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 either approval or he cuts 14 someone. 15 It then comes up in our -- we have one staff 16 person that looks at them, and he looks at them 17 and makes notations for the approving judge or the 18 circuit judge, and then we get them and look at 19 them and have to make either an approval or 20 disapproval or send them back for study by the 21 district judge. 22 And we're talking millions and millions of 23 dollars involving federal criminal defense because 24 we didn't have budget problems, or that much of a 25 budget problem like the states do. KING COURT REPORTING SERVICE 75 1 But it worked pretty well and pretty 2 efficiently, remarkably. I mean, but -- 3 MR. RUBIN: You know, the question of 4 independent counsel and their decision making, I 5 think this commission is committed to maintaining 6 the independence of counsel, both from judges and 7 from a bureaucratic oversight, and that's 8 beginning to be played out in the capital process. 9 The capital lawyers are being asked to 10 consult with experts about cases, but the ultimate 11 decision about how to try the case rests with that 12 lawyer and the true goal function is making sure 13 that there are good lawyers on the list, they are 14 well-trained and they're working hard, but I don't 15 want to suggest that the commission is 16 micromanaging the trial of these cases. I don't 17 think that this commission is. 18 JUDGE BIRCH: Well, what was the decision 19 about not having a judge in a capital case 20 initially look at the fee application? 21 MS. CARMAN: Essentially it's an 22 independence counsel issue. Our commission feels 23 very strongly that judges should not be involved 24 in appointing or compensating defense attorneys. 25 MR. IDE: I asked you about costs. In other KING COURT REPORTING SERVICE 76 1 words, one of the things was quality of costs and 2 the sole desire, as I understand, better lawyers 3 will make it work better. How are you going to 4 produce the data over the next six months, 12 5 months, to go back and say look, this was right; 6 look at our data? 7 MS. CARMAN: I mean, we're going to show 8 what we've been paying. Now, one of our problems 9 is that we don't have much to compare it to 10 because the day that that was collected before we 11 came into existence was just pathetically bad. 12 MR. IDE: But you have good systems now, or 13 is that expensive to set it up? 14 MS. CARMAN: We're developing them. 15 MR. IDE: How does that tie into the 16 state-wide system of keeping track of what's going 17 on. 18 MR. RUBIN: Do you really want to know? 19 MR. IDE: Well, I expect that there was a 20 problem. 21 MR. RUBIN: There are problems with an 22 existing state-wide system. 23 MS. CARMAN: We have a state-wide system 24 that doesn't talk to their other system. They can 25 collect data, but they can't report it. KING COURT REPORTING SERVICE 77 1 MR. IDE: So you are like Georgia. 2 MR. RUBIN: But what's happening now is 3 there is an office, as small as it is, devoted to 4 figuring out how to come up with that system, and 5 that is not a real priority. 6 Legislators would scream, but I don't think 7 that there is a real priority within court 8 administration to spend the money to approve that. 9 MS. CARMAN: And we have a research analyst 10 on staff. That's her function. 11 MR. IDE: Your data longevity, I think that 12 you need to have a system to say look, this is the 13 best way to spend money and we would appreciate it 14 in other states. 15 MR. KURTZ: Yeah. Would you hurry up? 16 MR. RUBIN: I think the capital data will 17 be -- the office is entering itself. 18 MS. CARMAN: We will have good capital data. 19 MR. RUBIN: And so there should be some 20 evidence right away. 21 MR. CHESHIRE: I think that in a few years 22 if we do it right even in a very simplistic way we 23 can go in and see how much money was spend in 1998 24 on indigent defense and how much is being spent in 25 2003, and we believe, even comparing the increase KING COURT REPORTING SERVICE 78 1 in population, that if we do our job the figure 2 will be less in 2003 than it was in '98, and the 3 quality of election goes up. That's our belief. 4 MR. IDE: You show the quality of standards 5 and there are a lot of things that you can do 6 there, but the system will be very important. 7 JUDGE ADAMS: I'm Harris Adams from the 8 State Court of Cobb County. I might have missed 9 it because I was trying to read this Senate Bill 10 1323, but how does the annual budget of the 11 indigent defense system in North Carolina compare 12 with the state budgets of, say, all of the 13 District Attorneys and their Attorney General in 14 North Carolina? 15 Since y'all are from the same city, do y'all 16 know what the state budget is for the attorneys 17 office for the appeals or the state appeals for 18 the District Attorney? 19 MR. RUBIN: I don't know. 20 MR. CHESHIRE: I do know that we spend more 21 money for private indigent defense than we do on 22 the District Attorneys state-wide. Of course, 23 that doesn't take into account many things, such 24 as they have access to the police departments and 25 all of those, and so in some ways it's apples and KING COURT REPORTING SERVICE 79 1 oranges. 2 MR. KURTZ: You see, he's working out. 3 MR. CHESHIRE: And the things that we talked 4 about earlier the county gives them, you know, 5 office space and stuff like that, but the actual 6 dollars, if you said X dollars go to the DA, Y 7 goes to indigent defense, there is more Y. Y is a 8 larger number. 9 JUDGE ADAMS: Was that the case prior to the 10 commission being created? 11 MR. CHESHIRE: Yes. Yes. 12 MR. RUBIN: Oh, yes. 13 MR. DUBOSE: You said that your Study 14 Commission recommendation was to your independent 15 commission had an authority to remove public 16 defenders. 17 MR. RUBIN: Yes. 18 MR. DUBOSE: What about the authority to 19 appoint private counsel, or to use contract 20 defenders? 21 MR. RUBIN: That remained as originally 22 proposed; that the commission would have authority 23 over it. As far as the establishment of PD 24 officers, I think that the legislature, itself, 25 wanted -- made that change. They wanted control KING COURT REPORTING SERVICE 80 1 over that decision. 2 As far as the selection or removal of PD, as 3 it's what the PDs wanted, the existing PDs. 4 MR. DUBOSE: One of the judges? 5 MR. CHESHIRE: The ones that had been 6 appointed by their judges wanted to continue to 7 have their judges give the appointment. I think 8 that will change. Now, I mean, my personal 9 opinion is now that we're in existence down the 10 road that will change. 