Jonathan Ross: American Bar Association. Good morning. My name is Jonathan Ross. And on behalf of the American Bar Association’s Standing Committee on Legal

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40 Years After Gideon v. Wainwright

10:30 a.m. - Noon

November 13, 2003

[Tape 1, Side A]

Jonathan Ross: ...American Bar Association. Good morning. My name is Jonathan Ross. And on behalf of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants, I’d like to welcome you to this special public hearing in recognition of the 40th anniversary of Gideon v. Wainright. I’m the immediate past chair of that standing committee. And it’s my honor to introduce to you our panel for today’s hearing.

To my right, your left, is Cynthia E. Jones. Ms. Jones is a professor of law at American University’s Washington College of Law in Washington, D.C. Prior to her faculty appointment, Ms. Jones held the position of director of the Public Defender Service for the District of Columbia. Ms. Jones is a current member of the ABA’s Standing Committee on Legal Aid and Indigent Defendants.

And to my left, your right, is Jean M. Faria. Ms. Faria is the assistant federal public defender for the western and middle districts of Louisiana. She also serves as chair of the board of directors of the National Legal Aid and Defender Association. We are honored to have Ms. Faria represent NLADA on the panel today as our special guest.

I will serve as chair of the panel. And we are going to run an extremely tight schedule for this hearing. So let me just take a few minutes to explain what we’ll do. And then we’ll begin immediately. The hearing will be split into two sessions. The morning session begins now and will run until 12:00. There will be an hour and a half break, after which the hearing will resume promptly at 1:30 p.m. and run until 3:00 p.m.

Witnesses, when I call your name, please approach and be seated at the witness table to my left. Before you begin, I will tell you the exact amount of time available for your testimony. We would appreciate it if you would speak slowly and clearly into the microphone to allow the court reporter to accurately record your testimony.

Please begin your testimony with a short statement, indicating the basis of your familiarity with the provision of indigent services in your state. If necessary, I will provide a one-minute warning that your time is almost up. And then when it’s up, I’ll be rude.

Following each witness’ testimony, there will time for a question from the panel. At the end of both the morning and afternoon sessions, we’ve reserved some time for brief comments from audience members. And after the final witness has testified, audience members who wish to provide comments should proceed to the middle aisle and form a line beginning at the front of seats. Each person in line should proceed in turn to the witness table, speak directly into the microphone and limit their comment to one or two minutes, if possible, to allow time for others.

Before we begin, let me express our appreciation to our gracious host, the National Legal Aid and Defender Association for allowing us to hold this hearing during the 2003 annual conference. This is the fourth in a series of conferences we have held around the country. It is pleasure at this time to call to the witness stand Jonathan E. Gratus (phonetic) from Albany, New York.

Jonathan Gratus (phonetic): Good morning. I am glad to have been asked to testify before you. I am a little chagrined that I once did this before in 1982 at a hearing in Boston. And things are worse in New York now than they were then. So perhaps I have had something to do with that.

I have been the executive director of the New York State Defender’s Association since 1978. In 1981, the state of New York funded us to establish a backup center in Albany to provide services to all the states, more than 5,000 public defense lawyers, legal aid attorneys, signed council practitioners, and public defenders.

I want to describe to you, just roughly and briefly, the nature of our state. In 1965, New York State delegated responsibility for the public defense system to localities. That set the stage for a disaster in New York. That disaster was accompanied by a period in which both federal and state funding of prosecution services created vast disparities between prosecution and defense at the federal and state levels. And so at the local levels, there was tremendous impoverishment of the defense function.

Because New York has 62 counties and at the moment more than 95 plans providing representation, it’s necessary to look at the state and its 38-year-old statute. Which has now been transmuted directly by practice as roughly having 63 autonomous governments, 62 counties and the state of New York, none of them coordinating with each other. And so each plan and each community differs from virtually every other plan in each other county so that the scope of services, the nature of those services, the salaries, the nature of the work that can be done, the availability of investigators, the availability of support staff, radically differs and, in the main, are impoverished. Caseloads are radically out of wack.

