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 November 28, 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 PROFESSOR PAUL KURTZ 3 JUDGE A. HARRIS ADAMS MR. C. WILSON DUBOSE 4 MS. AASIA MUSTAKEEM JUDGE LAWTON STEPHENS 5 MR. R. WILLIAM IDE, III MR. CHARLES C. CLAY 6 JUDGE STANLEY F. BIRCH MS. FLORA DEVINE 7 JUDGE C. ANDREW FULLER REPRESENTATIVE PAUL HOLMES 8 MR. ROBERT E. KELLER MR. CHARLES T. LESTER, JR. 9 GUESTS PRESENT: 10 MS. PHYLLIS BLANTON, AOC 11 MS. EMILY W. WARD, BELLSOUTH MS. KENDALL BUTTERWORTH, BELLSOUTH 12 MS. LISA KUNG, STATE OF GEORGIA MR. CHRIS ADAMS 13 MS. ALI MARIN MR. OLIVER KELLER 14 JUSTICE CAROL W. HUNSTEIN MR. JAY B. MARTIN, AOC 15 MR. MICHAEL B. SHAPIRO, GIDC MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN 16 RIGHTS MR. ROBERT HOLT, ANTIOCH COLLEGE 17 MR. JAMES LEE SCOTT MS. GINNY LOONEY 18 MR. HULETT H. ASKEW MR. MARK MIDDLETON 19 MS. C. EZZERD, ATLANTA JOURNAL-CONSTITUTION EDITORIAL 20 MR. TOM BOLLER, STATE BAR OF GEORGIA MS. ZAHRA KARINSHAK, GOVERNOR'S OFFICE 21 MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN RIGHTS 22 REVEREND TIM REED, GEORGIA COALITION FOR THE PEOPLE'S AGENDA 23 MR. RICHARD RING MR. LANCE STEWART 24 MR. BILL RANKIN, ATLANTA JOURNAL-CONSTITUTION MS. CHARLENE MORRISEAU 25 MS. TIFFANY BROWN KING COURT REPORTING SERVICE 3 1 PRESENTERS: 2 THE NORTH CAROLINA EXPERIENCE 3 MS. DANIELLE M. CARMAN, ASSISTANT DIRECTOR, NORTH 4 CAROLINA OFFICE OF INDIGENT DEFENSE SERVICES 5 MR. JOSEPH B. CHESHIRE V, COMMISSIONER, NORTH CAROLINA COMMISSION ON INDIGENT DEFENSE SERVICES 6 MR. JOHN RUBIN, PROFESSOR, SCHOOL OF GOVERNMENT, 7 UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL 8 REPORT ON OCTOBER 18, 2001, OBSERVATION OF HALL SUPERIOR COURT 9 MS. MAREA BEEMAN, VICE PRESIDENT, THE SPANGENBERG 10 GROUP 11 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 CHAIRMAN MORGAN: Good morning, everyone. 3 We've got a very interesting session this morning 4 so we'd like to go ahead and get started. 5 First of all, what I'd like to do is stick 6 to our tradition of going around the room and 7 introducing ourselves so we all know who is here. 8 I'm Charles Morgan. I'm chair of the 9 Commission and why don't we start with the 10 Commission members. 11 MR. IDE: I'm Bill Ide, private practitioner 12 in Atlanta. 13 MR. KURTZ: I'm Paul Kurtz. I'm on the law 14 faculty for the University of Georgia. I'm a 15 reporter for the Commission. 16 MR. KELLER: I'm Bob Keller. District 17 Attorney for Clayton County. 18 JUDGE BIRCH: I'm Stan Birch. I'm a judge 19 here in town. 20 CHAIRMAN MORGAN: And we'll pass on our 21 speakers just for a moment, and Paul why don't you 22 continue? 23 REPRESENTATIVE HOLMES: I'm Paul Holmes from 24 Monticello, Georgia. 25 MR. DUBOSE: I'm Wilson DuBose and I'm with KING COURT REPORTING SERVICE 5 1 a law firm in Madison, Georgia. 2 MS. MUSTAKEEM: And I'm Aasia Mustakeem and 3 attorney at Powell, Goldstein, Frazier and Murphy 4 in Atlanta. 5 CHAIRMAN MORGAN: We know who you are, 6 Michael. If we can go around this way. 7 MR. SHAPIRO: Good morning. I'm Mike 8 Shapiro. I'm director of the Georgia Indigent 9 Defense Council. 10 MR. MIDDLETON: I'm Mark Middleton. I am 11 with the state legislative representatives. 12 MR. SCOTT: I'm Jim Scott. 13 MR. HOLT: I'm Bobby Holt with the Southern 14 Center for Human Rights. 15 MR. BRIGHT: Hi. Steve Bright with the 16 Southern Center for Human Rights. 17 MS. KUNG: Lisa Kung, Southern Center. 18 MR. KELLER: I'm Oliver Keller, and I used 19 to be on the United States Parole Commission, one 20 of Jimmy Carter's appointments. 21 MS. WARD: I'm Emily Ward, BellSouth 22 Corporation. 23 MS. BUTTERWORTH: I'm Kendall Butterworth 24 with BellSouth. 25 MR. ADAMS: Chris Adams with National KING COURT REPORTING SERVICE 6 1 Association of Criminal Defense Lawyers. 2 MS. MARIN: I'm Ali Marin and I'm the 3 chairperson of the Young Lawyers in Indigent 4 Defense Committee. 5 CHAIRMAN MORGAN: Thank you. I would like 6 to thank Wilson DuBose for arranging our program 7 today, and Wilson has agreed to introduce our 8 speakers. Welcome. I'm very glad to have you. 9 MR. DUBOSE: Thank you, Charles. As you 10 know, we have had visits by representatives from 11 other states in earlier meetings that have faced 12 the issues that we're facing in their states and 13 they have given us an idea of what they've done to 14 resolve the various issues. 15 We are very pleased to have with us today 16 three representatives from North Carolina to tell 17 us about the experience that they have had, both 18 with the formation of their own Blue Ribbon 19 Commission as well as the follow-up in the 20 legislature and beyond. 21 We have with us Joseph Cheshire, who is a 22 member of the Blue Ribbon Commission in North 23 Carolina and is now a commissioner on the North 24 Carolina Commission on Indigent Defense Services. 25 He is a partner in Cheshire, Harper, KING COURT REPORTING SERVICE 7 1 Schneider, Wells and Barnes, I believe. Is that 2 in Raleigh? 3 MR. CHESHIRE: That's in Raleigh. 4 MR. DUBOSE: And sitting beside him is John 5 Rubin, who is a professor at the School of 6 Government at the University of North Carolina at 7 Chapel Hill. 8 John was instrumental in the work of the 9 Blue Ribbon Commission and also appears to be 10 active in the work on the ongoing Commission of 11 Indigent Defense Services. 12 We also have Danielle Carman, who is an 13 attorney in Raleigh who is the assistant director 14 of the North Carolina Office of Indigent Defense 15 Services, which was set up. 16 We are very pleased to have them here today. 17 They are going to discuss with us their experience 18 in terms of the operation of their Blue Ribbon 19 Commission, the findings and the results of their 20 work as well as the legislative follow-up that 21 resulted from the Blue Ribbon Commission's 22 recommendation. 23 And there will be plenty of time for 24 questions and answers after their presentation, 25 and so I'll leave it to them and they can do it in KING COURT REPORTING SERVICE 8 1 whatever order they see fit. 2 MR. CHESHIRE: We do want very much for you 3 all to ask us questions about what's happening in 4 North Carolina. We have had the opportunity to 5 read the brief history of the Georgia Indigent 6 Defense Council. It was interesting and I would 7 say troubling. 8 It helped us to understand the significant 9 differences between the problems that you all face 10 here in Georgia with the indigent representation 11 and the things that we have faced in North 12 Carolina, and we thought we'd give you a little 13 brief overview about indigent representation in 14 North Carolina and kind of how we got where we 15 are, and I'll start with that. John is a great 16 historian of that, and so he may jump in. 17 In the early '60s in North Carolina, which 18 is about the time it seems from reading you all's 19 book that you were beginning to grapple with the 20 problems that you had with indigent 21 representation. North Carolina had a system very 22 much like yours in which the counties and the 23 various judicial districts or counties ran their 24 courts and the state really didn't run the Court 25 system and there was a decision made that we KING COURT REPORTING SERVICE 9 1 wanted to consolidate judicial services in North 2 Carolina under one umbrella, and have consistent 3 rules, consistent courts. 4 And there was legislation that went in 5 establishing consistency, establishing judicial 6 districts, putting all of the judges in the 7 judicial district under one umbrella and under, 8 really, under state control. 9 As John reminded me this morning, because I 10 asked him how we in North Carolina were lucky 11 enough to have state funding for our indigent 12 system that you all don't have, he reminded me 13 that as the prosecutors and the judges and the 14 system all but came under one umbrella, the 15 indigent representation just kind of eased itself 16 in at the same time as a natural component. 17 And so from the early '60s we have had in 18 North Carolina state funding of indigent services, 19 or indigent criminal services. Now, obviously in 20 the early '60s the funding was not great, the 21 representation was not great, there was never any 22 real controls built into the system, there were 23 never any guidelines built into the system, there 24 was never any quality control built into the 25 system. KING COURT REPORTING SERVICE 10 1 And, basically, what was happening is that, 2 as you all seem to have now, although it's county 3 funded, the local judges were in control of who 4 would be appointed to indigents, who indigents 5 were, what kind of services you got if you were 6 appointed, what kind of fees you got paid if you 7 were appointed to represent indigents. 8 And indigents, of course, had very little 9 say and no political power, as they don't have 10 today. 11 We did have a history in North Carolina, 12 however, and I am a strange person in that I'm a 13 fifth straight first born male under the same name 14 that practiced law in North Carolina, and so my 15 family goes a long, long way back. 16 We had in North Carolina, and still have, a, 17 what I would call a no bless or bleed approach 18 from the bar to the poor people of the State of 19 North Carolina. 20 The ones I say are the graduates of the 21 University of North Carolina like to say that it 22 comes from the good, forward thinking, education 23 that we received there and that the lawyers 24 received in law school, but there was a true 25 history in North Carolina of distinct compassion KING COURT REPORTING SERVICE 11 1 and distinct duty within the bar. 2 A feeling of duty that lawyers had to 3 represent poor people, not just in indigent cases 4 but in civil cases, and we came to the indigent 5 representation with an underlying feeling within 6 the bar that that was important. 