11 MR. RUBIN: One of the PDs miscalculated. 12 He is no longer a PD. 13 MR. CLAY: John, let me ask you this maybe 14 as a segue. While there is a little bit of an 15 issue, a major difference in terms of where local 16 governments are funding most, and the state had 17 been funding dollars in the past, but walk through 18 a little bit of the political process since you 19 alluded to it here on a couple of questions. 20 What were the obstacles? What did you feel 21 was the strategy of getting a bipartisan consensus 22 or at least a major legislative victory in getting 23 the first step accomplished? 24 MR. RUBIN: Well, I think part of that is 25 attributable to the original formation of the KING COURT REPORTING SERVICE 81 1 Study Commission, and who was on it. They were 2 two key legislators. 3 MR. CLAY: It's too late for us. 4 MR. KURTZ: You're key, Chuck. 5 MR. CLAY: Oh, that's right. I forgot. 6 MR. RUBIN: There were two key legislators 7 who were a part of it and did not know much about 8 it as they did at the end, and at the end they 9 were convinced of the appropriateness of the 10 recommendation, and they became -- they may not 11 have been the most powerful people in the state 12 legislature, but they were very influential. 13 I think that that was significant. I think 14 that the nature of the proposal helped. It was -- 15 it made major changes, but it was not so specific 16 that if you can get bogged down with people saying 17 well, no, that's not going to work, or that 18 affects my area. 19 There was the structure. There were pieces 20 put in place to ensure that those who would be 21 making those decisions would be committed to 22 quality, and that this entity would be 23 independent, but beyond that this Study Commission 24 did not try to make decisions about how everything 25 is going to work, and I think politically that KING COURT REPORTING SERVICE 82 1 ended up in that commission. 2 MR. CHESHIRE: I think that the difference, 3 as you pointed out, was huge, but I think the 4 legislature finally saw it. They didn't see it in 5 '90, '91, but they finally saw that a $70 million 6 system with no management was simply going to 7 grow, and so they might as well take the leap to 8 trust that a management structure would solve that 9 growth problem because to them it's money. 10 To us it was quality and quality would 11 control the money. To them it's the money, and so 12 by putting the management thing -- and that was an 13 easy sell to them. 14 I mean, in North Carolina whenever somebody 15 is wanting to pass another criminal bill we've 16 always attached a fiscal report to the bill that 17 showed the legislature how much it's going to cost 18 to pass this extra bill, and I think that that was 19 really the selling point and it was a simple 20 selling point. 21 And I think John is right. We didn't try to 22 bog it down with all of these details so that 23 every little group could come in and pitch a fit 24 about it. We just made that simple presentation. 25 MR. CLAY: That's a good point. KING COURT REPORTING SERVICE 83 1 JUDGE BIRCH: Let me ask you this. And 2 because of your situation, you have a situation 3 where the state funding was skyrocketing and you 4 had this solution about management it seemed 5 intuitive. 6 The problem we've got is disbursal right 7 now. I mean, whether we can ever get it 8 centralized or not, who knows? The Governor that 9 we have now is a lawyer and he's opposed to it, 10 and so we've got that sort of thing that we're 11 looking at. 12 I want your thoughts about how we could 13 demonstrate, give some cover to the state 14 legislature. The only way that I can think of was 15 to have an accounting firm go around and pick up 16 cases that the state or federal courts have said. 17 They had ineffective assistance of counsel. 18 Go back and look at what the cost was to have an 19 ineffective assistance of counsel and compare that 20 with if you had decent counsel that you 21 compensated at a decent rate to begin with, and 22 compare those two things and see how much money 23 you've saved. 24 Now, is there another way that you all can 25 think of that we could give -- and that way you KING COURT REPORTING SERVICE 84 1 could go to the legislature and say look, you 2 know, it's not popular to appropriate money for 3 criminals, but it is popular to save people tax 4 dollars and do it efficiently, and they can 5 benefit so much better and get good 6 representation. 7 Is there another way that you all have 8 explored in how to give legislators political 9 cover in order to convince them? Because, after 10 all, ultimately it's a matter of funding. 11 MR. CHESHIRE: I would say the simple answer 12 to that question is no, and that you're exactly 13 right; that in order to get the legislature to do 14 anything about the system it all comes down to 15 whether they can sell to their constituents that 16 they're saving money. 17 And how y'all do that -- we were talking 18 about this, John and I at dinner last night. How 19 you do that with your lack of central control and 20 your lack of state funding or your lack of enough 21 money, enough state money to impact counties to do 22 things differently is really an enormous task. 23 JUDGE BIRCH: Yeah. We have that system 24 problem that we face. 25 MR. CHESHIRE: And we've thought about the KING COURT REPORTING SERVICE 85 1 same thing. Is there a way that you could go and 2 take four or five counties and study those 3 counties and try to figure out how there would be 4 a cost-saving mechanism in those counties by doing 5 a study of the counties. 6 We don't know, obviously, and you probably 7 don't either, but that may be the way that you 8 would have to go. Pick a few counties, do a study 9 of those counties, and hope that it did show 10 something that you could sell that would help. 11 I mean, one wish that the idea of equal 12 justice for all human beings would be something 13 that would carry the day, but it's kind of an 14 underpinning to carry the day. 15 REPRESENTATIVE HOLMES: The ultimate goal 16 would be to be the best in the nation. How are 17 you all doing meeting key fundamental things? 72 18 hours from seeing a lawyer. Do you all do that 19 instead of the Defendant languishing in jail? 20 MR. CHESHIRE: Absolutely. You can go into 21 the capital county where I'm from and see all of 22 those things today. And we've got a great 23 criminal bar in my county, and you can see them. 24 We have the problem still. It's a really 25 ugly, nasty term, but I guess I used it in the KING COURT REPORTING SERVICE 86 1 criminal defense bar meeting today, but I used it 2 here, that we have a lot of bottom feeders in the 3 indigent defense business and we let them be and 4 and they can't make a living doing anything else. 5 What we have done, I think, is in the short 6 period of time that we've been in existence we've 7 gotten control of those issues and capital 8 representation. We will then move from there to 9 the serious felony representation, and then down 10 to the lesser felony. 