to me and said he wished 19 that there would be similar guidelines for the 20 prosecution. And I sympathized with Joe because 21 it's true. The prosecutors were overwhelmed, too. 22 The caseloads that are expected to be 23 handled by prosecutors and defenders in this state 24 are unmanageable and possibly unconscionable. And 25 I sympathize with the prosecutors. They, too, KING COURT REPORTING SERVICE 37 1 have tremendous difficulty. This is not something 2 where the defenders are isolated. 3 Our national standards, our standards fits 4 within the national standards. If you looked 5 closely at that Bureau of Justice Administration 6 monograph that keeping defender caseloads 7 manageable you'll see that sound management 8 information has got to be based upon statistical 9 and reliable information. 10 You've got to have a good statistical 11 reporting procedure. We use the funding 12 application. It is critical for us to have 13 accurate and complete applications. There has got 14 to be some sort of trigger. There's got to be a 15 safety valve that says Bob Keller has X number of 16 cases. He can't take X plus one. He just can't 17 do it. Or he just took a serious felony and he 18 needs some time to catch on that serious felony 19 before we can assign him another case. 20 And we need support. The Indigent Defense 21 Council is the -- I don't want to say we're the 22 least supported agency in the state. We're one of 23 the smallest agencies in the state. 24 We are politically often left field, if you 25 want to do that figuratively. We don't have a lot KING COURT REPORTING SERVICE 38 1 of support, and I'm grateful that Bob has agreed 2 to be on the Commission. He and I have been 3 friends for years. I thought of the joke the fox 4 in the hen house, but it's not true. 5 You heard from several prosecutors a few 6 months ago. If the criminal justice system is 7 going to work it has to work for all of us. The 8 Indigent Defense Act anticipates that the local 9 administration is done by a tripartite committee, 10 and it requires reasonably early entry of counsel. 11 If you use an independent defense 12 administrator, as most programs do, or if you use 13 a tripartite committee, then counsel is assigned 14 before arraignment, which means the Judge can do 15 something at arraignment instead of just saying 16 Mr. Shapiro would you take Mr. Barnes' case? And 17 that's the way it should be done. 18 The best programs have good administrators 19 running them. And this is where I think we get 20 into the conflict with the Judge, and it's not a 21 true conflict. It's a misperception. Nothing 22 about the Indigent Defense Council has advocated 23 for would strip any control away from the courts. 24 The whole point is that the administration 25 is indigent defense be handled before the Court KING COURT REPORTING SERVICE 39 1 has to deal with it. If there is a problem with 2 indigent defense, there is a problem with the 3 Defendant not liking the attorney, not trusting 4 the attorney, there is a problem with the attorney 5 him or herself, that's when the Court can get 6 involved if it hasn't been handled by the 7 administration. 8 The Court retains the inherent power to 9 control its caseload, it controls stock, it 10 controls the decorum of the attorneys and the 11 participants within the courtroom. But a good 12 program, a well-run program only needs the Judges' 13 involvement when something's gone wrong. The 14 Judge has too many hats to wear already. Let them 15 wear the hat that says they're arbiters of 16 justice, not the one that says they have primary 17 responsibility for indigent defense. 18 MR. KURTZ: Michael, I understand how that 19 plays out in Fulton County, DeKalb County, Cobb 20 County, and Muscogee. How is it played in Ware 21 County? 22 MR. SHAPIRO: In Ware County they do have a 23 public defender's office. 24 MR. KURTZ: Okay. I picked the wrong county 25 then. KING COURT REPORTING SERVICE 40 1 MR. SHAPIRO: It is one of the smallest ones 2 in the state. You would be surprised. In many of 3 the smallest counties the administration is being 4 handled by the court clerk, or the Judge's 5 secretary, or someone in the courthouse. 6 In some of the counties people are not 7 provided counsel until they show up for 8 arraignment. And I'm working with the folks in 9 DeKalb County right now. The second or third 10 biggest county in the state. If there is a 11 conflict of interest, the easiest example that I 12 use is when people say, "What's a conflict?" 13 You've got a driver and passenger in the car 14 and there is drugs found in the front seat, and 15 everybody does this (indicating). Oh, it was the 16 driver's drugs. It was the passenger's drugs. 17 Obviously, one attorney can't represent both 18 the driver and the passenger because their defense 19 is conflicting one another. In that situation in 20 DeKalb the public defender's office will take one 21 of the Defendants, but the second Defendant will 22 not be assigned counsel until arraignment. 23 Nobody wants that. Judges don't want that. 24 The prosecutors don't want that. The Defendants 25 certainly don't want that. We need to have a KING COURT REPORTING SERVICE 41 1 better mechanism to provide counsel at the 2 earliest possible opportunity. 