In some places in New York, there are caseloads per year that the lawyers handle 1,000, 1,200, 1,600 cases. Most of the service in the state is part-time. The rule, I would say, is that cases are not generally investigated. There are offices that boldly proclaim year in and year out, the lack of investigators in staffed offices. There are judges who are proud to proclaim that they see themselves as the gatekeeper of the county treasury and don’t provide for expert services.

Eligibility is used as a governor on the system. All over the state, we have a system of justice courts outside the city of New York and Long Island in which something like 2,300 justices run village and town courts that exercise preliminary jurisdiction over misdemeanors and preliminary jurisdiction over felonies and complete jurisdiction over misdemeanors and lesser offenses. And it is rare that counsel will be available at the arraignment in those cases. There is a process in which clients are mined (phonetic) for their money through partial payment scenarios, through illegal co-pay scenarios, through all kinds of intrusive mechanisms that interfere with the right to counsel.

Last year, after a number of years in facing a crisis in deflated assigned counsel fees, New York State for the first time in 40 years provided some $40 million. Or at least promised $40 million, in revenue and accompanied a change in assigned counsel fees, the $75 an hour for all but misdemeanors. Misdemeanors went to $60 an hour.

That money is classically too little too late. And I mean by that, that it is about half of what counties will need to implement the change. And the money is not forthcoming until the year 2005. As a consequence, we are now in greater chaos in New York State than we’ve ever been before. There are some 25 or 30 counties that are switching their systems. If it could be done through a guided process of social change, it could be very productive. But there is no oversight agency. There are no standards. There is no accountability. No one is minding the store. And as a consequence, we are engaged in many places in a rush to the bottom.

There are jurisdictions that are cutting one another’s throats. There are public defenders who are looking out for themselves and the raising of their salaries, willing to design conflict offices that are inferior. There are cost containment mechanisms that are being put into place. I’ll give you one brief example that plagues the rest of the country but has never been a real issue in New York. And that is low-bid individual lawyer contracts. We have been able to hold them at bay for more than a quarter of a century. They now have raised their head and will be -- something that will be like putting out forest fires in the months ahead.

We are engaged at the moment with a community organizer and holding statewide hearings in the client community throughout the state to confirm the reality that services are being poorly distributed, poorly provided. Clients are being seen for five minutes before court hearings, that in many places they are not seeing lawyers at all.

We have recommended -- and the primary thrust of my testimony this morning is to share this with you -- to the state level -- that an independent public defense commission be created in New York immediately. That that commission be empowered to function as the conduit for a substantially increased state funding, that it create standards for performance and for systems, and that those standards be the basis on which funding is forthcoming.

The last couple of years have seen the creation of a blue-ribbon group, of the actual authors of our public defense legislation. The two people who wrote the statutory scheme have come out to say, “My lord, this is not what we intended.” Governor Rockefeller’s counsel, our former chief justice, the bishop of Albany, a fairly large contingent of people, have formed a committee for an independent public defense commission.

It’s been endorsed by substantial numbers of organizations, including the County Judges Association, the State Community of Churches, the New York State Catholic Conference, the League of Women Voters, our association, the State Association of Criminal Defense Lawyers, elements of the state bar, its criminal justice section and others.

The people in New York hold on the question, support a state agency. In response to the question, New York should create an independent agency to administer the public defender system in order to guarantee that every person accused of a crime, regardless of income and location, is provided with experienced legal representation, overwhelmingly supported that proposition. The client community is involved now in organizing behind it.

So I share what I guess is some bad and good news. The bad news is that since the hearing in Boston in 1982, the crisis has grown worse in our state. The good news is that though it appears intractable, we expect to change it. But in the meantime, we are losing hundreds of our citizens to an inadequate system of public defense representation.

Mr. Ross: Thank you for your testimony. Could you tell us what, if any, impact statewide the New York Bar Association’s lawsuit about fees has had?