11 And so it's a process that's going to take a 12 while, but, you know, I've been doing this 13 indigent work for almost 30 years and I don't have 14 any doubt that we can do it. I really don't. 15 I mean, I don't have any doubt that we can 16 establish an enforceable standard, raise quality 17 and lower costs, and I think we will find that we 18 have the lawyers who will be there within 24 hours 19 that will, instead of spending 40 hours plus 20 trying to figure out what D & E means, will talk 21 to their clients and talk to the prosecutor and 22 establish a good rapport and work out a 23 resolution. I believe we will do it. 24 REPRESENTATIVE HOLMES: And so y'all have 25 plans to, as a commission, I understand that KING COURT REPORTING SERVICE 87 1 you're trying to raise a bar. Do you have a 2 system in place, or an idea, or technology, or 3 something? There has got to be some advantages in 4 centralization to help the attorneys out there. 5 If I'm an attorney out there and how can I 6 plug back in to y'all to take advantage? Maybe 7 through the Internet I can download a motion or a 8 plea or something. 9 MR. CHESHIRE: We have great plans for that. 10 We have plans and, of course, plans are just that, 11 but we have plans to have brief banks, motion 12 banks to put together a group of lawyers that you 13 can call if you have a complex issue and you can 14 call the commission and they will say well why 15 don't you call Joe Cheshire because we know he 16 tried one of those cases last year. 17 And, you know, not have an established bar 18 in which you've got a president elected, but 19 really the indigent bar would be one bar with -- 20 one that worked with the management of the 21 commission with the commission enabling those 22 people to be better lawyers and do it with less 23 time and save costs. 24 And so, you know, that really is the goal, 25 and the reason it's such a beautiful system is KING COURT REPORTING SERVICE 88 1 what I said when I started. You can't get a group 2 of criminal lawyers together to do anything, but 3 it appears that this system may actually 4 accomplish that. 5 MS. CARMAN: Because we do have a stick. 6 MR. CHESHIRE: Because we do have a stick. 7 MR. DUBOSE: Did some lawyers try to 8 enjoin-- 9 MR. CHESHIRE: Some private lawyers tried to 10 in Cumberland County, federal, and got their 11 lawyers to enjoin us and we got the venue moved 12 and got it chucked out pretty simply. You know, 13 there -- 14 MS. CARMAN: It's in the appeal process, 15 though. 16 MR. CHESHIRE: I mean, some of us who have 17 stood up, I don't mind telling you, are not the 18 most -- you know, I've been lucky enough to be 19 president of an organization related to criminal 20 law in North Carolina, but right now I'm not the 21 most popular guy among my colleagues. 22 You know, there is resistance, and it's a 23 shame, but there is resistance to quality, you 24 know? There really is. There is a sense of 25 entitlement. KING COURT REPORTING SERVICE 89 1 I don't know. You know, I graduated from 2 law school in the early seventies, and so I don't 3 know where that sense of entitlement came from, 4 but their is a sense of entitlement by some people 5 practicing indigent law that I'm entitled to make 6 a living practicing indigent law and practicing it 7 the way that I want to practice it, and nobody is 8 going to tell me how I'm going to do it. 9 And there is that sense and that sense has 10 to be taken down and this will be because there 11 are many good lawyers who will fill that void. 12 JUDGE BIRCH: We do have in the State of 13 Georgia currently, though, as a model the Georgia 14 Indigent Legal Services program. I used to be on 15 the board. John Cromity, many of you know John 16 that provided civil services for Georgia, and they 17 had a network, educational system that I think was 18 second to none. 19 A young lawyer coming in there would be 20 educated on how to handle and use paralegals and 21 all of that sort of thing. It's a good model that 22 exists and, of course, we've discussed them, I 23 think, some before, but perhaps we need to look at 24 them post partum, too. 25 Because it is a system that people in KING COURT REPORTING SERVICE 90 1 Georgia, lawyers, politicians, folks know about 2 and respect, and it does work, and it uses this 3 networking system of training and sharing the 4 practical everyday motions and forms and that sort 5 of thing. 6 MS. CARMAN: And we have some existing 7 bodies in our state that can help us with that. 8 We have an existing state-wide public defender 9 office that has every intention of being what we 10 think going for appellate work. 11 We have an existing capital defender's 12 office and hoping to establish a regional capital 13 defender's office, and so we have some 14 infrastructure, and so I don't know what kind of 15 infrastructure that you guys have that could be 16 built. 17 MR. CHESHIRE: We intend down the road to 18 hopefully use the mandated CLE for training for 19 indigent lawyers and bring them together on a 20 regional basis so that they know each other so 21 that they can help each other, too. And so, I 22 mean, we have some great hopes. 23 REPRESENTATIVE HOLMES: Can you address in 24 any way to investigate? I mean, I know the 25 standards and things, but maybe is there any way KING COURT REPORTING SERVICE 91 1 that you can draw from a qualified or develop the 2 evidence. 3 MS. CARMAN: Well, I think that there has 4 been some previous talk about developing, sometime 5 in the future, similar rosters for experts for 6 litigation specialists or investigators, 7 psychologists, that kind of thing. 8 MR. CHESHIRE: Yes. And we're beginning 9 that process. And I said I sent out a letter 10 talking about establishing a fee schedule in the 11 District Court. 12 MR. KURTZ: And so that would be the next -- 13 I mean, that's the steps beyond capital? 14 MR. CHESHIRE: No. District Court is our 15 misdemeanor court, but it is a court in which a 16 tremendous amount of money is being spent. 17 MR. KURTZ: So you're going to work from the 18 top, the bottom, and then in the middle? 