3 The Independent Defense Act and the 4 guidelines compel programs to appoint counsel 5 within 72 hours of arrest if the person remains in 6 custody, or no less than 10 days before the next 7 critical stage, which is arraignment. 8 And so why are we waiting until arraignment? 9 It's a very inefficient use of courtroom time. 10 The Judge's time is very precious, and the 11 prosecutor's time and defender's time is very 12 precious. 13 MR. KURTZ: So another way to say that then 14 is in all of these cases where counsel is not 15 appointed until arraignment they're in violation 16 of the guidelines? 17 MR. SHAPIRO: Yes, they are. Now, we 18 recognize there is some administrative constraints 19 in this as well. 20 JUDGE BIRCH: Tell me again who appoints the 21 tripartite committee? 22 MR. SHAPIRO: They are equal representatives 23 of the County Commission -- 24 JUDGE BIRCH: I know who they are. I mean, 25 who are they? How do they get there? Who KING COURT REPORTING SERVICE 42 1 initiates the procedure? 2 MR. SHAPIRO: Well, when a county applies 3 for funding, for example this year we had 18 4 counties join the program that did not participate 5 last year. We had two counties drop out. Of 6 those 18, 11 had never been in the program. And 7 so we traveled the state working with them, 8 talking with the Judges, talking with the County 9 Commission, talking with the bar association about 10 each name and representative to the committee. 11 JUDGE BIRCH: I see. 12 MR. SHAPIRO: And that's, you know, Steve 13 asked earlier about whether we've ever delayed 14 funding. There are some instances with new 15 counties where they've been approved subject to 16 the formation of the tripartite committee, but the 17 code doesn't allow us unless we're going to run a 18 pilot project to fund them without the tripartite 19 committee. 20 MR. SHAPIRO: Yes. 21 CHAIRMAN MORGAN: What do some -- the 22 counties that don't apply for funding, why is 23 that? Do they express that, or do you have any 24 views as to why that's the case? Counties don't 25 want to turn down the money. KING COURT REPORTING SERVICE 43 1 MR. SHAPIRO: There are four counties in the 2 Lookout Mountain circuit, Chattooga, Catoosa, 3 Walker and Dade have never applied for funding in 4 the history of the Indigent Defense Council. In 5 talking with Chief Judge Wood up there his 6 response is they just like doing things the way 7 they do things. 8 And since the approval of the Chief Judge is 9 required for a county to apply, I've been up 10 there, I've talked with the Judges, I've talked 11 with the County Commissioners, I've talked with 12 the county managers. Until Judge Wood changes 13 that position we can't fund it. 14 CHAIRMAN MORGAN: Could you tell us again 15 the counties that don't apply? 16 MR. SHAPIRO: Sure. Chattooga, Catoosa, 17 Walker, Dade, Jackson, Putnam, and Jones. Now, 18 the last three at one time were funded. Putnam 19 and Jones were funded last year, but did not apply 20 this year. I don't know for certain about Jones 21 County. We've talked with the court clerk and it 22 seems like they just let it slip between the 23 cracks. 24 In Putnam County they're having a difference 25 of opinions in the County Commission. It's KING COURT REPORTING SERVICE 44 1 literally split in half and they just couldn't get 2 the support of the County Commissioners to fill 3 out the application. 4 Jackson County was in the program up until 5 about two years ago. They had a tremendously high 6 caseload. They rang the bell, if you want to say 7 it. One attorney, 685 cases in a single year. We 8 expressed tremendous concern over it. 9 The County Commission agreed to bring the 10 program inhouse, that program had been a contract 11 program prior to that, and to hire a second 12 attorney, but in exchange they dropped out of 13 funding. 14 And despite our best efforts and our 15 agreement that the Chief Justices told us that the 16 caseload limitations are aspirational, they chose 17 not to reapply. 18 CHAIRMAN MORGAN: Wilson. 19 MR. DuBOSE: Mike, who typically completes 20 the applications? 21 MR. SHAPIRO: Typically the independent 22 defense administrator. The administrator is the 23 person that could be on the tripartite committee 24 or selected by the tripartite committee. 25 Oftentimes it is someone in the courthouse KING COURT REPORTING SERVICE 45 1 or close to the courthouse. In many programs it 2 is the local attorney. Here in Fulton County Bob 3 Rubin, who is a private practitioner, is the chair 4 of the committee, but they've got somebody in the 5 courthouse that does the operations. Other 6 questions? 7 MR. KURTZ: So there needs to be an 8 administrator? 9 MR. SHAPIRO: Like with any program. And I 10 realize that it may not be a full-time job. I was 11 down in Hamilton the other day, which is just 12 outside of Columbus. Four counties just outside 13 of Columbus joined the program this year, and the 14 court clerks are struggling with the changes 15 because in the past the Judges had made the 16 appointments and they recognize the benefit of 17 early appointment, but it's something new to them, 18 and it's an additional responsibility. 19 The programs that worked well have full or 20 part-time staff that can devote the time to 21 indigent defense; that either communicate with the 22 jail on a regular basis, or if the caseload is 23 high enough the number of arrests are high enough, 24 they visit the jail on a recurring basis. 