Mr. Gratus (phonetic): The lawsuit, actually, was brought by the New York County Lawyers Association. And I think it has had -- well, I think it’s had a number of different impacts. First of all, five days before the preliminary decision in that case, which dealt with just (indiscernible) and standing, our governor appointed a task force to study assigned counsel fees. I don’t think the dates are coincidental, but I’ll never be able to establish that. But in any event, that task force set the tone for actual legislative deliberations.

The threat of the lawsuit, which was embodied in a decision temporarily, that $90 per hour would be required in the city of New York, certainly got the attention of our legislative. As did a parallel lawsuit brought in the Eastern District of New York called Nicholson, in which a sub-class of women plaintiffs received $90 an hour -- their lawyers received $90 an hour in cases.

There may be people in this audience who are privileged to know this. I got a call from a reporter. I believe that that case was settled yesterday at $75 an hour, but I have none of the details. The impact, however, has been positive in moving the assigned counsel fee change. But the problems that came with the assigned counsel fee change have caused localities who already were afraid that they would be ordered to pay $90 and $75 an hour. They are changing their systems at a rapid rate. So it is both good and bad.

We would hope that a cadre of well-qualified private lawyers will come out of this mix. But at the moment, there are an awful lot of bad things happening in response to the fear that counties, again, the payer for the system, will be stuck with an unfunded, terrifically unfunded, mandate.

Mr. Ross: Mr. Gratus (phonetic), thank you very much for your testimony.

I will tell the audience and our speakers that these proceedings are being recorded by the local Seattle affiliate of NPR. And if any of the speakers have a problem with that, please let me know. I wouldn’t expect so.

All right. Thank you very much, sir. It’s my privilege next to call William J. Leahy, chief counsel for the Committee for Public Counsel Services, Boston, Massachusetts. We’ll have 10 minutes. Thank you, sir.

William J. Leahy: ...chief counsel for the Committee for Public Counsel Services, Boston, Massachusetts. Thank you. I think it’s interesting that you have my testimony following Jonathan’s because I’ve got the structure. And he, or at least the state of New York and its disorganization, seems to have some of the money that we don’t have in Massachusetts.

In Massachusetts, since 1984 we have had exactly, or at least similarly, the kind of independent statewide organization that Jonathan has just suggested is desirable for New York. And it is desirable in many ways.

If I could, I gave to the panel this morning a series of public documents. One is, I’d like to quote an excerpt from the remarks on the Gideon 40th anniversary at the State House in Boston, Massachusetts, in which I said -- for the panel members, this would be the second paragraph --- some of the second paragraph of my remarks -- “The right to counsel in Massachusetts is today an excellent condition in every respect but one. We have a capable and public-spirited cadre of attorneys who serve the public interest by representing the poor with confidence and passion. We have an agency, which takes seriously its responsibility to provide high quality representation. We have training expectations and performance standards, which meet or exceed every comparison. We simply do not have enough money. Or to be precise, we do not receive sufficient funding to pay a reasonable hourly to assigned private counsel or reasonable salaries to our staff attorneys.”

When you go over the ABA 10 principles and you relate them to how our organization is designed to operate, and largely does operate, on the surface it certainly looks as though we’ve got all the problems licked in Massachusetts. We’ve got the independence. We’ve got the standards. We’ve got the oversight of the private bar. We’ve got the caseload limitations. We’ve got the access to support services. We have everything you could wish for. But we also have an enormous breadth of responsibility, as I indicated in my written -- court written summary.

We have very extensive misdemeanor representation responsibilities, which we have attempted -- largely unsuccessfully -- to have the state treat as civil infractions rather than criminal offenses with all the consequences of criminal offenses and the cost of criminal representation. We also have very extensive civil case responsibilities in Massachusetts. There is entitlement for both parents and children in the care and protection cases in which Massachusetts is extremely active. And therefore, the cases are extremely numerous.

We have extensive responsibility in the mental health area, civil commitment work, which is fairly traditional, but also almost a $2 million a year responsibility in what we call “Rogers” cases in Massachusetts, which are persons who are not competent or considered not competent to be medicated. And they have a right to counsel in those cases. Also, in the now increasingly popular sex offender registry, which comes in Massachusetts loaded with right-to-counsel at every stage of the proceeding and now becoming more popular. And slated, I think, to become much more popular in the future -- if media pressure is any guide, the commitments of allegedly sexually dangerous persons following their completing of their incarceration for the offense.