19 MR. CHESHIRE: We have capital, which is a 20 huge part of our budget, and then district is 40 21 percent of our budget, and what we're finding is 22 judges are paying like $150 an hour in tiny little 23 minor cases, but we also have the problem that I 24 spoke of before where you may be -- a lawyer told 25 me yesterday that he's got four court-appointed KING COURT REPORTING SERVICE 92 1 District Court cases set this morning. One on 2 Monday, one on Tuesday, one on Wednesday, and one 3 on Friday. 4 He's going to be in court all four days 5 whereas if they were all set in one day he could 6 get it done in two hours. That's where we have to 7 work with the District Court. 8 MS. CARMAN: And the District Court fee 9 schedule we're not talking about the same way as 10 capital cases. We're talking about setting 11 uniform rates and saying to the judges this is 12 what you need to pay for this. 13 And so, basically, we continue to use the 14 judges because we don't have the personnel to 15 field 100,000 fee applications, but yet we would 16 have budget capabilities, and we would have 17 increased independence of counsel. 18 MR. KURTZ: We're going to send checks for 19 $50 an hour, and that's what you're going to 20 reimburse them. 21 MS. CARMAN: Yes, but that is the basic idea 22 would be uniform compensation. 23 MR. RUBIN: I think this discussion 24 demonstrates for those who are concerned about 25 putting the fox in charge of the chicken coup, the KING COURT REPORTING SERVICE 93 1 defense in charge of their own program, is that 2 this commission is going to have to make some 3 decisions in trying to use the resources they have 4 some authority, but there are some things that 5 they have to do for responsible budget decisions. 6 MR. KURTZ: Do you think that that is the 7 structure of the commission, the appointing 8 powers? I mean, the right to appointment of the 9 commissions? 10 MR. CHESHIRE: Yes. But, you know, I see 11 the one weakness, and that is if you do establish 12 a commission like ours you have to make sure that 13 the people on the commission really do care more 14 about quality than anything else. And the 15 weaknesses, as some of us who are on it, our terms 16 go off. If people who are more amenable to 17 political pressures -- 18 MR. KURTZ: The accountants. 19 MR. CHESHIRE: Yeah, come on, then you may 20 have a problem there because quality has to drive 21 it. 22 JUDGE ADAMS: You might have to exchange 23 your stick for a tazer. 24 MR. CHESHIRE: Well, we have to, or a nine, 25 as we say in the business. KING COURT REPORTING SERVICE 94 1 MR. RUBIN: One thing, the question about 2 the legislative process, I think that it helped 3 having a spelled out piece of legislation. 4 I mean, that you're going to be proposing 5 legislation, I would recommend writing it out so 6 that they have the model to work on. Even though 7 this is not detailed about exactly what will 8 happen, it is very detailed about what structure 9 the commission wanted, and I think that helps, 10 too, with the state process. 11 CHAIRMAN MORGAN: If we can have one or two 12 more questions, I think, and then we're going to 13 hear from The Spangenberg Group. 14 Anybody else? I think I saw a hand raised 15 in the back. 16 MR. RUNDLET: You mentioned that public 17 defenders are now appointed by judges in the 18 circuits, but that wasn't now. How is that done? 19 How was that proposed? 20 MR. RUBIN: It was initially proposed that 21 the commission would appoint the public defenders. 22 And the importance of that is that the public 23 defenders are really a managerial arm for the 24 commission in these areas of the state, and so 25 that is important to combine all of the people. KING COURT REPORTING SERVICE 95 1 MR. DUBOSE: Did you have legislative 2 pressure to change that? 3 MR. CHESHIRE: Yes, sir. 4 CHAIRMAN MORGAN: Does anyone else have a 5 question or comment? All right. Then thank you 6 very much. We very much appreciate you coming. 7 Thank you for your time. 8 And we will move right on to The Spangenberg 9 Group. 10 MS. BEEMAN: All right. Well, thank you. 11 I'm here to make a little report on the 12 commission's recent visit to Hall County, which 13 Judge Fuller basically organized and hosted, to 14 the extent that you can host something when you're 15 on the bench. 16 I think we had about eight people attending, 17 including three commission members as well as 18 Kendall Butterworth and Emily Ward as well, and I 19 think we should point out the commission members 20 that did make the trip. 21 Mr. Lester was there, Judge Adams, and 22 Phyllis Holman and the Judge were there. Did I 23 miss anybody? 24 Gainesville is the county seat of Hall 25 County. The judicial district is the northeastern KING COURT REPORTING SERVICE 96 1 judicial district, which is both, Hall and Dawson 2 Counties, but we were focusing just on the Hall 3 County portion that day. 4 And we attended Hall County criminal plea 5 and motion day with Judge Fuller presiding. And 6 the docket was Defendants who were entering guilty 7 pleas. And, interestingly, most of the Defendants 8 that day were going to retain counsel, and we 9 actually did not see a lot of court-appointed 10 counsel in action, and so be it. 11 Hall County had an expenditure in calendar 12 year 2000 of roughly $760,000 for indigent defense 13 cases. There were 1,350 or so cases. They have a 14 system that consists entirely of court-appointed 15 attorneys and every attorney in the county is 16 expected to take court-appointed cases until age 17 65, or unless they have some conflict, like they 18 they are married to the DA, or they are the DA, or 19 something along those lines. 20 Hall County has a full-time indigent defense 21 director, Carolyn Hooper. She overseas the 22 program, and she makes sure that Defendants who 23 come into the jail who are arrested are screened 24 within 24 hours for indigency. 25 They have a pretty strict verification KING COURT REPORTING SERVICE 97 1 process in Hall County for indigency as well, 2 which kind of surprised me. They don't have any 3 minimum qualification standards for attorneys to 4 be on the list. Again, everybody has to be on the 5 list, and they have separate lists for adult cases 6 and for juvenile cases. 7 We did some court observation and then we 8 broke for lunch, and during the lunch session 9 Judge Fuller invited other judges, including one 10 of the state court judges, to speak with us, and 11 the District Attorney was there with a couple of 12 assistant District Attorneys. 13 There was a representative from the pretrial 14 services department, which as I understand is a 15 little bit unusual in Georgia. There aren't a lot 16 of attorneys that have pre-trial service units. 