25 In many programs there are literally visits KING COURT REPORTING SERVICE 46 1 every morning to the jail to see who was arrested 2 the night before, determining whether or not they 3 qualify under the federal poverty standards for 4 counsel, and if so assign them counsel. 5 MR. KURTZ: And, of course, the appointment 6 function is primarily an issue only in those 7 jurisdictions that use panel as opposed to 8 contract or public defenders? 9 MR. SHAPIRO: That's true. 10 MR. KURTZ: And, obviously, the public 11 defender knows how to get through the jail and, 12 likewise, the contract attorney knows how, and 13 that's sort of self-triggering. It starts by 14 itself. 15 MR. SHAPIRO: It typically is, yeah. 16 MR. DuBOSE: Is the GIDC funding to the 17 counties ever conditioned upon a certain level of 18 local funding by the counties? How are funds 19 allocated to the counties? 20 MR. SHAPIRO: The funds are allocated 21 according to a three-part format: Population, 22 indigent caseload, and independent expenditures. 23 I've got a slide in here later on that talks about 24 some quirks of the three-part format. 25 Counties -- state funding right now is about KING COURT REPORTING SERVICE 47 1 11 percent. We had asked last year the 2 legislature increase us to 15 percent by taking us 3 up to $6.8 million. We increased from 4.89 to 4 5.39, and with the new statistics that came in 5 from the counties there was literally a 20 and a 6 half percent increase in expenses that the 7 counties had last year. It was a tremendous 8 increase. And the caseload was that much. 9 MR. TATE: I have four that I want to ask at 10 the same time if you can answer them. 11 No. 1, does the GIDC have a lobbyist? And 12 if not do they have a form of coalition that might 13 get a lobbyist? And the reason why I asked that 14 is there are some quirks in the act that still 15 lets a lot of deserving people fall between the 16 cracks. 17 For instance, the poverty guidelines were 18 unrealistic 10 years ago. If they were 19 unrealistic 10 years ago and really haven't been 20 successfully adjusted they're even more 21 unrealistic now. 22 And if we couldn't change it on the federal 23 level there might be some adjustments that could 24 be made legislatively that would allow a few other 25 people who would be ruled out to be able to get KING COURT REPORTING SERVICE 48 1 it, even if they had to do partial payments or 2 something. That's a major thing. 3 And then another question. The law says the 4 Judge can intervene whenever there is a problem in 5 the case, but the question in my mind is when and 6 how can the problem be asserted? And when and how 7 is it recognized? Because you say it's a problem 8 in the case, the kid says well wait a minute here, 9 I can see, you know, that you're not interested in 10 the case, or we have a major, major problem of 11 contradiction here. 12 And you know the story about how you can't 13 get anything in ineffective counsel, and so how 14 does the kid, or the parents, or the people who 15 raised the issue, how does the Judge recognize it 16 and how could that problem be solved? 17 Those were just two of the four. Maybe I'll 18 ask the other two later on. 19 CHAIRMAN MORGAN: Thank you. 20 MR. SHAPIRO: The answer to your question is 21 yes, we do have a full-time lobbyist and Ms. Smith 22 is in the back of the room and other members of 23 our staff are frequently down at the legislature. 24 Tom Bollen is here. We worked with the 25 Southern Center for Human Rights. We even worked KING COURT REPORTING SERVICE 49 1 with Bob Keller, who is lobbyist for the DAs, and 2 we do try to work on that. 3 In terms of your second question, I know 4 that John Cole-Vodicka, and Steve Bright, and the 5 State Bar, and we get letters all the time about 6 Defendants complaining that they're not confident 7 in their attorneys and they're not being 8 communicated -- there is no communication with 9 their attorneys. We try very hard to work with 10 the local administrators and with the attorneys to 11 put the trolley back on the tracks. 12 CHAIRMAN MORGAN: Okay. Let's go ahead. 13 MR. SHAPIRO: Poverty guidelines were 14 amended to adjust with the federal guidelines. I 15 know Phillips Legal Services uses what, 125 16 percent? Is that right? 17 MS. HOLEMAN: Uh-huh. 18 MR. SHAPIRO: And so that would be perhaps 19 that only other change, to go at a percentage 20 above what the federal poverty index is. Right now 21 we look directly at the poverty indes. 22 There are alwyas going to be a certain 23 number of cases that will show up in court where 24 the Defendant has not gotten counsel. Judge 25 Fuller will tell you. I'm sure Judge Adams, too. KING COURT REPORTING SERVICE 50 1 If the Defendant comes into court with a first 2 Defendant and says I'm going to hire Ed Garland, 3 that doesn't happen. That is going to be an 4 aberration. It shouldn't be the norm. Counsel 5 should be provided early on. 6 And nothing strips the Court of its inherent 7 power and authority over the courtroom. That's a 8 different issue and that's not something that 9 we're interested in adjusting at all. 10 Okay. Council recently had a meeting where 11 we came up with a revised mission statement. The 12 mission is to promote justice and fairness to all 13 indigent persons charged with crimes or who are 14 parties in a juvenile action by providing fiscal 15 and professional support that ensures effective 16 indigent defense systems and high quality legal 17 services in all courts, as mandated by the laws 18 and by the Constitution of the United States and 19 Georgia. 