All of these responsibilities are expensive for us. And what we’re seeing in Massachusetts is a fiscal squeeze, in which doing those cases and doing them right and doing them at a reasonable cost puts us into competition every year in the budget process with funding initiatives which are worlds more popular. [We’re] doing something about education reform, trying to keep up with Medicaid costs, trying to do something for the elderly, the young, the disabled, the retarded. And despite our extensive responsibilities, of course, in the civil area, we’re still primarily politically seen and our major cost center still is criminal defense. And criminal defense will never be a popular political item.

Since I gave that talk on the 40th anniversary, and we received a lovely plaque from the state legislature extolling our virtues and saying how appreciated we were and how necessary we were, we had in the summer a fairly well-publicized crisis in which the legislature recessed for the summer without having taken action on the end of the fiscal year. That’s June 30th in Massachusetts deficiency. We tend to receive a deficiency appropriation around the end of each fiscal year as the final bills come clear and the attorneys are paid -- the private attorneys.

And the legislature recessed and that wasn’t done. And then some of the materials you have relate to a gathering storm that started in southeastern Massachusetts and spread to the western part of the state. And if you know Massachusetts at all, you’ll not be surprised to know that really nothing happened until it hit Boston. And then suddenly, it became front-page news. And it was a crisis. It hadn’t been a crisis when it was rolling through the rest of the state.

So eventually in mid August, that appropriation was taken care of but at some cost because there were shots from the governor, Governor Romney, that this was a threat to public safety. And there were, not necessarily in the public press but behind the scenes, there were suggestions that if the lawyers knew what was good for them, they’d get back to work. And if the agency that funded and oversaw them knew what was good for it, it would get them back to work. And there were comparisons to the 1919 Boston police strike that propelled the then governor, Calvin Coolidge, in the view of the some, in the view of many I guess, to the presidency.

And at the same time, the governor -- having recommended the approval of the payment of the bills in full for the last fiscal year -- he promptly vetoed, in almost the same breath, $13 million from the $72 million that had been appropriated for private counsel funding in the current fiscal year. That is a veto, which the Massachusetts legislature has six days from now to override. And we’re assured they will override, but it hasn’t happened yet. And if they don’t override, then the lawyers who provide the services will know that their fears will come true, that in fact there will come a day next spring or summer when their income takes a temporary halt for an unknown period of time because the state hasn’t seen fit to fully fund the account.

Also, on the staff side, and this relates to the one structural deficit, and if New York is lucky enough to get its independent commission, I think the principle lesson it can take from Massachusetts is you have to create a truly mixed system of assigned counsel. You cannot have, as Massachusetts has in many of its areas, almost complete reliance on private counsel.

We do, I think, an excellent job of overseeing private counsel. But except in the felony defense area, we really do not have -- we either have no staff presence or we have very limited staff presence in terms of direct representation. We have almost none in the juvenile delinquency area. We have one great project, youth advocacy project, but it only covers the Roxbury section of Boston.

We have two staff projects on the children and family law child welfare cases, Salem and Springfield, but not in the rest of the state. We have a very tiny mental health staff, which mostly oversees private counsel representation, rather than provides directly itself. And we need a staff component. And we’re pushing. And we proceed by inches where we need to proceed by big steps in terms of achieving some balance in the delivery of services outside the felony defense area.

Mr. Ross: Mr. Leahy, thank you very much. Coming from Northampton, Massachusetts, I’ve never heard of Boston. But I’m glad to know it’s so influential.

Ms. Jones.

Cynthia Jones: ...Professor of Law, American University’s Washington College of Law, Washington, D.C. Yes. I have one question for you about caseloads. Usually, the problem that arises when funding is limited, is very high case loads and a compromise in the quality of representation. Has that been a problem? Or what has been done to combat that?