17 The sheriff was there, and then we had a 18 number of private attorneys take court-appointed 19 cases that made a couple of remarks and comments. 20 I think that the overall consensus, from 21 what we were told by the people that work in the 22 system, is that they are pleased with it, and that 23 they are not interested in the imposition of a 24 one-size-fits all system, a state-wide public 25 defender system. KING COURT REPORTING SERVICE 98 1 However, they did acknowledge that Hall 2 County is a relatively wealthy county, and it's 3 able to pay for an indigent defense system more 4 easily than other counties, and I think they 5 follow the GIDC recommended guidelines for 6 compensation of counsel. They pay $60 an hour in 7 court and $50 an hour out of court following the 8 GIDC current case maximums. 9 They did note, though, that they would 10 support more state money for indigent defense; 11 that they would like to keep county control. 12 After lunch the group met with the indigent 13 defense director, Ms. Hooper, plus five inmates 14 whom she had brought over from the jail. These 15 were all individuals who had written letters and 16 grievances about their attorneys, and they allowed 17 the commission to ask them queries about what the 18 reasons were and how they were resolved. 19 And, actually, I think that we found that 20 most of the grievances, the process for Ms. Hooper 21 to contact the attorney and relay what the 22 information or the gripe is to the attorney, and 23 then she tried to resolve it as quickly as 24 possible. And I think generally they were 25 resolved very quickly, those issues. KING COURT REPORTING SERVICE 99 1 And so that's really the recap of what the 2 day was all about. And if you're interested in 3 more specific details we can tell you about it. 4 MR. KURTZ: How many lawyers in Hall County? 5 MS. BEEMAN: This is a hard question to 6 answer. There are 44 attorneys listed on the 7 official roster, but the numbers don't work out 8 because if you have 44 attorneys and they're 9 supposedly getting eight appointments, Carolyn 10 Hooper told us each the numbers just did not work 11 out to the caseload that they had. 44 times eight 12 is what? 13 MR. KURTZ: 360. 14 MS. BEEMAN: That was mine. 15 MR. LESTER: That was a month, wasn't it? 16 MS. BEEMAN: No. That was a year because 17 they serve three-month terms, apparently, and they 18 get eight cases each, supposedly, in each of those 19 months, in those three month stints. 20 JUDGE BIRCH: It may have changed in Hall 21 County. I know when I practiced up there, Judge 22 Fuller can probably explain, we used to appoint a 23 senior lawyer; somebody that had X number of years 24 in the practice and a junior lawyer that were 25 relatively new together to cover a term of court. KING COURT REPORTING SERVICE 100 1 And I remember getting -- and your number 2 would sort of come up about every three years, is 3 the way it worked back then because of the number. 4 Everybody in the bar was in the pool, and I 5 remember going in and, of course you do a lot of 6 plea negotiation, but then you try cases, you 7 might not actually during the term, but under 8 Georgia you have to do it in a fairly short time, 9 and that's the way it worked. 10 They may have changed it. Have they changed 11 it? 12 JUDGE FULLER: That's correct. They have 13 about 200, 200 lawyers that are actually in our 14 judicial circuit and our bar association, the 15 Gainesville Northeastern Bar Association, and 16 those are the folks that we ask to serve. 17 We do publish an order annually. That has a 18 limited number of the bar on that order and those 19 are the people that are required on that order to 20 serve indigent defense that year. 21 And we go off of that list quite frequently 22 to many other members of the bar who are not on 23 the list, but if push ever came to shove and we 24 did not have people to represent then we would 25 look to our list and those people could not KING COURT REPORTING SERVICE 101 1 decline the cases just because they didn't want 2 the cases. 3 If they were too busy or not qualified to 4 take it that would be a different story, but even 5 though we have a mandated list, Carolyn Hooper 6 goes off the list liberally and uses a large 7 number of the folks that practice even though 8 they're not on the list. 9 And what we attempted to do with the visit 10 also, and I hope that we were successful, is 11 mentioning the five folks that had complained. 12 Really nobody had talked to those people in 13 advance. 14 I told Carolyn to select people that had had 15 gripes and complaints and bring them over, quite 16 frankly, without notice to their attorney or 17 without notice to me or anybody else that was 18 participating. 19 And so I hope that the commission got to see 20 the ugly side of it to some degree, because we are 21 a far cry from perfect. We have large numbers of 22 complaints. We do try to address them very 23 quickly, but I hope the commission got a good look 24 at, to some degree, of the overall operation of 25 our system. KING COURT REPORTING SERVICE 102 1 MR. LESTER: One thing that Judge Fuller 2 raised, and that we did repeatedly, was that as 3 people were dealt with and either their case was 4 postponed because they didn't have a lawyer and 5 they were going to give them more time to have a 6 lawyer, was ask the individual whether having a 7 retained lawyer or appointed lawyer would meet 8 with members of the commission. 9 And so we, I guess, during the course of the 10 morning, probably met with four or five. In one 11 case Judge Adams and I met with an unrepresented 12 man who was sentenced and asked him why he chose 13 not to be represented, and, you know, talked about 14 it extensively. 15 And so it was a, you know, it was a pretty 16 informal process, and it sounds like somebody does 17 have both -- well, it seems to me that others 18 observed that the woman who ran the program was 19 very conscientious about what she was doing. 20 And that their pretrial program didn't leave 21 many people in jail even though they couldn't make 22 bond. Generally speaking, if they had any time in 23 the community, had a job, the kinds of things that 24 would show their attendance that they were 25 released. KING COURT REPORTING SERVICE 103 1 We also had a number of Hispanic accused, 2 both in the proceedings and the five that 3 complained, and there was a translator there that 4 met with us as well. 5 MR. KURTZ: There is a large Hispanic 6 community in Gainesville. Is that reflected -- I 7 mean, are there members of the bar or considerable 8 number of the attorneys Spanish speaking and/or 9 are translators readily available. 