20 We also came up with a vision statement and 21 it talks about the need to collaborate because we 22 recognize that we are one player in a system. We 23 have seven divisions. Our administrative division 24 like in any organization handles human resources, 25 office management, our physical services. KING COURT REPORTING SERVICE 51 1 We have an appeals division of one, 2 hopefully two by the end of next year. We do our 3 own appellate litigation cases that come out of 4 our divisions, whether it is the death penalty 5 division, whether it was the mental health 6 division. 7 And we also serve as a resource center for 8 attorneys statewide in post conviction cases. 9 Sarah's division, the governmental relations 10 division, handles the lobbying, and also gathers 11 the statistical data, and distributes the funding, 12 and assists the counties in trying to improve 13 their programs. 14 Our juvenile division was created five years 15 ago. It provides training and support to 16 attorneys all over the state who are handling 17 cases in juvenile court, and it is becoming more 18 and more complex. 19 The mental health division was created by 20 the legislature in 1996. We are working 21 collaboratively with counties all over the state. 22 We've worked on a new program in Augusta to hyper 23 train an attorney handling mental health cases. 24 These are perhaps the most complex cases and the 25 most difficult clients. KING COURT REPORTING SERVICE 52 1 MR. GRIFFIN: Let ask a question about that. 2 Are you seeing an increase in that since the 3 States closed all of their mental health 4 facilities and cut funding to counties for mental 5 health treatment, I hear you're telling us that 6 more and more mental health people are ending up 7 in our jail on various charges. 8 MR. SHAPIRO: We are estimating between 18 9 to 20 percent of the people in the jail have some 10 type of mental health issues. That number may 11 actually be low. 12 MR. GRIFFIN: We understand that one of the 13 fastest growing expenses is for mental health. 14 JUDGE ADAMS: What proportion of the budget 15 is allocated to the juvenile division, or juvenile 16 court cases? 17 MR. SHAPIRO: Our in internal budget for 18 operations or on the outside, what the county 19 spends. 20 JUDGE ADAMS: Well, the funding. Is any 21 portion of it? 22 MR. SHAPIRO: Well, Judge, I couldn't really 23 tell you because the funding application doesn't 24 ask for a breakdown of how the funds are spent 25 other than whether they are spent on the KING COURT REPORTING SERVICE 53 1 administration of a program or the attorney's fees 2 and the other ancillary expenses. 3 We don't ask whether a certain amount is 4 spend on misdemeanors, or felonies, or juvenile 5 cases. 6 JUDGE ADAMS: And so there is no way of 7 telling, or there is no data that would show what 8 the funding of juvenile court defense state-wide 9 is? 10 MR. SHAPIRO: No. 11 JUDGE ADAMS: For the defense of indigent 12 cases. 13 MR. SHAPIRO: No. There are some programs. 14 I'm sure in your county's program I know up in 15 Rome because Judge Pate is an elected Judge up 16 there and they have a completely separate office 17 that we could track it, you know, spot check it, 18 but I don't believe that we could do a state-wide 19 figure for you. 20 JUDGE ADAMS: Well, do you have any 21 estimate? I mean, is it a large figure? A small 22 figure? 23 MR. SHAPIRO: Oh, it's growing. It is 24 growing. The number of juvenile cases, we could 25 do that. We could extrapolate from the caseload KING COURT REPORTING SERVICE 54 1 because we do collect date based upon whether it's 2 felonies, misdemeanors, probation revocations. 3 And in juvenile we break it down to 4 delinquencies, deprivations, unruly, incorrigible, 5 termination of parental rights, and so we can 6 track the caseloads, but I do know the expenses 7 are growing. 8 In Floyd County, up in Rome, I know last 9 year they had a 100 percent increase in their 10 expenses. 11 MR. KURTZ: Is the juvenile caseload 12 increasing more frequently than the felony 13 misdemeanor caseload? 14 MR. SHAPIRO: It appears to be. Now, don't 15 draw a conclusion from that that the number of 16 juvenile cases is growing because one of the 17 concerns that we have is counsel is not being 18 appointed in certain cases. I think one of the 19 things that David Carroll from Spangenberg talked 20 about last month was the unusual ratio between 21 felony and misdemeanor cases in Georgia. 22 Typically states have a three-to-one ratio 23 of misdemeanors to felonies. In Georgia, the 24 statistics we get show a 2.4-to-one ratio in the 25 opposite direction. We are providing counsel in KING COURT REPORTING SERVICE 55 1 nearly two and a half cases, two and a half felony 2 cases for every misdemeanor case we are providing 3 counsel. 4 MR. TATE: The prosecutors overcharge 5 exponentially. 6 MR. SHAPIRO: I don't know that I would draw 7 that conclusion. My concern is that we are not 8 providing counsel in some misdemeanors. 