Mr. Leahy: Well, actually, we have a lot of controls in place in both the public and the private side. On the public side, we strictly limit our caseloads. And the minute that our caseload limits are reached, we stop intake and it goes to the private bar. In the private bar, when we have had enough attorneys, it also hasn’t been a problem. In fact, we have caseload limitations for the private bar as well. And we have an annual billing cap of 1,800 hours that is inflexible. Nobody can bill more than 1,800 hours on committee cases.

The problem is that in the past three or four years of budget restrictions and a stagnant hourly rate, we’ve lost several hundred of our assigned private counsel, over 10 percent of our total number. And because of budget cuts in our staffing area, we’ve lost about 10 percent of our public defender staff as well so that it’s not the absence of case load limits but it’s the combination of case load limits and low funding, which is now leading to a counsel crisis.

I left a copy with your staff person of the recent October 20th Spangenberg Report on the crisis in western Massachusetts in the children and family law area, which is where it’s really becoming -- it really is, in fact, an immediate crisis right now.

So standards are wonderful, but they don’t replace funding. Bottom line.

Mr. Ross: Mr. Leahy, thank you very much for coming out here and speaking with us.

It is my privilege to call on Phyllis Subin, justice systems coordinator and trainer and former chief public defender, New Mexico Public Defender Department from Albuquerque. Welcome.

Phyllis Subin: ...justice systems coordinator, trainer, former chief public defender, New Mexico Public Defender Department, Albuquerque, New Mexico. Good morning. Thank you very much for inviting me to be here today.

As you indicated, for almost six years between 1997 and early January of 2003, I was the chief public defender for the state of New Mexico and the leader of the New Mexico Public Defender Department. That department is a traditional statewide indigent defense delivery system, the largest statewide law firm in New Mexico. And it represents approximately 57,000 cases a year.

I’d like to describe New Mexico’s indigent defense delivery system to take you from the East Coast to a very large southwest jurisdiction. And to talk about the department and to make a couple of comments regarding how the department’s situation fits with the ABA’s 10 principles of defense delivery system.

But first, since many folks don’t really know New Mexico, I would like to share with you some information about the state of New Mexico so that you do have a context for some of my comments. New Mexico is geographically the fifth largest state in the union, stretching from the southern Rocky Mountains in the north to the New Mexico border in the south. Some claim, and I won’t name names, that New Mexico on the east side of the state is really Texas and on the west it just sort of seems to fade into Arizona.

The total population of New Mexico is only about 1.8 million. Many of these people are poor, especially children. The federal government employs many New Mexico residents through its four Air Force bases. We have two of the three national laboratories, Sandia and Los Alamos, home of the nuclear bomb, and ownership and maintenance of federal land holdings.

The history of the Spanish in New Mexico and our proximity to the Mexican border also means that in many places, you are just as, or even more, likely to hear the Spanish language spoken rather than English. It also means that in the Grecian issues are serious consequences of criminal convictions for the state of New Mexico.

New Mexico also has 23 recognized native American tribes, which are sovereign governments and which operate a separate tribal court system that is not staffed by the New Mexico Public Defender Department. These tribal courts handle reservation cases not prosecuted by the U.S. attorney’s office in federal court. The tribal courts do not recognize an absolute right to counsel. The Navaho nation does maintain a public defender office system, but most other tribes do not -- using, instead, non-law-trained advocates.

I would note that some of these tribes have contracts with the county district attorneys to do prosecution in their tribal courts. One of the issues in New Mexico is full faith and credit for tribal court orders, vis-a-vis the state court system. And this, then, does create some issues in the state court system when we look at recidivist crimes, such as drunk driving, where the tribal court conviction would be sought to be utilized for purposes of advancing the state drug court penalties.

The New Mexico Public Defender Department itself is responsible for all criminal and delinquency cases handled in the state court system. And that state court system consists of the Supreme Court, an intermediate court of appeals, and trial courts, district and children court, magistrate courts and the metropolitan court in Albuquerque -- the latter two handling misdemeanor cases.

The department itself was created in 1973, following the United States Supreme Court’s decision in
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