7 We do know from our study that many other 8 states don't have that kind of feeling within the 9 bar, within the society, but we did have that. 10 As indigent representation grew, as the 11 United States Supreme Court started expanding the 12 rights for indigents, the money that was paid to 13 fund indigent representation also grew, and it was 14 appropriated by the -- what we have, and I'm sure 15 you have here in the Administrative Office of the 16 Courts, which is the group that funds all of the 17 administration of justice in North Carolina from 18 the prosecutors, to the public defenders, to the 19 judges, to the court clerks, to everybody. And 20 they would lobby on behalf of their need to pay 21 lawyers, but there was never any control. 22 The individual judges -- and we, like 23 Georgia in many ways, I suppose, we have a very 24 diverse state. As you know, we have large urban 25 areas and we have a huge I-85 corridor, and it's KING COURT REPORTING SERVICE 12 1 very urban running from Raleigh, to Durham, to 2 Greensboro, to Winston Salem. Really starting in 3 Wilmington now, but running to Charlotte. 4 And then we have, basically, the four 5 corners of our state that are very rural. 6 Northeastern and Southeastern North Carolina are 7 very poor. The mountains of North Carolina are 8 very poor. 9 And we had tremendous differences in 10 indigent representation from metropolitan areas to 11 rural areas. The quality of representation 12 differed greatly. 13 And the control, without stepping on 14 anyone's toes in here, the control that the 15 judiciary had over the process of indigent 16 representation was -- was, and was recognized to 17 be as early as the late seventies, far too great. 18 And there were significant abuses in the 19 system that were compounded by the judiciary and 20 the judiciary's desire to control everything that 21 went on in his or her courtroom, or his or her 22 county, or his or her judicial district. 23 And it was found in many areas, particularly 24 the rural areas, that the control of the judiciary 25 over the process of indigent representation was KING COURT REPORTING SERVICE 13 1 causing problems not just in quality control, 2 because many of the judges wanted to run their 3 calendars so quickly they didn't care about the 4 quality of the representation of the indigent, but 5 also that the judges would reward significantly 6 their political friends and would punish 7 significantly their political foes. 8 So that we found as early as the seventies 9 that there were lawyers in various districts in 10 North Carolina that were getting paid huge amounts 11 of money for court-appointed work, and there were 12 lawyers who were diligent lawyers who wanted to do 13 court-appointed work that couldn't do it because 14 the judges wouldn't appoint them to cases. 15 We also found in North Carolina that, for 16 the most part, and I will say there were and are, 17 and becoming more and more, notable exceptions to 18 the rule; that the District Attorneys of North 19 Carolina, who are a very powerful political force, 20 were opposed for, I think -- I've been a 21 prosecutor and a defense lawyer, but I think 22 obvious reasons, were opposed to the increase in 23 the quality of the indigent representation. 24 Because the higher the quality of indigent 25 representation, the more difficult the District KING COURT REPORTING SERVICE 14 1 Attorney's job is in moving his or her calendar, 2 and in winning cases, and in getting re-elected by 3 winning wonderful victories that are published in 4 the press. 5 We also saw that the system, as far as the 6 financial control, the money was increasing 7 dramatically without any controls. Judges would 8 just award fees and then they would order the 9 state to pay the fees, and the state had to pay 10 the fees so that the money would increase and 11 increase. 12 And, of course, as we all know, who work in 13 the political process, who work with legislators, 14 that there is only so much money to go around. 15 And so these problems began to be addressed 16 in North Carolina. And I will say in North 17 Carolina we also have a very committed and 18 realistic criminal defense bar. 19 Criminal defense lawyers -- as I'm sure you 20 all know, and I was very surprised to see that 21 their representation on this Commission is either 22 very small or non-existent -- criminal defense 23 lawyers tend to be a group of people that are very 24 hard to coalesce to do anything. 25 They're all independent minded. They're KING COURT REPORTING SERVICE 15 1 all -- half of us are about three-quarter 2 paranoid, and they're hard to get together as a 3 group. 4 But in North Carolina, starting in the late 5 '70s, early '80s, I created a section of criminal 6 defense lawyers in North Carolina which became a 7 very cohesive group, and we really took the 8 criminal defense lawyers who were successful 9 privately and got them together to create a 10 powerful force that then brought the other lawyers 11 that did the indigent representation in with us so 12 that they would feel that there was some political 13 power behind them. 14 And the successful criminal lawyers, I think 15 in any state, tend to be fairly politically 16 powerful, at least people that people listen to. 17 So we were able to bring the criminal 18 lawyers together and we began to talk about ways 19 in which we could try to advance the quality of 20 criminal indigent representation. 21 And I say that to you because in North 22 Carolina our No. 1 goal has always been quality of 23 representation for the indigent. It hasn't been 24 money, although I will talk to you about how we've 25 tried to use quality and are trying to use quality KING COURT REPORTING SERVICE 16 1 to control the money, but it's always been to try 2 to raise the quality of representation. 3 And we have tried to talk to the judges, and 4 I believe many of them now understand, and the 5 prosecutors, and I believe many of them now 6 understand that unlike what they've always been 7 afraid of, and that is like I read in this book, I 8 have to tell you all I'm a fairly plain spoken 9 fellow. 10 Some of the things that the judges wrote 11 about indigent representation in here are some of 12 the most frightening things that I have ever seen 13 in my life, but we've managed to impress upon them 14 and prove to them that actually raising the 15 quality of indigent representation saves judicial 16 time, saves time for prosecutors, lessens the 17 amont of trial, quickens the reasonable plea, and 18 at the same time saves costs. 19 And that's just the truth. It's the truth 20 anywhere you go. You get a great person that 21 comes and fixes your computer, they're going to 22 fix your computer in 90 minutes and charge you for 23 90 minutes. 24 If you get a lousy person that comes in to 25 fix your computer they're going to work three KING COURT REPORTING SERVICE 17 1 days, they may charge you a lesser rate, but 2 you're going to spend more money. 3 So we began to understand, and we began as 4 lawyers to try to educate the judges in a friendly 5 way. And this is a long process in America. Of 6 course, we live in a McDonald's society where we 7 want our hamburger, we want it right now. 8 But we've began to understand that this is a 9 process that is going to take maybe decades, and 10 in fact it did, and so we began to try to come 11 together as a bar. 12 We also were very fortunate in that in our 13 state bar, our licensing agency, criminal lawyers 14 have always had a place. Like the president of 15 our state bar at the present time is a criminal 16 lawyer from Charlotte. 17 And in our bar association we have a 18 criminal justice section in which prosecutors, 19 judges, and defense lawyers have always come 20 together under the criminal justice section and 21 worked on these issues in a compromising, 22 gentlemanly, ladylike, non-adversarial kind of 23 way. 24 And so we have used those groups. The trial 25 lawyers who are advocates, the bar association to KING COURT REPORTING SERVICE 18 1 try to bring everyone together, the licensing 2 agency that worries about quality of legal 3 representation, we have tried to bring all of 4 those folks together so that we would have an 5 understanding. 6 And yet we still face tremendous obstacles 7 from legislators who don't want to spend money on 8 poor people. I mean, after all they're criminals. 9 Why do you want to spend money on criminals? And 10 their lawyers, too. 11 So you have a double whammy. Spend money on 12 lawyers and criminals. They are the two worse 13 things in society. 14 And we also, of course, have had tremendous 15 opposition from judges, although your judges seem 16 to be more politically powerful than our judges. 17 But in the early '90s there was a Study 18 Commission in North Carolina that the minority 19 presentation said that we should have a state-wide 20 independent commission to run indigent defense. 21 That did not go anywhere. But it was out 22 there, and it was a Study Commission, and it was 23 well thought out and it was well represented. 24 We kept going, and our system was 25 functioning reasonably well. But, again, we had KING COURT REPORTING SERVICE 19 1 no quality control. We got to the point in North 2 Carolina where if you had a law license you could 3 represent indigent defendants. That was it. 4 I mean, and the ones of us who have always 5 been interested in this were so, you know, 6 fascinated by how our profession seems to be one 7 of the only professions that will take a person 8 straight out of school and get a degree and loose 9 them on the public that depends on them to try to 10 protect their basic freedoms. 11 But it got to that point, and we began to 12 realize that the quality of indigent 13 representation, particularly as our state was 14 growing more urban, particularly as our population 15 was growing, as our crime rates were growing, that 16 as our caseloads were growing, that the quality of 17 indigent representation was going down. 18 And, of course, we have the problem that I'm 19 sure you all have as well of spending enormous 20 amounts of money in capital representation. And 21 capital representation is very important to our 22 Commission. It is very important to our lawyers 23 to try to get ahold of the costs and the quality 24 there. 25 So the lawyers who were very committed to KING COURT REPORTING SERVICE 20 1 indigent defense -- we have a lawyer in North 2 Carolina whose name is Mary Ann Tally, who just 3 received the National Association of Criminal 4 Defense Lawyers Indigent Representation Award and 5 other awards, has been a dedicated public defender 6 for years. 