9 Clearly in some cases where there is a 10 mandatory sentence like DUI counsel has to be 11 provided, but we're aware of instances where they 12 are not being in DUIs. 13 JUDGE ADAMS: And so whatever the growth has 14 been that it is indigent funding for the counties 15 in juvenile cases has occurred in this five years 16 at a pretty substantial rate, huh? 17 MR. SHAPIRO: It's been a pretty good clip. 18 I can tell you when I joined the council in 1996 19 there were approximately 101,000 indigent cases. 20 Now, granted, we were only funding 117 of 21 the counties. This year we're funding 152 22 counties. There were 169,000, almost 172,000 23 cases. Part of that is attributed to the 24 additional counties that we're getting data from. 25 Part of it is the growing indigent caseload. KING COURT REPORTING SERVICE 56 1 The criminal caseloads don't seem to be 2 growing that rapidly. The indigent portion of the 3 criminal caseloads is what's growing. 4 The last two divisions, obviously our death 5 penalty division, is funded by the legislature. 6 It is our largest with ten full-time staff 7 members. We handle our own cases. At any given 8 time we probably handle between 15 and 20 percent 9 of the cases at the trial level, but we track 10 every single case in the state. 11 MR. KURTZ: 15 to 20 percent of the death 12 penalty cases? 13 MR. SHAPIRO: Of the death penalty cases. 14 There are currently -- I think it's 131 now, 15 people on death row. 130 men, one woman, and 16 there are approximately 80 cases pending at the 17 trial level that varies from day to day. 18 The last division, our professional 19 education division. We travel the state. We have 20 facilities at our office. We provide no less than 21 50 large seminars each year on everything from law 22 office automation to handling a rape case or a 23 murder case. 24 Our biggest funding is through the grants to 25 counties funding program. We provide $5.39 KING COURT REPORTING SERVICE 57 1 million. The funding application you all have. 2 It goes out the first of the year. It's got to be 3 returned by June 1. 4 It has one section that's common to all of 5 the counties. That section is white. And then 6 whether you've got a public defender, contract, or 7 an appointed system you have a colored section 8 that you need to fill out. 9 The application forms a binding agreement. 10 It is an inter-governmental agreement between the 11 county. It's got to be signed by the members of 12 the tripartite committee, whether it's three, six, 13 or 30, and also signed by the Commission chair. I 14 sign it on behalf of the council. 15 It's a binding contract. It gathers the 16 data necessary. The caseloads and the 17 expenditures, the population figures we get 18 directly from the census bureau and we updated 19 them for the first time in 10 years this year as 20 the official census numbers came out. 21 We try to ensure conformity with the Supreme 22 Court's guidelines, but as Steve pointed out there 23 is no price for a county that doesn't conform to 24 the guidelines. 25 The code permits counties who have an KING COURT REPORTING SERVICE 58 1 aberration. There is some sort of variance from 2 the guidelines to request a waiver, or the council 3 can sua sponte grant a waiver if it deems that the 4 requirements of justice, fairness, and judicial 5 administration are required. 6 The council has never rejected a funding 7 application. I know a couple of months ago Judge 8 Stephens, who was on the Commission, asked me why 9 we, the council, were withholding funding from 10 certain counties. The council hasn't withheld 11 funding from any county in years. 12 The only time that I can recall that we 13 delayed funds was when we moved from 35/45 to 14 45/60. The Act contemplates that we're the agency 15 to gather all of this data. 16 You heard from a couple of people from Texas 17 last month and they were talking about the need, 18 the critical need to gather statistical 19 information. We've recognized that need. We're 20 trying to do that. 21 Now there is some difficulty at the county 22 level. Part of it is different people are 23 custodians of the information. The county finance 24 office might have the financial figures. The 25 County Clerk's office, or the court clerk's office KING COURT REPORTING SERVICE 59 1 might have the caseload information, but we try to 2 work collaboratively with those groups to get as 3 much information as possible. 4 In fact, we sent a slim down application 5 form. A data collection form to the seven 6 counties that didn't apply for funding. Why? 7 Because we want to know what's going on 8 state-wide. It's prudent to know what's going on 9 state-wide. 10 We are the only agency that is collecting 11 this data. The only agency that's massaging this 12 data. We're the only agency that's trying to 13 predict or forecast what's going to happen in the 14 future. 15 We had anticipated about a 12 percent 16 increase in expenses last year. 17 JUDGE BIRCH: Excuse me. On this data 18 collection, before you leave that, has any thought 19 been given to using a Web site that each county 20 could post on a monthly basis their data as they 21 get it rather than trying to wait until the end of 22 the year and cumulate it all? 23 I mean, we're in the computer age now and 24 sometimes if you get people to do it on a monthly 25 basis where they could access through the Internet KING COURT REPORTING SERVICE 60 1 a Web browser or Web site and put the information 2 in in a form on the back, they could fill it in on 3 a monthly basis, has that even been given any 4 thought? 