10 MS. BEEMAN: I think we saw that the Court 11 makes great reliance on interpreters that are -- I 12 don't know if the Court hires them or if they're 13 contracted through the Court, but I don't know how 14 many members of the bar speak Spanish, but they 15 had a very qualified interpreter who is available 16 all day to help people present. 17 It wasn't somebody that we pulled in off the 18 street to come in as an interpreter. That seemed 19 to be working pretty well. 20 JUDGE FULLER: The important part to note 21 about that is our director of indigent defense and 22 her one employee are completely county funded. 23 We have a director of interpretive services 24 who is responsible for providing certified 25 interpreters when available, but there are very, KING COURT REPORTING SERVICE 104 1 very, very, very few certified interpreters right 2 now throughout the state, but our director of 3 interpretive services at least screens those that 4 are not certified. 5 So that we have a pool of interpreters that 6 we can utilize the benefit of our increase in 7 population with Hispanics and Latinos is that we 8 have a large number of bilingual people who are 9 qualified to offer interpretive service. 10 And so we pretty much have a pool of 11 probably 10 folks that we can call on who are 12 independent contractors with us. 13 And then when we cannot use those folks we 14 use a business out of Atlanta that provides 15 interpretive service. Translation Station I think 16 is the name of the business, but I would point out 17 that our current director of interpretive 18 services, and we are now hiring a second full-time 19 bilingual person on staff, is completely county 20 funded. 21 MR. DUBOSE: Judge Fuller, if you get a 22 lawyer who says I do estate planning, I'm not 23 qualified to handle criminal defense work, how do 24 you handle those kinds of situations? 25 JUDGE FULLER: We allow that lawyer to ask KING COURT REPORTING SERVICE 105 1 to be relieved from service for, let's say that 2 one case, and that lawyer has to contact a number 3 -- contact a member of the bar that that lawyer 4 feels is qualified. 5 And that lawyer usually looks to someone who 6 does a good bit of criminal defense work and asks 7 that lawyer if that lawyer has time and is willing 8 to take it, and if so then the case is simply 9 appointed to that lawyer. 10 In the event that we have the lawyer who 11 isn't a state specialist, cannot find a 12 substitute, then that's brought to the Judge's 13 attention and then we determine ourselves, based 14 on our knowledge of that lawyer's background, as 15 to whether we feel that lawyer is, indeed, not 16 competent, or that lawyer is just trying to beat 17 our appointed system. 18 If not competent based on the consensus of 19 the four of us and knowing that lawyer for a 20 lifetime and what type of practice that lawyer has 21 been involved in, if not competent, then we simply 22 have Carolyn Hooper start over and appoint someone 23 else. 24 If we think that lawyer is competent and 25 though has been a state specialist for the past KING COURT REPORTING SERVICE 106 1 five years, that lawyer has always been involved 2 in criminal litigation in the past, then we might 3 call and say, "Are you sure you can't take this?" 4 But, otherwise, if somebody is deemed to be not 5 competent, we do not use them. 6 JUDGE ADAMS: The five that were 7 interviewed, the five complainants that were 8 interviewed, we were advised by Ms. Hooper that 9 she had to go back two years to get five 10 complaints, and they were just completely open to 11 be interviewed. 12 They were not represented by counsel. They 13 did not need counsel because their cases were all 14 completed, but we did take the opportunity to ask 15 some pointed questions to them. All of them, of 16 course -- well, all but one, I believe, was in the 17 service of a sentence. 18 But all of them, when examined, Ms. Holmen 19 would say I cross-examined, cross-examined them 20 perhaps, but all were very pleased with the 21 ultimate result, although they all had a 22 reasonable complaint about the failure of the 23 lawyer to keep them informed and to communicate 24 with them on their request. 25 And so that is a -- that is one of the KING COURT REPORTING SERVICE 107 1 biggest problems I'm sure with the state bar just 2 in their reactions as lawyers, not communicating 3 with their clients, whether it is an indigent 4 client or a paying client. 5 MR. KURTZ: Ms. Hooper is a full-time 6 employee? 7 JUDGE ADAMS: Yes. 8 MR. KURTZ: Is she an attorney. 9 MS. BEEMAN: No. 10 MR. LESTER: She started out doing the 11 pretrial, you know, the job that now someone else 12 has, but moved to the indigent defense. 13 MR. KURTZ: Appointed by the commissioner or 14 appointed by the judges? 15 JUDGE FULLER: She was hired by the judges. 16 JUDGE BIRCH: Judge Fuller, is that your 17 opinion, a key in getting the right person to do 18 that sort of thing, you get somebody who is really 19 capable and devoted to it; is that a fair 20 statement? 21 JUDGE FULLER: That's a very fair statement. 22 MS. BEEMAN: Apparently that system has been 23 in place for 12 years, and so it's been a while. 24 Ms. Hooper has been there for most of that time. 25 MR. DUBOSE: You mean the system of -- KING COURT REPORTING SERVICE 108 1 MS. BEEMAN: Of having a full-time person in 2 charge of the whole program. 3 MR. LESTER: I think she's the only one 4 that's of done it; is that right? Is she the only 5 one that's ever done it? 6 JUDGE FULLER: She is. 7 MR. LESTER: She is the first and only. 8 JUDGE FULLER: And she does take her job 9 very seriously. 10 REPRESENTATIVE HOLMES: The population has 11 probably doubled or tripled. 12 JUDGE FULLER: And I can tell you your 13 program is not perfect. I can take you through 14 the jail and the take you there, and folks not 15 knowing who they were, and you can hear the 16 stories about Mr. so-and-so and Mrs. so-and-so, 17 and we do try to address that. 18 Really, the success that we have had for a 19 large state, our success is dependent upon the 20 large number of lawyers that we have in our 21 circuit, and their willingness to abide by our 22 direction that you have to represent the force. 23 MS. DEVINE: I have a couple of questions, 24 Judge Fuller. Do you hear any complaints from the 25 lawyers about this duty of representation and, KING COURT REPORTING SERVICE 109 1 also, how does the tripartite committee function? 