7 We think she kind of took it upon herself to 8 begin to lobby certain legislators that we thought 9 would be interested in the quality of legal 10 representation and the control of costs because I 11 want to say to you again that those two things go 12 hand in hand. 13 The quality and control of costs go 14 absolutely hand in hand, and it was determined 15 that there would be another legislative Study 16 Commission. 17 Now, I failed to tell you that at that time 18 in North Carolina we had 39 judicial districts and 19 in those judicial districts we had 11 public 20 defenders offices. The rest of the judicial 21 districts were all court-appointed lists, 22 controlled and run by the various local bar, 23 supposedly, and the courts with no quality 24 control. 25 But in any event, it was established that we KING COURT REPORTING SERVICE 21 1 would have a Study Commission. And what was 2 important about that Study Commission is that the 3 makeup of that commission was distinctly different 4 than the makeup of this commission. 5 And I don't say that's good or bad, but the 6 one thing that we did in our Study Commission, and 7 we have managed to do all the way along, is to 8 exclude prosecutors. 9 And it was the opinion of the legislative 10 study -- the people who set up the legislative 11 Study Commission, and then the legislature when 12 they established the commission, that prosecutors 13 should be completely excluded from the running of 14 the indigent defense system. 15 We did not exclude judges, and appointed on 16 our Study Commission were a Superior Court judge, 17 we had a District Court judge, that is our 18 misdemeanor court, the Chief Justice appointed 19 someone, the bar association appointed someone, 20 the trial lawyers appointed someone, the public 21 defenders appointed someone. 22 And so we had a commission that was weighted 23 towards, and the people picked for that Study 24 Commission were carefully picked to be people that 25 were interested, again, in the quality, and that KING COURT REPORTING SERVICE 22 1 were strong enough to withstand the harping that 2 goes along with what you have to do to establish 3 quality representation: Necessary CLE, necessary 4 qualifications for lawyers, screening of lawyers 5 to be on various lists, capital lists, felony 6 lists, or misdemeanor lists. 7 But the Study Commission that we had was 8 dedicated, and I don't think we came to it with 9 the dedication that we would try to establish a 10 Commission, but we were -- we came to it with the 11 dedication that indigent representation in North 12 Carolina would be when we got through, when we got 13 through it is a long process in which we're only 14 starting to go down the road, but when we got 15 through indigent representation in North Carolina 16 would be the best representation in America. 17 There may be other places that have as good, 18 but there wouldn't be anyplace that would have 19 better. But we were committed to the fact that 20 because a person was poor did not mean he or she 21 should have lesser representation than someone 22 that was rich. 23 And that is what drove that Study 24 Commission, and drove the legislature, along with 25 the fiscal -- with our commitment to get hold of KING COURT REPORTING SERVICE 23 1 the fiscal aspects of it to form this commission 2 that we have. 3 And then for the commission, the 4 establishment of the members for the commission 5 were also carefully screened and carefully picked, 6 and I'll let John and Danielle talk about that, 7 and where we've gone forward. 8 But we would say to you, and I don't mean to 9 lecture, I'm not trying to lecture, but we would 10 say to you that unless there is an absolute 11 commitment that poor people will receive good 12 lawyers, and that those lawyers will receive some 13 kind of compensation, adequate compensation. 14 Criminal indigent lawyers shouldn't get 15 rich. They shouldn't do that if they want to get 16 rich, but they shouldn't have to pay for it 17 themselves. They should have some ability to have 18 a reasonable income. 19 But if there is not that commitment there, 20 that bottom line commitment, and if the people 21 working on it aren't willing to make significant 22 compromises and understand the political 23 realities, and take off their striding hat and put 24 on their compromising hat with the goal of good 25 indigent representation, it will never work. KING COURT REPORTING SERVICE 24 1 And that takes the judges being willing to 2 give up some control and understand that quality 3 will make their lives easier. 4 Our judges, most of them now are actually 5 happy they don't have to deal with paying lawyers. 6 They're actually relieved that they had to give up 7 that thing. They didn't think they would be, but 8 they actually are. 9 If the District Attorney -- we live in a 10 state, we are the only state in which the District 11 Attorneys set the calendar, or are in control of 12 the calendar, and we are fighting constant battles 13 of indigent representation about how District 14 Attorneys will call your case or make you be in 15 court on Monday morning and they don't like you or 16 your clients and they make you sit there on Friday 17 afternoons, and we as the Indigent Commission have 18 to pay the lawyers for 30 hours of sitting there 19 waiting and getting nothing done. 20 And so we have these battles that you all 21 don't have to fight, but if everybody understands 22 and they're willing to make those kinds of 23 compromises then you can get to where we are in 24 North Carolina. 25 Where we are with our Study Commission is KING COURT REPORTING SERVICE 25 1 just beginning to raise the calf that's going to 2 grow to the cow that's going to be healed and 3 fixed up and sent to where you live to be able to 4 be put in the grocery store to be able to be 5 bought, to be able to be taken home to get the 6 grill started to cook the hamburger to eat. 7 I mean, that's where we are to go back to my 8 McDonald's analogy, but we are there and we are in 9 a good place, but, again, we are very different 10 than you are because we started with state 11 funding, and that's where, when we look at your 12 situation we look at it with some trepidation for 13 you. John. 14 MR. RUBIN: What we had in mind was for me 15 to talk a little bit about the nuts and bolts of 16 our Study Commission, and for Danielle to talk 17 about some of the work that our Indigent Defense 18 Commission is undertaking, but I want to be sure 19 that we address the things that you're most 20 interested in. 21 We can stop for questions here or I can 22 proceed with that. 23 MR. IDE: I just didn't quite follow it. In 24 other words, you went one time through a 25 commission, and there was a minority board that KING COURT REPORTING SERVICE 26 1 said there ought to be a state-wide independent 2 group, and that wasn't picked up on. 3 MR. RUBIN: The majority report was 4 essentially that things were working okay and they 5 ought to stay the same, and I wasn't involved in 6 this. I can't speak who the members were who 7 reached that conclusion. 8 MS. CARMAN: That was in the early '90s. 9 MR. IDE: Early '90s. And then there is 10 this legislative commission that you're talking 11 about now. Now, it's now -- 12 MS. CARMAN: It issued a recommendation in 13 '98 saying that we should form this actual 14 commission that will be the governing body to 15 control things. 16 MR. IDE: Is the commission now in 17 existence? 18 MS. CARMAN: Yes, it is past the Study 19 Commission stage and it has passed legislation and 20 Joe also serves on that commission. 21 MR. IDE: Okay. 22 MR. CHESHIRE: We are now functioning -- we 23 are beginning to function. 24 MR. IDE: But you have your legislative 25 mandate? KING COURT REPORTING SERVICE 27 1 MR. CHESHIRE: We have our legislative 2 mandate. We do now currently control indigent 3 representation in North Carolina. The independent 4 commission. 5 MR. RUBIN: In your materials you should 6 have a copy of the legislation that passed, which 7 looks something like this. You also have -- you 8 should have the Study Commission's report, which 9 includes the original proposed legislation, the 10 initial report that the actual commission, the 11 actual commission -- a report of the work that it 12 has begun to undertake, and then a set of rules 13 that the commission, that the new commission 14 adopted. 15 JUDGE BIRCH: What kind of money, I guess so 16 that we can compare apples to apples, what the 17 state is spending on a per case basis. Something 18 that we can compare to where we are and then can 19 you talk to us a little bit about whether or not 20 if that cost per case has gone up or gone down, or 21 what's happened, and were any financial studies 22 done for use of the legislature to induce them or 23 to move to a centrally managed system? 24 MR. RUBIN: You will find at the back of one 25 of these documents it says, "Indigent Defense KING COURT REPORTING SERVICE 28 1 Study Commission" on the front. If you flip to 2 the back you will see some indigent defense 3 training data. 4 JUDGE BIRCH: Yeah. 5 MR. RUBIN: And this was something that the 6 Administrative Office of the Courts prepared, and 7 they did have people who could track the 8 expenditures, but they had, really had no 9 authority to monitor quality of services or to -- 10 or really to effect costs. 11 It does show the total amount of money 12 that's spent, and it shows the amount of increase 13 during that 10-year span. This was a motivator to 14 the legislature to pursue the Study Commission, 15 and then to enact the legislation. 16 The idea that with an independent agency 17 dedicated to and with the resources to oversee 18 indigent defense that the state could improve 19 quality and also begin to address how resources 20 are spent. 21 In response to your question about data, one 22 of the problems with the system that we had is 23 that the data was very inconsistent. And so I 24 have trouble breaking it down for you in a cost 25 per case way. KING COURT REPORTING SERVICE 29 1 MS. CARMAN: We spent about $54 million last 2 year on private funded counsel, and we don't have 3 a cap in our capital cases, and so what we're 4 seeing now is in some capital cases we're spending 5 upwards of $100,000 per lawyer at the trial level. 6 Do you all have two lawyers or one at the 7 trial level in capital cases? 8 MR. CLAY: We only have two. At least that 9 I know of. 10 MS. CARMAN: And we're actually now in the 11 process of gathering a lot of that per case data 12 that we did not have. And so no, I don't think we 13 have exact figures to justify getting a 14 centralized commission, which I think is what you 15 were trying to get at, I believe. 16 JUDGE BIRCH: No. What I was trying to get 17 at is, you know, because we don't have state 18 funding to begin with here, and it's tremendous 19 resistence, I mean, particularly with governors so 20 far as against state funding, the only way that I 21 suspect, and I guess I'm just talking to myself, 22 is that everything that embraced state funding is 23 to somehow demonstrate that resources can be more 24 frugally used here. 25 I mean, I was looking at this. Everything KING COURT REPORTING SERVICE 30 1 seems to be going up. Nothing seems to be coming 2 down. 3 MS. CARMAN: Well, that's before we came 4 into existence. 5 JUDGE BIRCH: Oh, this is all before you 6 all? 7 MS. CARMAN: Right. 8 JUDGE BIRCH: I see. Have you developed any 9 figures that show after the implementation of some 10 of these things costs? Again, it's very difficult 11 I know, but if you're looking at a moving target 12 your population is going up and so your costs are 13 going to go up, naturally, but I'm trying to see 14 if there is anything out there that we can use to 15 demonstrate that when these kinds of things are 16 put in, money is saved. 17 MS. CARMAN: We actually did not start 18 taking over until July 1 of this year, and so 19 we're talking about four months that we've been 20 actually actively managing the costs, 21 expenditures, and things like that and so we don't 22 have any data yet, though we are coming in under 23 our line budget at this point, the cases that my 24 office directly manages. 25 Where as the cases that are still under the KING COURT REPORTING SERVICE 31 1 control of judges, and I'll talk a little bit 2 about that division later, are way over budget. 3 That's where the escalating costs looked like were 4 coming from. 5 MR. DUBOSE: Say it again. 6 MS. CARMAN: The judges right now, the cases 7 are still within their control which is, 8 basically, non-appeals, we're in control of all of 9 appeals as well as all of the potentially capital 10 cases. And so if a case starts out and it's death 11 eligible the compensation comes through my office 12 and we directly set it. 13 We are under our line budget for those 14 categories of cases whereas the cases that still 15 remain with the judges which are, basically, 16 everything else, the District Court and the felony 17 level, they're about $3 million over budget. 18 And as we are doing data entry it's becoming 19 pretty clear why, which is just that they're 20 paying really high fees. 21 MR. CHESHIRE: We will eventually take over 22 those payments, too. We just haven't been able to 23 do it all yet, but the Governor has reduced our 24 funding for this year by millions of dollars so we 25 are having to come in and we are having -- we're KING COURT REPORTING SERVICE 32 1 being forced, actually, to show fiscal 2 responsibility because we don't have the money. 3 MR. DUBOSE: Is that across-the-board budget 4 cuts. 5 MR. CHESHIRE: Yes. And we just sent a 6 letter out to the lawyers, they know this, but 10 7 days ago telling them that we were thinking about 8 instituting fee schedules in District Court for 9 misdemeanors, and the private bar got up in arms 10 about that, and six days later they got the letter 11 from us to the judges asking all of the judges to 12 reduce the payments by 10 percent. 13 And so we have been having some pretty 14 violent meetings with our fellows in the bar in 15 the last week. 16 JUDGE BIRCH: To what extent does the bar -- 17 do you have a -- what's the word for that? A 18 state controlled bar? 19 MR. CHESHIRE: We have a state bar. 20 MR. LESTER: Integrated is the word. 21 JUDGE BIRCH: To what extent, if any, does 22 members of the bar contribute financially to the 23 system, if at all, and have they ever been asked 24 to do that other than providing services? 25 I'm talking about on a -- we have had one KING COURT REPORTING SERVICE 33 1 recommendation that members of the bar, depending 2 on their years of practice and what kind of 3 practice, I suppose, be assessed so much every 4 year to go into a pot. 5 Part of this is to shame the state, I think, 6 into matching it. That was, I think, part of the 7 the purpose of the proposal, and this has been 8 kicked around and I've read articles in other 9 states about how in Texas they do something like 10 this. 11 Can you comment on that and whether you 12 think that's an effective tool, or is it something 13 that you alienate more than you gain? 14 MR. CHESHIRE: We've never done that, 15 although we do have certain assessments in the 16 North Carolina state bar for our license that go 17 to certain areas. We've never done it with 18 indigent defense. 19 We have over the years, from time to time in 20 various counties, had a chief resident Superior 21 Court judge order lawyers to do indigent 22 representation, but they have always been paid to 23 do it, but rarely has there been a lack of lawyers 24 to do the work, actually, in North Carolina, but 25 there has never been a request of the bar, itself, KING COURT REPORTING SERVICE 34 1 to fund anything. 2 Personally, I'm not opposed to that. I 3 mean, I would actually exempt the lawyers who are 4 on the list for making the payment, and don't 5 think it would be unreasonable for other lawyers 6 as a community service to do that. 7 But I know that from our attempts, our 8 discussions with lawyers that, you know, lawyers 9 who make good money don't mind paying the extra 10 $50, and lawyers who are out there busting their 11 butts making $28,000 a year see that extra $50 or 12 $100 as an awful lot of money to pay for something 13 that they don't feel like they should pay for. 14 MR. RUBIN: If I could go back to your 15 question about the cost impact. We don't have the 16 data yet, but I suspect this commission will see a 17 substantial savings of capital cases because the 18 commission is now responsible for determining 19 qualifications for capital lawyers, screening 20 them, and appointing them in capital cases. No 21 longer is that left to the local judge. 22 The real big cost in capital cases is 23 capital trials. The better the lawyers are up 24 front, the better the support they receive, and 25 the more that expensive proposition can be KING COURT REPORTING SERVICE 35 1 avoided. 2 And so I think that control over appointment 3 of capital counsel is critical as for quality and 4 for cost reasons. 5 MR. KURTZ: And so the theory, as you were 6 saying earlier, the theory is that the better the 7 lawyer is, the more efficient that lawyer is, the 8 less time the trial is going to take, perhaps 9 fewer trials, better pleas, and smaller bills, 10 lower bills. 11 MS. CARMAN: Plus if you end up in a plea 12 you're not having the same kind of appeal costs 13 and post-conviction costs. The post-conviction 14 cases, I don't know what kind of fees you're 15 seeing in this state, but they're phenomenal. 16 They're costing the state a lot. 17 JUDGE BIRCH: Do you have them right at 18 representation? 19 MS. CARMAN: After a conviction. 20 JUDGE BIRCH: After a conviction. And 21 directly on collateral taxes? 22 MS. CARMAN: Yes. 23 JUDGE BIRCH: We don't have that. 24 MR. KURTZ: Trials can be expensive. 25 MR. RUBIN: Sure. And there were an KING COURT REPORTING SERVICE 36 1 enormous number of capital trials. 2 MR. KELLER: Mr. Rubin, I guess I have two 3 questions. One is I want to know about the ratio 4 and the other has to do with funding. 5 You know, one of the things that we hear in 6 Georgia about the state says well, if we take the 7 state funding we want all of the compensation and 8 et cetera. 9 How does this work in North Carolina? How 10 much is at the county level? Does it all come 11 through a big drug bust compensation or whatever? 12 You know, does all of that money come to the 13 state? Does it come to y'all, or to the county, 14 or -- 15 MS. CARMAN: I know that we recoup about six 16 to seven million a year. That goes back into the 17 indigent defense fund, but in terms of -- 18 MR. CHESHIRE: Maybe I can help you. The 19 recoupment from the indigents who are ordered to 20 pay their attorneys, that's about six or seven 21 million dollars, and we're -- we think maybe we 22 can increase that, but that's basically what we're 23 recouping. 24 I mean, somebody gets a 20-year sentence 25 isn't going to pay his $2,000 lawyer fee. But as KING COURT REPORTING SERVICE 37 1 far as the drug bus situation, and we have a very 2 aggressive tax, drug tax, and we have very 3 aggressive forfeitures, most of that money -- much 4 of that money goes back to the state, although a 5 pretty large percentage of it is given to local 6 law enforcement. 7 And so I haven't seen any complaints in 8 North Carolina about the distribution and 9 forfeiture of proceeds, or the distribution of 10 those kinds of proceeds. It's pretty fair. The 11 county still get a good fair share for their law 12 enforcement. And then the rest of it comes from 13 the state, although I don't know how much of that 14 actually goes into the Administrative Office of 15 the Courts for the funding of the court system. I 16 don't know the answer to that. 17 MR. KURTZ: Does that portion that goes to 18 local law enforcement, does it go directly to them 19 or does it go to them through the state? 20 MR. CHESHIRE: It goes directly to them. 21 MR. KURTZ: Off the top or -- 22 MR. CHESHIRE: To use however it is that 23 they want and, you know, as a criminal defense 24 lawyer I've got problems with that, but if I were 25 a county sheriff I would be happy. KING COURT REPORTING SERVICE 38 1 MR. DUBOSE: John, could you and Joe 2 describe the system that you have more of, and 3 explain how you got the independent defense 4 working with the state commission, and how you 5 translated that into some sort of action, and 6 achieved what went to the legislature? 7 MR. RUBIN: As Joe mentioned, we had the 8 Study Commission in the early '90s, which did not 9 recommend any drastic changes. This latest Study 10 Commission was formed in 1998. It took about a 11 year for the appointments to be made, and so we 12 really began working in 1999. 13 And I think actually the failure of the -- 14 the lack of any change resulting from a previous 15 Study Commission may have helped boost the current 16 Study Commission most recently along. It was 17 obvious that not changing things made things 18 worse. And so this Study Commission and the 19 legislature have that behind them. 20 As I go through it, let me point out what I 21 thought were key ingredients to getting the 22 proposed legislation approved. This was a 23 legislative Study Commission. We had that 24 legislative stamp of approval at the outset, and I 25 think those interested in quality went to the KING COURT REPORTING SERVICE 39 1 legislature and said we're concerned about cost, 2 we're concerned about quality, if we can pursue 3 these in an aggressive -- both of those 4 aggressively. 5 As Joe pointed out, I think the composition 6 of the Study Commission was critical. All of the 7 major players were represented: Chief Justice, 8 state bar, the major bar associations, the public 9 defenders association, there was a state Senator, 10 and a member of the state House of 11 Representatives, both key players in the general 12 assembly. 13 And there was, I believe, some ground work 14 laid with those appointing authorities to be sure 15 that the people appointed were committed to 16 quality representation and looking at the big 17 picture. 18 I don't think anybody came in with any 19 preconceived ideas about what they're going to 20 work on, but I think they all had that outlook. 21 The breadth of the charge of the Study 22 Commission, I think, actually ended up being a 23 positive thing. At first it seemed overwhelming. 24 The legislature asked the Study Commission to look 25 at everything: Quality, compensation, uniformity, KING COURT REPORTING SERVICE 40 1 and adequacy, what sort of delivery systems would 2 there be in different parts of the state, public 3 defenders, contract, assigned counsel. 4 And at the initial meetings, as the group 5 tried to tackle those things, they realized there 6 was no way that they could figure out all of the 7 details that the legislature was asking. 8 And I think that led the group pretty 9 quickly to start thinking about how do we come up 10 with a change in management of the system and have 11 that management tackle those issues. 12 Getting into the details of all of those 13 things at the Study Commission level was not 14 feasible. I think once the group -- this was a 15 pretty compressed process. 16 The Study Commission began meeting in 17 September of '99, and by April 2000 it had 18 proposed legislation. 19 I think once the group realized that what 20 they had was a management problem, then I think 21 the direction, or at least possibilities worth 22 pursuing became clear. 23 We had outside presenters, as you did, in 24 states that appeared comparable to us, Minnesota 25 and Kentucky. We had assistance from The KING COURT REPORTING SERVICE 41 1 Spangenberg Group that filled in other -- gave us 2 other information and assistance. 3 We decided not to do a study. There was 4 consensus in the group that there were serious 5 problems, and there was a consensus that more 6 management was needed. 7 There wasn't initial consensus on what the 8 best structure should look like, but there was 9 consensus in the change. 10 JUDGE BIRCH: If I can interrupt you at this 11 point. You mentioned earlier you talked about 12 management and centralization is one of the key 13 things that you all came up up with. I heard 14 earlier that Joe mentioned 11 judicial districts. 15 MR. CHESHIRE: 39. 16 JUDGE BIRCH: 39, I'm sorry. What you all 17 found initially was that 39 judicial districts was 18 the way that indigent defense was provided by 19 virtue of the district, the judge in the district, 20 and did that work? 21 Here we have 159 counties. Each county is 22 in charge of indigent defense through the county 23 commission, and so I'm trying to see, you know, 24 where you were and where we are and whether the 25 same kinds of things can be used or not. KING COURT REPORTING SERVICE 42 1 We have some systemic problems, frankly, 2 that can make it a little rough. 3 MR. CHESHIRE: We were where you are in that 4 regard in the '60s when we consolidated the whole 5 system. We have 100 counties, and we consolidated 6 those 100 counties into 39 judicial districts. 7 MR. KURTZ: Is that the first time that you 8 had judicial districts at all? 9 MR. CHESHIRE: That was the first time that 10 we had judicial districts. 11 JUDGE BIRCH: And that was your first step. 12 MR. KURTZ: And was the consolidation for 13 this purpose? 14 MR. CHESHIRE: No. The consolidation, am I 15 right, John, was for the purpose of bringing 16 uniformity to the justice system in general. 17 MR. KURTZ: In general. 18 MR. CHESHIRE: Prosecutors, local rules, 19 rules of the court, all of that. 20 MR. RUBIN: But in terms of how the programs 21 ran in the judicial districts, I'm not sure if 22 they were -- that we were that different. 23 There are 100 counties, some local county 24 districts, and at the county level there was -- it 25 was at the county level that the method was KING COURT REPORTING SERVICE 43 1 determined. How the lists were created, what 2 lawyers would get on it, how they would get paid. 3 MR. KURTZ: In the 11 circuits that had PDs 4 they were circuit-wide PDs? 5 MR. CHESHIRE: Yeah. They became 6 established significantly afterwards, but they 7 were judicial district-wide PDs. 8 MR. KURTZ: I'm the public defender for the 9 1st judicial district and my office represents all 10 indigent defendants in all of the six counties in 11 my district. 12 MR. CHESHIRE: Sure. Of course, we have a 13 great history in North Carolina. One county 14 getting mad at another county in the same judicial 15 district and all of a sudden instead of having the 16 13 judicial districts we have 13-A, 13-B, 13-C, 17 13-C-A-1. 18 MR. KURTZ: We have a great history of that, 19 too. 20 MR. RUBIN: To establish a public defender 21 office there had to be legislative authorization, 22 obviously a lot of politics surrounding that, but 23 the public defenders, even though they had state 24 money, were essentially independent local offices. 25 The head of the office was selected by the senior KING COURT REPORTING SERVICE 44 1 resident judge. 2 MR. KURTZ: In the circuit? 3 MR. RUBIN: In that district, right. Not by 4 any state. 5 MR. KELLER: I'm trying to get something 6 figured out legislatively, and according to the 7 legislation there was an Office of Indigent 8 Defense Services created run by the director of 9 indigent defense that included the commission 10 within the office of indigent defense services, 11 which was all part of the judicial department, but 12 the budget of your department -- but the office 13 acted independently of the Administrative Office 14 of the Courts, and the budget was approved by the 15 commission and submitted by the commission to the 16 general assembly. 17 MS. CARMAN: That was some quick reading you 18 did. 19 MR. KELLER: Well, am I right so far? 20 MS. CARMAN: Yes. Exactly right. 21 MR. RUBIN: The key component is the 22 independent entity post the judicial branch. 23 MR. KELLER: Now, tell me who is included 24 within the judicial department? I mean -- 25 MS. CARMAN: All the judges, all the KING COURT REPORTING SERVICE 45 1 prosecutors. 2 MR. CHESHIRE: All of the public defenders. 3 MS. CARMAN: Well, I guess the public 4 defenders are in the indigent defense services. 5 MR. CHESHIRE: Clerks. 6 MR. KELLER: Clerks are in there? 7 MR. CHESHIRE: Clerks. 8 MR. KELLER: And would the Administrative 9 Office of the Courts administrate the budget of 10 everybody except your office? 11 MR. CHESHIRE: Yes. 12 MR. KELLER: Okay. Does that mean, then, 13 that the prosecutors, the judges, the clerks and 14 everything will present a budget, and you present 15 a budget, and you're competing basically for the 16 same dollars? 17 Or you could be competing -- I'm trying 18 to -- I'm not trying to put you in conflict, but 19 I'm trying to see that it's not a unified effort 20 in one sense because of your independence in 21 another sense. 22 MR. CHESHIRE: I don't think it would be 23 fair to say we'd be competing for the same dollars 24 on one hand. Then on the other hand we might 25 actually be right in the practical aspect. There KING COURT REPORTING SERVICE 46 1 are only a certain amount of dollars that the 2 legislature is going to give the AOC and give us. 3 The raise in judicial salaries, though, for 4 example, has to go straight to the legislature. 5 The clerks may come and say we want a new computer 6 system that's going to cost us $17 million. The 7 AOC then has to go to the legislature to get an 8 increase in their budget to pay for that $17 9 million. 10 So I don't think we've ever -- maybe 11 somewhere in the working there is competition, but 12 it never has seem to surface in North Carolina. 13 MR. RUBIN: Let me say that there is always 14 competition, but that competition was resolved by 15 the AOC in how they presented the budget. Now 16 there is a commission that has its own budget that 17 has to coordinate with the AOC, but that is 18 responsible for arguing its priorities to the 19 legislation. 20 MR. KURTZ: It has its own seat at the table 21 alongside the AOC? 22 MR. RUBIN: Correct. 23 MR. KELLER: And so the AOC, basically, 24 would compromise on the remainder of the judicial 25 department budget -- and my last question is, is KING COURT REPORTING SERVICE 47 1 there any other money, for instance for 2 prosecutors, outside of state funding? 3 If I were a District Attorney in North 4 Carolina, would I have -- and I was in a 5 particular county. 6 MR. KURTZ: Charlotte, yeah. 7 MS. CARMAN: They have grant money. 8 MR. CHESHIRE: They have substantial federal 9 monies. 10 MR. KELLER: Not local. 11 MR. KURTZ: We have a system here in Georgia 12 where Fulton County does pay local supplements. 13 MR. RUBIN: Over the last few years some of 14 the more populous, more affluent counties have 15 pushed -- well, they just did it. They just began 16 funding their local court programs, including 17 their prosecutors above what the state paid. 18 MR. CHESHIRE: Mecklenburg does that, don't 19 they? 20 MR. RUBIN: Mecklenburg does that and now 21 there is finally legislation authorization for 22 that practice, and so it can be a county. 23 MR. CLAY: If you've got a neighboring 24 county or something I would doubt that they would 25 have much in the way of any local -- KING COURT REPORTING SERVICE 48 1 MR. RUBIN: The state monies sets the floor, 2 and the counties are able to add to it. 3 MR. KELLER: Do you not have any idea of the 4 percentage of the budget for prosecutors, for 5 instance, that would be state funded versus county 6 funded? 7 MR. CHESHIRE: It would be the county 8 funded -- my belief is the county funding for the 9 prosecutors would be very small. That would be my 10 belief. 11 MR. RUBIN: If you look solely at the 12 prosecutor's office and not only the law 13 enforcement. 14 MR. KELLER: Right. Looking strictly at 15 that. 16 MR. DUBOSE: The overhead of the 17 prosecutor's office, is that covered by the state? 18 MS. CARMAN: I think a lot of it is county 19 space, as they do for the public defenders. 20 MR. RUBIN: It is county space, but beyond 21 that it's state-wide. 22 MR. CHESHIRE: You might not have heard 23 that, but the counties do provide office space for 24 the DAs in their office, but there is some 25 contributioin there by the county, but not KING COURT REPORTING SERVICE 49 1 necessarily direct money for salaries and that 2 kind of thing. 3 MR. KELLER: Just to give you an example, I 4 have 15 assistant district attorneys. Five of 5 them are state paid, 10 of them are exclusively 6 county-wide, and in your larger counties in 7 Georgia you've got a predominant number of 8 personnel that will be totally in that category. 9 And so add to the problem of indigent 10 defense, the problem of the prosecution when we 11 talk in terms of state funding and trying to 12 figure out a way to get the state to pick up more 13 of the responsibility of the overall judicial 14 system than we have now. 15 MR. RUBIN: One of the interesting things 16 that emerged in this process was the prosecutor's 17 position on the state. While the study felt that 18 prosecutors should not have a voice, prosecutors 19 have a funny way of speaking up anyway. 20 MR. KELLER: I've been accused of that. My 21 background -- 22 MR. KURTZ: The power of indictment, John. 23 That's why. 24 MR. RUBIN: But the prosecutors did not, and 25 I think that they saw what this Study Commission KING COURT REPORTING SERVICE 50 1 presented as a possibility, or a hope, or a 2 potential model for improving their lot. 3 I mean, they have their own complaints and 4 problems in North Carolina, but they saw what was 5 being proposed for indigent defense. An 6 autonomous entity that would be responsible for 7 these functions. That would be adequately funded 8 as a possible model for them. 9 MR. KELLER: I will say this, and it's very 10 hard to ever generalize anything, but I think I 11 can speak for all prosecutors of the state and say 12 that if you have been in this business for any 13 length of time, quality of representation is the 14 key to the success of the public, and you cannot 15 -- everybody does better when every aspect of the 16 judicial system has adequate representation. 17 And I will also concur, I don't think that I 18 need to be in as the prosecutor's part of the 19 commission, but I think that the prosecutors ought 20 to be at the table and trying to assist and 21 upgrade any representation. 22 MR. CHESHIRE: One of the things that -- I'm 23 glad you said that, and I alluded to this before. 24 If you can, within the -- within your -- what you 25 have to do here, if you can identify the KING COURT REPORTING SERVICE 51 1 prosecutors and identify the criminal defense 2 lawyers who really understand that the concept is 3 we all are seeking after the best justice we can 4 at the fairest rate to the taxpayer and get away 5 from the individual battles. 6 We did find in North Carolina that there was 7 much common ground between those lawyers that were 8 able to do that and in educating, using those 9 lawyers to educate their fellows really helped 10 bring that process together. 11 And you're right. I mean, I have 12 prosecutors tell me all the time that there is 13 nothing worse than trying a case against an 14 incompetent lawyer. There is much common ground. 15 And I think what John was saying was that 16 the DAs in North Carolina saw our ability to get 17 some independence as a way that they might get 18 more independence, too. They might have more 19 ability to lobby for more funding for themselves 20 and that type of thing. 21 MR. KURTZ: I want to let you get back to 22 where you want to be, and this might help you get 23 to back there. 24 I know you said that the Study Commission 25 decided not to do an empirical head count of the KING COURT REPORTING SERVICE 52 1 North Carolina system. I know you worked on the 2 basis of what the experience of, I guess, what the 3 Study Commission were as well as what they heard, 4 as well as what The Spangenberg Group brought in 5 from other states and other options. 6 What, specifically, did you see as the 7 problem? I mean, given this kind of context and 8 data base, or shape of the data base, what, 9 specifically, was wrong with the North Carolina 10 system? 11 MR. RUBIN: Well, I can tell you one of the 12 things that concerned the Study Commission. 13 MR. KURTZ: Okay. 14 MR. RUBIN: And the study -- it's just where 15 our state was. 16 MR. KURTZ: Right. 17 MR. RUBIN: The Study Commission didn't feel 18 it needed additional information and it didn't 19 feel that it needed the additional support that 20 would come from the state. 21 MR. KURTZ: I certainly wasn't criticizing 22 you for not doing the study. I want to know what 23 specifically was wrong with the system? 24 MR. RUBIN: Independence of counsel. 25 MR. KURTZ: Lack thereof. KING COURT REPORTING SERVICE 53 1 MR. RUBIN: Lack of independence of counsel, 2 lack of uniformity in compensation, lack of 3 uniformity in quality of representation. 4 MR. CHESHIRE: Lack of control, of any kind 5 of control over the quality of representation. 6 MR. RUBIN: Inability to manage how to 7 expend limited resources. 8 We heard from some states that seemed to 9 have less money but we're doing a better job 10 focusing on where to spend that money because they 11 had the entity. They had the authority. 12 MS. CARMAN: Somebody to look at the big 13 picture. 14 MR. KURTZ: What I see underlying all of 15 that, and I guess you said it, also, is lack of 16 central control over costs. 17 MR. CHESHIRE: And management. 18 MR. KURTZ: Management problems. 19 MR. CHESHIRE: Yeah. 20 MR. KURTZ: That it was being menaged at 39 21 or 100 low side, and that led to -- 22 MR. RUBIN: And I think it's unreasonable to 23 expect local judges to manage. Local judges have 24 another job to do, and they don't have complete 25 access to the date. They were given a target each KING COURT REPORTING SERVICE 54 1 month of how much money they could spend. 2 MR. KURTZ: And if they went over it they 3 said here is a little more, okay. 4 MR. RUBIN: But they never got any data to 5 become local managers of their indigent defense 6 programs. 7 MR. KURTZ: And I heard Joe say that the 8 judges didn't think that they wanted to give this 9 up, but now are delighted, or most of them, or 10 many of them are delighted to have given it up. 11 MR. CHESHIRE: Some are. We got sued 12 immediately when we got started and a judge 13 enjoined us from operating, but I think that the 14 majority of judges are active, and I think as we 15 go we're having to make some difficult decisions 16 and be very unpopular people. 17 As we go I think they're beginning to see 18 that it will work. I mean, we've got problems, 19 but -- 20 MR. KURTZ: In terms of quality control, you 21 didn't hear judges say, well, I can tell when I 22 have a bad lawyer in front of me. If I've got a 23 bad lawyer in front of me I'm going to avoid the 24 trial, appoint a new lawyer and never appoint that 25 guy again. KING COURT REPORTING SERVICE 55 1 MR. RUBIN: There was some of that, but I 2 think most judges recognized that there was only 3 so far they could go in terms of getting involved 4 in the defense of the case. There is that 5 constitutional limit, but for a judge to actually 6 intervene and over -- and ensure quality the way 7 it needed to be done, I mean, that's really asking 8 too much of a judge. 9 Acting completely in good faith that's 10 really not a role that the commission took, and 11 that the judges didn't feel. 12 MR. CHESHIRE: With all due respect to our 13 judges, the ones that said that were generally the 14 ones that were doing exactly the opposite. 15 MR. CLAY: May I ask you something? And you 16 may be going to address this, and if you are just 17 do it at the appropriate time. 18 Specifically, what powers does this 19 commission have to impose uniformity to punish or 20 to withhold a budget? What's the stick? And I've 21 tried to skim this legislation and they may be all 22 in here, but if that's going to be addressed 23 that's really what I want to know is what powers 24 do you all have if you've got a circuit defender 25 and you don't think that's working, or if the KING COURT REPORTING SERVICE 56 1 circuit defender's office is working very well 2 versus a contract attorney that's not working well 3 in one place and may be working well in another 4 place versus public defender offices exist, I 5 guess, in 11 circuits now. What are you doing in 6 terms of your management or powers? 7 MS. CARMAN: Let me talk a little bit about 8 the structure of the commission and then our 9 office, and I'm going to give it back to John to 10 finish what he wanted to talk about. 11 Basically, what the legislation established 12 is a 13-member commission which is, essentially, a 13 governing body of the office. It's varies in 14 functioning authorities. The Governor has an 15 appointment, and the house has an appointment, and 16 the various bar associations and the trial -- the 17 women's bar association, the black lawyers 18 association. And so there is a lot of diversity 19 around the state. And then we have two lawyers, 20 and they are in staggered terms. 21 And so the office is composed of an 22 executive director, who is Malcolm Hunter, and 23 there is a chief financial officer, and an 24 administrative assistant. And so we're a pretty 25 small office. KING COURT REPORTING SERVICE 57 1 And the commission, you know, as our 2 governing body is not, I mean, as involved in the 3 kind of day-to-day details of the operation. And 4 so, obviously, we can't just take everything over. 5 We don't have the personnel to do it, and we would 6 make a big mess of it if we tried to just because 7 there is a lack of personnel. 8 And so, basically, the first thing that the 9 commission did at the table was to sit down and 10 say what do we want to take on first? And 11 essentially they decided they wanted to take on 12 capital cases first to find the capital cases, 13 really the potential capital cases. 14 And so they passed rules that were effective 15 as of July 1 that basically said in non-capital 16 trial cases carry on. Keep on doing what you're 17 doing until we have a chance as an office to go to 18 each district, look at what you're doing, see 19 what's working, see what's not working, and 20 implement changes in a way that's not completely 21 overhauling and disrupting the system, but in this 22 slice of capital cases we want to take over 23 effective July 1. 24 And so they said here, Office of Indigent 25 Defense Services, this is for you to do starting KING COURT REPORTING SERVICE 58 1 July 1. And, essentially, in those cases we 2 appoint the attorneys, we compensate the 3 attorneys, we field all requests for experts, we 4 fund those experts. 5 There is also provisions in the rules, and 6 these are the rules that they passed and they hand 7 out to you. Provisions are qualification 8 standards. If attorneys don't meet those 9 qualification standards they don't get 10 appointments. 11 If they are on our roster of attorneys and 12 they failed to continue to demonstrate the 13 qualifications they're off our roster, and they 14 don't get any further appointments. 15 And so there really is quite a stick and how 16 we choose to use that stick and how vigorously we 17 implement the stick, you know, is another issue 18 that is going to come about on a day-to-day basis, 19 but the stick is out there. 20 MR. CLAY: Is the same true for, say, an 21 area where there is contract lawyers and there 22 seem to be a plethora of complaints or problems? 23 Do you ultimately have the authority to go in and 24 say that system is going to be replaced by this 25 system? KING COURT REPORTING SERVICE 59 1 MS. CARMAN: Ultimately we do. We have not 2 exercised that authority yet because that's at the 3 -- to give us a chance to get this under control 4 level, but we do have authority. 5 And now to abolish and establish a public 6 defender office it requires state authorization, 7 and so we can't just go in and say you're gone and 8 we're here. We do need to go back to the 9 legislature at the commission's recommendation on 10 that. 11 MR. CHESHIRE: But we control their money; 12 isn't that right? 13 MR. RUBIN: That's right. 14 MR. CHESHIRE: And so we have a tremendous 15 stick over them anyway. 16 MR. CLAY: Right now are all indigent 17 defense dollars, whether it's a circuit defender 18 or a contract lawyer, flows through y'all's 19 office? 20 MS. CARMAN: Right. 21 MR. CHESHIRE: Other than the establishment 22 of the public defender's office, or the removal of 23 the public defender's office, we're not doing it 24 right now, but we basically have the power to do 25 it all. KING COURT REPORTING SERVICE 60 1 MR. LESTER: Who hires and fires the public 2 defender. 3 MR. RUBIN: The public defender continues to 4 be appointed by the local judge. That was not in 5 the original legislative's proposal, but that is 6 what works in this process. 7 MR. KURTZ: And so, in other words, 8 obviously your system is different in that you've 9 always had state power in terms of state funding, 10 but as far as delivery of services you have the 11 same thing we have, i.e., you've got public 12 defenders, you've got contract attorneys, you've 13 got appointed attorneys. 14 MS. CARMAN: We've got a complete 15 hodgepodge. 16 MR. CHESHIRE: Do we have some counties? 17 MR. RUBIN: We have some counties. 18 MR. KURTZ: And so the innovation or the 19 success, at least thus far, is just to put a 20 management system on top of all of that, at least 21 a delivery system the same way they were, but 22 makes one group your office under that commission 23 in charge of it all? 24 MR. RUBIN: That was a big change. 25 MR. KURTZ: Well, I can see. KING COURT REPORTING SERVICE 61 1 MR. RUBIN: Now, changes beyond that, I 2 think the philosophy of the commission is to 3 proceed gradually, to work with local areas to 4 find out what will work best and not just try to 5 impose some coattail approach. 6 MR. KURTZ: How often has the commission 7 met. 8 MR. CHESHIRE: We meet every month, but we 9 have about -- we have -- we are divided up into 10 committees, and we have at least, it seems to me, 11 two or three 8:00 o'clock in the morning telephone 12 conference committee meetings a week. And so 13 we're meeting all the times, and we're e-mailing, 14 and phone, and face to face. 15 MR. KURTZ: And I assume that the staff took 16 the labor and came up with proposals and presented 17 them to the commission and -- 18 MR. CHESHIRE: As you can see, we have a 19 small but fabulous staff. 20 MR. LESTER: In places where there are 21 public defenders, do you also handle capital? Do 22 you appoint the public defender? 23 MS. CARMAN: Some of the public defenders 24 do. Some of our public defender offices can't 25 handle capital cases so we're going out to private KING COURT REPORTING SERVICE 62 1 bar. Obviously, where we have the public defender 2 who is qualified we want to assign them to the 3 public defender's office. 4 MR. RUBIN: But a central office controls 5 the public defender and a non-public defender. 6 MR. KURTZ: In the four months since you've 7 taken over, I mean, to get a since of the capital 8 load, I mean, is that 20 cases that you've got 9 now? 50? 100? 10 MS. CARMAN: About -- well, I think we've 11 made about 400 appointments. 12 MR. KURTZ: 400? 13 MS. CARMAN: Now, remember, we're defining 14 capital very broadly, so these are not all capital 15 cases. These are cases that could possibly go 16 capital, and many of them don't. 17 Now, one thing that I think we've done very 18 well for sheer sanity sake as a small staff is 19 build on existing structures. And so, in fact, 20 we're a five-member office, but we have help from 21 offices that were already in existence before we 22 came into existence. 23 And so, for instance, we had a pilot project 24 that was a capital defender's office that was just 25 three attorneys doing trial level representation KING COURT REPORTING SERVICE 63 1 in capital cases, and one of them was designated 2 as the interim capital defender. And so he is 3 actually handling the direct appointment at the 4 trial level. 5 We had a state-wide office of the appellate 6 defender. The appellate defender is handling the 7 appointment of all of the appeals. And then our 8 office is taking over the appointments in the 9 post-conviction cases as well as all compensation. 10 MR. KURTZ: I heard what you said before 11 about qualifications, and if you don't meet the 12 qualifications you don't get appointed. If you 13 haven't done a good job in the past you're not 14 going to get appointed, et cetera. 15 How does that blend in with the obvious 16 necessity for speed in terms of, you know, the guy 17 has been arrested, or the gal has been arrested. 18 We don't all stop everything and go to Raleigh and 19 have an interview, do we? 20 MS. CARMAN: No. What we have done from the 21 beginning is we have said here are standards 22 effective July 1. If you want capital cases you 23 have to meet those standards, or request a waiver 24 of those standards. 25 Or if you haven't met certain requirements KING COURT REPORTING SERVICE 64 1 we know you're a good lawyer and you're going to 2 go out there and do a great job, you can request 3 that. They send in applications which have been 4 fairly lengthy applications. 5 MR. KURTZ: Applications to be put on your 6 capital list? 7 MS. CARMAN: To put on the roster. And so 8 once you're approved for the roster then we have a 9 list of attorneys whom we have approved in the 10 various counties, and then when the case comes up 11 they get appointed to that roster. 12 MR. KURTZ: I got arrested last night in 13 Charlotte -- 14 MS. CARMAN: We have a system set up for 15 what we call a provisional counsel. Basically, we 16 have attorneys in every county on call. 17 If a defendant gets arrested over the 18 weekend, we are getting notified in various ways. 19 We're getting notification from the AOC over 20 computer everyday in terms of all of the murder 21 warrants that come down. That's been somewhat 22 good. They're missing some. 23 We've got our capital defender reading 24 newspapers from all over the state and 25 supplementing it in various fashions like that. KING COURT REPORTING SERVICE 65 1 And then at first appearance we set up a system 2 whereby when a defendant comes in and the Court 3 finds that he is indigent that the Court or the 4 clerk has to immediately notify our office by 5 e-mails, or fax, or telephone. 6 MR. KURTZ: Have you imposed state-wide 7 indigency standards? 8 MS. CARMAN: Not yet. 9 MR. KURTZ: So I might be indigent in 10 Charlotte, but not indigent in Greensboro? 11 MS. CARMAN: Right. 