5 MR. SHAPIRO: We hadn't considered it 6 because what we try to do is reduce the ongoing 7 burden. But I agree with you. If somebody is 8 doing it as a routine we might get more accurate 9 and fresher information and be able to see trends 10 within the year instead of having to wait until 11 the close of the year. 12 JUDGE BIRCH: It might be something that we 13 might want to recommend looking at. 14 MR. SHAPIRO: Certainly. We have the 15 technological ability to collect the data, to put 16 the form on the Web site. Every state that I've 17 talked to, and I was flattered by the folks in 18 Texas. They don't call it the Administrative 19 Office of the Courts, but their equivalent called 20 me and wanted to know what Georgia was doing while 21 they were planning their stuff, and my comments to 22 them was you've got to have the data. You can't 23 do anything without the data. 24 Our criminal justice system is rapidly 25 becoming an indigent justice system. There was a KING COURT REPORTING SERVICE 61 1 study by the Department of Justice about a year 2 ago that in 80 percent of the felonies nationwide 3 Defendants can't afford counsel. Here in Georgia 4 we have several counties at or above 90 percent as 5 indigent Defendants. 6 I was in Walton County a few weeks ago, out 7 in Monroe, that used to be considered beyond 8 suburbia. That was rural Georgia. 92 percent of 9 their caseload is indigent. 10 We had some discussion last month about how 11 we define a case. The National Center for State 12 Courts defines a case as all counts against a 13 single Defendant arising from a single incident. 14 We have modified that slightly. The image I 15 tried to portray last month was the file folder 16 working its way through the Court system. Our 17 definition is a case is a single Defendant charged 18 with one or more counts arising out of a single 19 event or series of related events, and which is 20 disposed of as a single unit. 21 Judge McMillan's example last month of a 22 woman writing 90 check is one case. It's one 23 case. It is processed as one case. It will go 24 through the courts. Now, there are some programs, 25 some counties where the prosecutor's office will KING COURT REPORTING SERVICE 62 1 indict it separately. It will have 90 separate 2 indictments. Most programs will have one 3 indictment with 90 counts on it. That's one case. 4 The only thing that I can visualize is a 5 file folder working its way through the court 6 system. When one of those charges are disposed 7 of, all of those charges are disposed of. 8 MR. KURTZ: But your office will count that 9 as one case whether it was 90 counts or 90 10 indictments? 11 MR. SHAPIRO: Correct. And whether it was 12 30 checks, or 90 checks, or 150 checks. And the 13 capital letters appear on the face of the funding 14 application. I took that verbatim. And that's 15 been our definition for quite a white. 16 150 counties, 21 of them have public 17 defender offices. And this is not a -- I guess it 18 is a term of art, Steve, isn't it? Public 19 defender is a full-time government employee who 20 devotes his or her time exculsively to indigent 21 defense. 22 59 counties use a contract program as their 23 primary delivery method. A contract program is an 24 attorney or group of attorneys, law firm or group 25 of law firms contracting with the county to KING COURT REPORTING SERVICE 63 1 perform indigent defense typically in addition to 2 their private caseload. 3 An appointed or panel system, that's the 4 largest group. 79 counties. Now, of this group 5 one of the 21 counties the public defenders chose 6 not to be funded, and six of the 79 counties with 7 the appointed system chose not to be funded this 8 year. 9 Here are the counties with public defenders 10 offices. Jackson county is the one without the 11 lemming in it. This one here. Although they have 12 a public defender office, they chose not to apply. 13 Not that they were rejected, they chose not to 14 apply for funding. 15 These are the counties that have the 16 appointed systems. The upper left-hand corner, 17 that's the Lookout Mountain circuit. They have 18 never applied for funding. The other two are 19 Putnam and Jones. They had been funded in the 20 past. This year they chose not to apply. 21 These are the contract system counties. If 22 you overlay them all this is what it looks like in 23 the state. Those are the seven counties that we 24 don't fund. 25 JUDGE BIRCH: Are Putnam and Jones in the KING COURT REPORTING SERVICE 64 1 same circuit? 2 MR. SHAPIRO: Yes. That is the Ogeech -- 3 I'm sorry, the Ocmulgee circuit. 4 JUDGE BIRCH: That is the circuit? 5 MR. SHAPIRO: Yes. There are eight counties 6 in that circuit. We fund the other six counties. 7 MR. KURTZ: Not the whole circuit? 8 MR. SHAPIRO: No, it's two of eight counties 9 within the circuit, but they're in the same 10 circuit. 11 Jackson County is in the Piedmont circuit. 12 Banks and Barrow County are funded within that 13 circuit. 14 Okay. And here is the funding formula. 15 It's provided in 17-12-36-B. County population, 16 indigent defense expenditures, indigent defense 17 caseload. We treat each one as a separate 18 fraction, and that results in the award of funds. 19 Because the funding formula has three 20 variables you can't do a one-to-one comparison. I 21 can't say that Hall County got 11 percent, and 22 Dawson county got 11 percent last year. 23 In fact, Hall County probably got more or 24 less than that. Hall County, as a larger county, 25 probably got a little less than that, and that's KING COURT REPORTING SERVICE 65 1 unfortunate. 2 Marion County is a new county in the 3 program. And I don't mean to single them out. It 4 is just that they were at one end of the spectrum. 5 Their funding application this year when we 6 applied the formula would have resulted in a 121 7 percent offset of their expenses. 8 Now, obviously, we're going to cap it so 9 they don't get more than 100 percent because no 10 program should get more than they spent. That's 11 not the design of the formula, but the formula has 12 quirks, and the quirks seem to occur when you've 13 got low caseloads compared to high costs, or small 14 numbers compared to the whole thing. 15 We've analyzed the counties based upon high 16 to low on percentage of reimbursement. We've 17 looked at costs per capita. 22 cents total. 18 That's not just state funds, that's 22 cents per 19 capita. Every citizen of Marion County paid less 20 than a quarter for indigent defense in their 21 county last year. 22 One of the things that should be considered 23 by this group is whether or not the formula should 24 be revised. One of the things that the Department 25 of Audits considered last year was whether the KING COURT REPORTING SERVICE 66 1 formula should be revised to a straight offset. 2 If the county spends $10, and we have a 3 dollar, then it should be a ten percent 4 reimbursement. That's up to the legislature to 5 work out the formulas in this code and perhaps 6 based upon a recommendation by this group. 7 MR. KURTZ: Mike, let me make sure that I 8 understand. I don't know if anybody else does. 9 These numbers represent what percent of the cost 10 of indigent defense in that county as supplied by 11 the GIDC. 12 MR. SHAPIRO: No. 13 MR. KURTZ: No? 14 MR. SHAPIRO: Indigent defense in Marion 15 County in calendar 2000, which is the last year we 16 have data for, costs them $1,561. If we had 17 provided them funding based exclusively on the 18 formula they would have gotten $1,800, almost 19 $1,900. 20 MR. KURTZ: This handout that we've got -- 21 MR. SHAPIRO: That handout that you've got 22 -- 23 MR. KURTZ: -- gets us to the formula? 24 MR. SHAPIRO: Right. That's correct. 25 MR. KURTZ: But you're telling us that -- KING COURT REPORTING SERVICE 67 1 MR. SHAPIRO: This is the first time that we 2 had to cap the formula. 3 MR. KURTZ: That's the only one you did? 4 MR. SHAPIRO: Right. Now, we had some 5 counties that were getting 60 percent. 6 MR. KURTZ: Dodge County, which is the next 7 one on the list, it says 45.66 percent. 8 MR. SHAPIRO: Right. State funding. 9 MR. KURTZ: Now we, the state, provided 10 about 45 percent of the cost of indigent defense 11 in Dodge County in fiscal year 2002. 12 MR. SHAPIRO: That's correct. And there are 13 some losers. There are some that are below six 14 percent. The formula has a lot of quirks to it, 15 and I don't know if that's what the legislature 16 intended. 17 MR. KURTZ: And the formula is statutory? 18 MR. SHAPIRO: Yes, sir. 19 MR. GRIFFIN: Mike, is the death penalty in 20 addition to this? That's funded directly out of 21 your office? 22 MR. SHAPIRO: Correct. That is the $5.39 23 million that the legislature has given us in the 24 state budget, and this is how it will apply to all 25 of the counties. KING COURT REPORTING SERVICE 68 1 Now, obviously, the numbers will be reworked 2 slightly because there will be $300 that Marion 3 County won't get, but you guys get the gist of it. 4 The formula has some real quirks. Yes, ma'am. 5 MS. CHARTOFF: Mike, do you think that this 6 formula is manipulatable? Because I noticed that 7 -- it looks like some circuits are getting higher 8 percentages of funding than a lot of others. 9 MR. SHAPIRO: There are two of the three 10 factors that cannot be manipulated. If the 11 county's population is what the census bureau says 12 it is, and the county spends what the county 13 spends. 14 The only variable that can be manipulated, 15 and I think that's an inarticulate word, would be 16 the caseload. It goes to how many cases are being 17 assigned. 18 What we found, though, is if there is a low 19 cost to case ratio, counties that spend very 20 little on cases, and there are several counties 21 that are spending less than $100, get a windfall 22 out of the formula. I don't know that that's 23 intentional, but it is a result of the formula. 24 Now, one might say that the reason that 25 windfall is there is the county would improve its KING COURT REPORTING SERVICE 69 1 program and get closer to the state-wide average. 2 Marion County is not the lowest. It is not the 3 cheapest cost per case, but at $74 it is pretty 4 inexpensive. The state-wide average last year was 5 $285. 6 There are some programs that are running at 7 20 percent of the average. Do I have concerns 8 about them? You bet I do. 9 MR. KURTZ: Do you or the council have some 10 specific suggestions for improvement of the 11 formula? 12 MR. SHAPIRO: I think one of the things that 13 you ought to consider is whether we should go to a 14 straight offset of expenses and then what you 15 spend is what you get back. 16 Now, we also need to increase the funding 17 because the funding the state provides is woefully 18 low. 19 MR. KURTZ: What you spend is what you get 20 back, but obviously not dollar for dollar. 21 MR. SHAPIRO: No. It would be a percentage. 22 MR. KURTZ: Right. 23 MR. SHAPIRO: What's happening now is the 24 counties that are spending the least are getting 25 the most back. And I don't think the legislature KING COURT REPORTING SERVICE 70 1 intended it that way. And it took 12 year of 2 funding counties for people to realize what was 3 going on. Less for us. It's hard to get the word 4 out. 5 Okay. Also talked about clerks and 6 sheriffs. Since 1993 Superior, State, Magistrate 7 Court clerks and the sheriffs have been required 8 to put certain funds in interest bearing accounts. 9 Typically it's funds that are put into the 10 registry. That's the court clerks' escrow account 11 where the interest has not been designated for one 12 of the parties. 13 Sheriffs' funds are typically cash funds. 14 The clerks and sheriffs gather that interest on a 15 monthly basis, they transmit it to us, we in turn 16 put it into a very high interest bearing account 17 that the State Department of Treasury maintains. 18 Last year it resulted in a record $1.86 19 million in funding that goes back to the council. 20 And so it's about a third of the funding that the 21 state provides. It's matched up with clerks' and 22 sheriffs' interest. 23 We added the Probate Courts last year only 24 when the sheriff transfers a cash bond. We had a 25 problem. There are 91 counties that use their KING COURT REPORTING SERVICE 71 1 Probate Courts like Traffic Courts. 2 If somebody was arrested, posted a cash bond 3 with a sheriff and the case was transferred, the 4 bond was transferred to the Probate Court's 5 clerk's office. The code didn't cover it, so we 6 worked with the probate clerks. We don't want any 7 of the widows and orphans' money. We just got the 8 cash bonds. 9 All of the funds that are collected through 10 the clerks and sheriffs go back to the county. 11 $1.86 million was distributed last year to the 136 12 counties that participated, okay? 13 And that $1.86 million came from a 14 combination of the interest that was transmitted 15 by the clerks and sheriffs, and the interest that 16 was generated by our accounts once it was 17 received, okay? 18 It, too, has had some quirks. Counties that 19 don't participate in our grant county funding 20 formula program have to contribute. The code 21 applies to all 159 counties, but they don't 22 receive distributions. 23 You see, there are some counties that are 24 contributing that aren't getting anything. 25 Conversely, counties that are exempt, and they can KING COURT REPORTING SERVICE 72 1 get an exemption if the service charges on the 2 bank account would routinely exceed the interest 3 that they would generate. They still get these 4 distributions. 5 And, finally, the amount of money that a 6 county contributes, because it's being distributed 7 back out on the formula, has no bearing on the 8 money they get. 9 The Fulton County lost $100,000 in the 10 transaction last year. They provided that much 11 more interest than they got back, according to the 12 formula. And so there are some winners and losers 13 in clerks and sheriffs, and it all goes back to 14 the funding formula. Okay. 15 This is the steady rise in indigent defense 16 costs. We are estimating that indigent defense in 17 the next cycle, and that's the calendar 2001 data, 18 would cost the state approximately $54 million. 19 And that's based -- this increase here is 20 not based on the 20 percent increase here. It's 21 based on an average across those six years, which 22 is a little over 10 percent. 23 And so it's a conservative number. It 24 probably will exceed $55 million. 25 JUDGE BIRCH: Mike, that includes state KING COURT REPORTING SERVICE 73 1 funding and county funding? 2 MR. SHAPIRO: Yes. This is what it costs to 3 run indigent defense. Remember what we do, Stand, 4 is we offset. If you're a county and you spend 5 $10 this year we'll give you 11 cents next year, 6 or a dollar and 10. 7 JUDGE BIRCH: Help me with this. I know 8 we've seen the statistics before, but it would be 9 good to refresh my recollection. Where does 10 Georgia stand on a per population -- I guess 11 that's the -- you get the apples and the oranges. 12 MR. SHAPIRO: Per capita funding for 13 indigent defense? 14 JUDGE BIRCH: Per capita funding versus the 15 rest of the country. 16 MR. SHAPIRO: We're at or about 38, but 17 you've got to recognize that of the 11 counties - 18 11 states below us, none of them provide no 19 funding. And so we're third to last. 20 JUDGE BIRCH: Third to last among the states 21 that provide funds? 22 MR. SHAPIRO: Among the states that provide 23 something, right. Texas went from that list below 24 us and jumped way ahead of us with $19.2 million. 25 If you'll hold it for a minute so that I can KING COURT REPORTING SERVICE 74 1 finish. I'll be happy to answers questions. I 2 just want to make sure we cover it all. 3 The average last year was $287.89 a case. 4 And two