2 JUDGE FULLER: Yes, we have complaints by 3 members of the bar who are in their practice to 4 the degree that it's costing them substantial sums 5 of money to represent indigent defendants, and we 6 have very legitimate complaints from senior 7 members of the bar that have moved into an area of 8 practice specializing who, indeed, do not feel 9 comfortable representing people charged with 10 crimes for legitimate reasons because they -- I 11 don't want to call them not competent because they 12 are competent, and if given a case they would 13 spend the hour and hours and hours it would take 14 to become competent in that area. 15 But it is a recognition by us that those 16 people indeed do not need appointed cases because 17 they've been out of the criminal arena so long. 18 And so yes, we do hear complaints as to the 19 tripartite committee. 20 Our tripartite committee is made up of two 21 lawyers: Ms. Hooper, who is our director of 22 pretrial release, a member that represents the 23 commissioners of Hall County, their comptroller 24 and another member that represents the Court, and 25 it just happens to be my chief bailiff. KING COURT REPORTING SERVICE 110 1 I know nothing about what they do in reality 2 on a day-to-day basis. I know what they are 3 directed to do, but I never deal with any of those 4 issues. We have yet to have a challenge to our 5 tripartite committee -- our tripartite committee 6 to review bills that are submitted. 7 And although we have a cap system, that 8 there is supposed to be a cap on these bills, our 9 tripartite committee appreciates the judge. The 10 Judge's policy is pay it, and when you begin to 11 see a person on the fourth or fifth time it just 12 seems to be way outside the norm, then bring that 13 to our attention. 14 And there has been only one occasion that 15 that's happened since I've been on the bench in 16 '93. And, again, we're dependent on upon a 17 county, and I think it is correct to call us a 18 wealthy county. 19 More importantly, the indigent defense issue 20 has just never been questioned for whatever reason 21 by the commissioners, and I'm in a minority with 22 that. I think a large number of commissioners 23 across the state question the amount. There is 24 pressure, perhaps, on judges to control that 25 amount, but that is just something that has never KING COURT REPORTING SERVICE 111 1 been questioned and I don't know why. I never 2 bring it up. And it may in the future, but I 3 don't have an answer for you on that. 4 MR. KURTZ: Does the commission seek your 5 input -- your meaning not necessarily just you, 6 but the judge's input in the budgetary process 7 each year? You know, how much should we budget 8 for this? 9 JUDGE FULLER: No. No. It's what you label 10 the type of contingency. Is, I guess, is it at 11 the federal level? We don't submit it as a budget 12 item. 13 MR. KURTZ: It just gets paid? 14 JUDGE FULLER: It just gets paid and it is a 15 contingency item that they're aware of and it's 16 similar to the contingency funds that are kept by 17 the commission to deal with capital cases that are 18 earned, and it's just there. 19 I assume they pay it out of the reserve. 20 They pretty much have a budgetary track on it. 21 They've seen what it has done over the past decade 22 and so they can probably guess budget-wise, but 23 that's something that is just -- we just never 24 talked about it, interestingly enough. 25 JUDGE BIRCH: Judge Fuller, I think I know KING COURT REPORTING SERVICE 112 1 the answer, but I'll ask you anyway. 2 Some places in Texas they have a similar 3 system but they let the lawyers who don't want to 4 represent indigents write a check every year and 5 that goes into a pool and then they hire people 6 who do want to represent or "represent" them. 7 Have you all ever contemplated that, or has it 8 even come up? 9 JUDGE FULLER: It has come up, but we have 10 never discussed it, Judge Birch, in not an amount 11 of detail. It might become more of an issue if we 12 felt that we were beginning to be strapped for 13 funds, but if it became an issue, you know, my 14 politics, quite honestly, to become involved in 15 it, is it worth my politics to require my bar to 16 chunk in $1,000 a lawyer? And so I have never had 17 to deal with that issue. 18 I think if I had to I wouldn't let my 19 politics weigh my decisions greatly, but it is 20 certainly something that would be there. 21 MR. BRIGHT: The estate lawyer that gets 22 appointed and knows nothing about criminal 23 defense, when that lawyer takes the time to get up 24 to speed to learn all of the constitutional law, 25 all of the rules of procedure, everything to know KING COURT REPORTING SERVICE 113 1 about the criminal case, do you compensate them 2 for that time that they spent getting up to speed? 3 And, secondly, these drafted lawyers, what 4 are the investigative resources? I assume that 5 they don't have investigators in their offices. 6 Do you have a pool of investigators, or how do 7 they investigate independently the case, or does 8 anybody investigate the case? 9 JUDGE FULLER: Right. To the estate lawyer, 10 the answer is are they paid? Yes. 11 MR. BRIGHT: To get up to speed, though. 12 Not for the time spent on the case, but to get up 13 to speed. 14 JUDGE FULLER: Yes, it's to get up to speed, 15 but if the lawyer chooses to do that it's a level 16 of quality that I would pay for. 17 You asked about the tripartite commission. 18 Let me address that. There are still some issues. 19 There is, perhaps, distinguishable differences 20 between judges because oftentimes will I par for 21 that? Yes. Will Judge Girardo? I'll use him as 22 an example. He may not. 23 And so there is still a decision-making 24 process that ultimately the buck stops here if a 25 bill like that came across. As to investigative KING COURT REPORTING SERVICE 114 1 services, we pretty much have a consensus. The 2 answer is yes. 3 Part of it is driven by my experience as a 4 prosecutor. I've prosecuted cases. I've 5 prosecuted serious cases. I know what effort and 6 what resource goes into prosecuting a serious case 7 and I'm a firm believer that the same resource 8 should go into allowing a person charged with a 9 crime to have access to those resources, and I 10 don't think you will. 11 Partly I might be driven, too, why I keep 12 emphasizing we're not perfect. We don't like 13 anecdotal stories, but some of the worst anecdotal 14 stories come out of Hall County from years past, 15 and that has driven the way we look at this issue, 16 but I don't think that you'll find a lawyer that 17 says that any investigative service they wanted I 18 denied. Any psychological service that he wanted 19 I have never denied one. 20 MR. BRIGHT: Was that the case where the guy 21 realized that the guy wasn't his lawyer? 