12 MR. CHESHIRE: One of the things that John 13 likes to point out and I think it's important, and 14 I'll let him speak to it, but I'll give some 15 input, is when we created the commission we 16 specifically tried to not address all of these 17 issues because we felt like if we addressed all of 18 the issues in indigent representation that we 19 would get completely bogged down and we would 20 never get it through. And so we tried to make the 21 commission be charged with trying to carry it 22 through. 23 Eventually we will have peer review and 24 qualifications for all felonies, and even down 25 into DWIs and those kinds of things. KING COURT REPORTING SERVICE 66 1 MR. KURTZ: The law professor would say that 2 you have chosen procedurally rather than a 3 substantive. 4 MR. CHESHIRE: That's what he would say, 5 yeah. 6 MR. RUBIN: And this provisional counsel 7 idea is a wonderful innovation that nobody thought 8 of early on, but only when there was staff time 9 set aside and people were focusing on it and they 10 figured out if they can get provisional counsel in 11 there, they can do a case a report back to the 12 central office and there would be a matching of 13 indigent attorney resources to that case. 14 MS. CARMAN: And they're a wonderful 15 resource. I mean, basically, most of them are 16 proud that they have been asked to be this kind of 17 on the front standing person and so they're 18 willing to go in on Saturdays. And they hear 19 about a case on the news and they'll call us. 20 And so they've really been an amazing 21 resource for us. 22 MR. KURTZ: And they kind of pass it off to 23 the -- 24 MS. CARMAN: Sometimes they end up getting 25 appointed, but most of the times, I think, no, KING COURT REPORTING SERVICE 67 1 they don't. 2 REPRESENTATIVE HOLMES: Have you done 3 anything about excessive caseload? 4 MS. CARMAN: That's the only thing that we 5 haven't addressed yet. 6 MR. RUBIN: Part of the problem with the 7 lack of the system that we had was the 8 inconsistency and incompleteness of the data. 9 That is one of the things on the long list to do. 10 The commission is beginning to work with 11 public defenders where they have better controlled 12 data. You have to start collecting things more 13 consistently and begin to set caseloads for those 14 offices. 15 MS. DEVINE: I have a question. I'm Flora 16 Devine. I represent the Georgia Indigent Defense 17 Council, and I apologize for being late, and 18 perhaps if you have already addressed this perhaps 19 my colleagues will fill me in, but I think you 20 mentioned one of the issues that drove this was 21 you needed a system because someone needed to be 22 looking at the big picture, I think those were 23 your words. 24 Along with looking at the big picture, I'm 25 wondering if you all cited any issues related to KING COURT REPORTING SERVICE 68 1 growing problems within the Latino community, 2 Hispanic community? 3 I noticed that there was not anyone from the 4 State Bar on the commission, specifically a native 5 American, but not Hispanic, and I wonder if you 6 have any issues with the commission now, or any 7 method of looking toward the future in terms of 8 how you deal with these growing problems within 9 that community. Specifically within that 10 community. 11 But along that same line, what does the 12 commission -- what do you anticipate about the 13 vision? I see management as including having 14 someone or someones to really sort of address the 15 future and where we're going to go from here, and 16 is that a part of that commission's 17 responsibility? 18 MS. CARMAN: Well, I think in terms of the 19 vision, I mean, I think John said it well earlier, 20 is that, basically, the North Carolina vision was 21 that defense attorneys should be controlling the 22 defense system within our economic structure. 23 And so we understand that there is a reality 24 there and that we can't go hog-wild, but that the 25 defenders would be the ones controlling the KING COURT REPORTING SERVICE 69 1 system. 2 Now, in terms of the Latino population, I 3 don't think that there is anything that we've done 4 that directly addressed any subsets like that, but 5 that would certainly be something that we would 6 like to look at in the future. 7 Now, one thing that I will say is there are 8 a few pages in our statute for interpreters. And 9 so we're not actually in charge of the 10 interpreter, and so there is a little bit of an 11 issue about where that comes from, but I'm still 12 trying to understand. 13 MS. DEVINE: What about other matters 14 like -- what about other matters like the mental 15 health courts and drug courts? 16 MS. CARMAN: Special counsel are looking at 17 that. 18 MR. RUBIN: All of the indigent 19 representation is on the commission: Criminal 20 juvenile, mental health, constitutional, 21 statutory. 22 The Study Commission was concerned about 23 more for any of those programs than under this 24 umbrella, and actually the one program that the 25 Study Commission did not assume control over and KING COURT REPORTING SERVICE 70 1 left with the AOC just about got axed, you know, 2 during this across-the-board budget attack, that 3 was the GAL program representing juveniles who had 4 been allegedly abused. 5 There was some concern about conflict there, 6 but that's actually a surmountable problem. And 7 so they were politically very vulnerable, and so 8 all of the mental health courts, the juvenile 9 courts, indigent representation. 10 MR. CHESHIRE: To speak for just a minute 11 about the vision, I think our long-term vision is 12 that we as the commission will have very tight 13 control over quality. There will be certain 14 forms, certain requirements, for example, about 15 when lawyers have to go and see their clients 16 initially. 17 They can't wait two weeks. They've got to 18 go and see them within 24 hours. Those kinds of 19 people will have to certify under penalty of 20 perjure that they did in the fee application. 21 That we will not only will create these 22 qualities, but we will create specific CLE 23 requirements that you have have to have defined 24 for indigent representation; that we will have 25 control over the fees; that the lawyers will be KING COURT REPORTING SERVICE 71 1 able to appeal fees, but we will also have the 2 ability to punish the lawyers that are not being 3 truthful on their fees, which are a lot, I might 4 say. 5 We will coordinate indigent defense with a 6 cost-saving method so that there could be brief 7 banks, motion banks, things like that that will 8 allow cost-saving measures and increase quality; 9 that we will interface with the judiciary and the 10 District Attorney's office to continue to try to 11 uplift the representation of the whole criminal 12 justice section and bring people together. 13 You know, there is a great future vision, 14 but it's going to take a while. 15 JUDGE BIRCH: What mechanisms do you have in 16 place in the federal system where you review fee 17 requests? Do you all have that process, and where 18 is that done? 19 MS. CARMAN: It's done in our office. 20 MR. RUBIN: In capital cases and in appeals. 21 JUDGE BIRCH: Who does it for the other 22 folks? 23 MS. CARMAN: The judges still do it. 24 MR. RUBIN: Right now 138,000. 25 MR. CHESHIRE: We will do it. Eventually, KING COURT REPORTING SERVICE 72 1 we probably will do it. 2 MS. CARMAN: I must say there is a lot of 3 tension between us assuming that kind of direct 4 appeal and growing into a giant bureaucracy, which 5 we don't want to grow into. 6 MR. RUBIN: One part of the division is to 7 assess what sort of delivery system is appropriate 8 in this. There may be public defender offices in 9 larger populations and larger caseloads to be set 10 up. There may be an expanded use of contracts, 11 and I don't think this commission is as afraid of 12 them as some jurisdictions are because they're 13 controlling for contract. 14 Quality, it requires sufficient funding, 15 standards for attorneys, and so that may be a way 16 of improving that rather than in some 17 jurisdictions contracts are -- the funding is 18 limited, but the cases are unlimited and quality 19 is a result of the staff, but the authority that 20 the commission has, I think they're intrigued by 21 contracts. 22 JUDGE BIRCH: No one size fits all. 23 MR. RUBIN: That's right. 24 JUDGE BIRCH: What about are there any 25 written or unwritten rules or constraints on KING COURT REPORTING SERVICE 73 1 defense lawyers and the kinds of things that they 2 can do? Like challenging a jury pool, something 3 that would have a systemic effect, which is very 4 unpopular? Are there any constraints like that in 5 place, either written or unwritten? 6 MR. CHESHIRE: As we sit now, there are not, 7 but I will tell you as a member of our 8 compensation committee sitting in some of the 9 reviews of the appeals we're starting to cut down 10 tremendously applications for appeals for issues 11 that should never have been raised. 12 JUDGE BIRCH: But that's a way to -- 13 MR. CHESHIRE: Right, and that word will get 14 out. I mean, we just -- didn't we, Danielle, have 15 somebody submit 144 hours to us for an appeal and 16 I think we cut it down to 15 hours or something 17 like that? Because the issues and the quality 18 were so poor. 19 And so we do anticipate, and this is where 20 we have a problem with the private bar, I mean, 21 we -- you know, and it is -- we're not the most 22 popular of all people right now. 23 JUDGE BIRCH: There is an independence issue 24 there, too, I suppose. 25 MR. CHESHIRE: We do have director and KING COURT REPORTING SERVICE 74 1 roster decisions in terms of who gets on the 2 capital list is essentially decided in my office 3 as well, but there is a procedure in the room as 4 far as a fee, and so if one is dissatisfied with 5 his or her fee they can appeal it. 6 JUDGE BIRCH: In the federal system where we 7 spend -- I was the approving judge for about three 8 years in the Federal Court of Appeals, judge in 9 the entire circuit: Florida, Alabama, and 10 Georgia. I saw all of them. 11 They initially go to the district judge, 12 though, and the district judge then makes an 13 initial recommendation ei