22 JUDGE FULLER: Yes. And there was also a 23 case that the judge was sleeping and the judge 24 appointed the attorney and never missed a beat. 25 Perhaps those examples drive the way we look at KING COURT REPORTING SERVICE 115 1 the issue, and I'm not proud of that. 2 MR. LESTER: Steve, we talked to the 3 appointed lawyers. There are a couple of them 4 that get appointed pretty regularly. At least one 5 of him said that he did all of his investigation 6 himself; that he routinely went out and looked for 7 witnesses. 8 And he said in Gainesville he didn't know of 9 any lawyer that had a full-time investigator that 10 had a practice, but they sometimes use them. 11 MR. BRIGHT: But what I'm interested in is 12 these drafted lawyers and there is no way to know 13 to what extent the lawyer has their heart in it, 14 or their racial attitude, or their like or dislike 15 for poor people in terms of the quality of 16 advocacy that they provide, or the degree of time 17 that they've spent. 18 But I assume that some elderly lawyer who 19 normally doesn't do criminal cases doesn't go out 20 and beat the streets himself. There is no 21 investigator that's just available for those 22 people? They have to apply for funds and get an 23 investigator and so forth? 24 MR. IDE: How do you define elderly? 25 MR. LESTER: You. You, Ide. You're an KING COURT REPORTING SERVICE 116 1 elderly. 2 MR. IDE: That's what I thought. 3 JUDGE BIRCH: There was a proud member of 4 that bar that was drafted frequently. 5 MR. BRIGHT: Right. And he was a patent 6 lawyer, right. 7 JUDGE BIRCH: He was drafted and that sort 8 of thing. The way it worked, I think, and a lot 9 of it has to do with the bar's culture. The 10 culture then as now, in that bar, was to serve and 11 have a sense of responsibility, and that this was 12 part of your responsibility as being a lawyer, and 13 I think we shouldn't ignore the culture. 14 In other words, in our report I hope we 15 address a revitalization of that concept among 16 lawyers, that culture, because in that culture 17 lots of things can happen that have happened in 18 Hall County which I think are basically good. 19 And, no, the senior lawyer and the junior 20 lawyer that was appointed in the firm, a senior 21 lawyer will turn to an associate, bring him in the 22 office and say, I need you to help me investigate 23 this case. 24 And that was a tradition up there. You 25 didn't hire an investigator. You went out and KING COURT REPORTING SERVICE 117 1 investigated it and had somebody in your firm do 2 it, typically a younger lawyer to do it with the 3 supervision of that senior lawyer because in a 4 small community a lawyer can probably do a better 5 job as an investigator in some ways than others 6 have. 7 I was quite shocked later to see some of the 8 things that happened in other areas of the state, 9 and I attributed it to the fact that the culture 10 in the bar wasn't the same and, frankly, when I 11 went into a defendant case in a criminal context 12 and I had a Master's in tax law, and was a 13 business transactional lawyer, and a business 14 litigator, when I went in to defend a criminal 15 case I just didn't like to get beat. 16 And my pride as a lawyer, I didn't like to 17 go in there and appear stupid, and that's part of 18 the culture, and I think that some of that, 19 whether you like the defendant or not, I mean 20 whether you like your client particularly or not. 21 And, again, I think it can work, but it 22 doesn't always work, but a lot of it so much is 23 that culture. I think in other bar associations 24 where you don't have that culture people are just 25 so consumed about making money, or there is no KING COURT REPORTING SERVICE 118 1 tradition it wasn't working, but, again, it will 2 work in some places. 3 CHAIRMAN MORGAN: Okay. Well, I see that 4 it's noon. I want to thank, again, our visitors. 5 MS. BROWN: I was wondering what steps will 6 be taken to do that, to diversify the commission. 7 CHAIRMAN MORGAN: Is this a position that 8 the NAACP has taken specifically you're speaking 9 for now? 10 MS. BROWN: Well, it's something that we've 11 been thinking about a lot. We've been doing work 12 with Steven Bright in terms of thinking about more 13 effective changes, I guess, that we were thinking 14 that that would be one place to start. 15 MR. KURTZ: Well, there is an 16 African-American member of the commission. 17 MS. DEVINE: African-American male and 18 female. 19 MR. KURTZ: Excuse me. I apologize for it. 20 MS. BROWN: I see the females, I think that 21 we were concerned about the males. 22 MR. KURTZ: He hasn't come. 23 MS. DEVINE: We've heard from several 24 members of the civil rights and non-traditional 25 civil rights as well. KING COURT REPORTING SERVICE 119 1 CHAIRMAN MORGAN: I would also say that if 2 the NAACP or other civil rights organizations are 3 interested in making a presentation before the 4 commission you should consider that. You have an 5 open invitation, and if you would just drop me a 6 note we'll make sure that we give you time on our 7 agenda. 8 MS. BROWN: Thank you. 9 CHAIRMAN MORGAN: And with that, I think 10 we're going to adjourn to an executive session of 11 the Commission and lunch. The next regularly 12 scheduled open meeting of the Commission is 13 Friday, January 18. Thank you. 14 15 (Meeting adjourned at 12:03 p.m.) 16 17 18 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 120 1 C E R T I F I C A T E 2 3 I hereby certify that the foregoing 4 transcript was taken down, as stated in the 5 caption; that the colloquies, questions and answers 6 thereto were reduced to typewriting under my direction; 7 and that the transcript is a true, correct and complete 8 record of the evidence given. 9 The above certification is expressly 10 withdrawn and denied upon the disassembly or 11 photocopying of the foregoing transcript, unless said 12 disassembly or photocopying is done under the auspices 13 of King Court Reporting Service, and the signature and 14 original seal is attached thereto. 15 I further certify that I am not a relative 16 or employee or attorney of any party, nor am I in any 17 way interested in the result of said case. 18 Pursuant to Article 8.B. of the Rules and 19 Regulations of the Board of Court Reporting of the 20 Judicial Council of Georgia and OCGA 15-14-37 (a) and 21 (b), written disclosure was presented. 22 This, the 17th day of January, 2002. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE