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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November 13, 2003

[Tape 2, Side A]

Male Voice: . . . asked to conduct these hearings during their annual meeting and appreciate their assistance.

So without further ado, let me call Gary Windom from Riverside County Public Defender, Riverside, California, for a 10-minute presentation.

Gary Windom: ...Riverside County Public Defender, Riverside, California. Thank you for the opportunity to speak to this group this afternoon regarding Gideon and its impact.

I don’t think anyone can speak for the state of California. It’s a large state. It has 58 counties. And in that county, we have public defender systems that range from large to small, from rural to urban. We have well funded programs. We have underfunded programs. Some of our public defenders are elected. Some are appointed. Some are contracted. Some are alternate public defenders, and some are appointed by the courts. And then, of course, some of our counties don’t have any public defenders at all.

So that’s why I say I can’t speak for the state of California in terms of the promises of Gideon. I’d like to instead concentrate on Riverside County because that’s the knowledge I have.

Our court admitted in 2002 that 12,711 people plead guilty in Riverside County to misdemeanor charges without ever speaking to a lawyer. And that’s because in 1986, because of some budget problems at that time, the public defender was removed from municipal court arraignments. And every year, since I’ve been in the county of Riverside, four years now, I have requested funding to get back into misdemeanor courts and have been denied that funding on each occasion. And as a result of the moneys we have -- we handle about 38,000 cases per year in my office alone -- we don’t have the resources to put people in misdemeanor courtrooms.

A specific example is that I went into municipal court to watch an arraignment in anticipation of this particular speech. And I watched the commissioners and municipal court judges talk to those people. And they stated in quote: “If you plead guilty today, you’ll go home. If you want an attorney, you’ll stay in jail for two more days. And then your case will be set for trial. And if you can meet the bill amount, you will be released.”

And as you can see, with a statement like that, almost everybody in the room plead guilty -- not guilty to a negotiated plea, not considering whether or not you have a mental disease or defect, not considering whether or not there is an element missing in the charge. But they plead to the sheet, every allegation that was alleged. And of course, the system is not opposed to that because the court moves on. The executive doesn’t appreciate the need because they say it in quote: “Why should we have a lawyer there? They’re guilty, aren’t they?”

And the client doesn’t understand. They just want to go home, not realizing that there might be another day they have to return and suffer the consequences of having multiple counts on their records.

The other thing I wanted to talk about briefly too was balance. This system is out of balance. I’ve been president of the California Public Defenders Association and been a board member of their association for over 15 years now. We have approximately 4,000 members. And so I get to see what the other counties are doing. And for every $100 that the district attorney receives, the public defender receives an average of $60.90. For example, Alameda County receives $73.90 for every $100 that the district attorney receives; San Diego, $68.80 for every $100 that the district attorney receives; Orange County, $60.80; Sacramento, $57.60; Santa Clara, $55.20; San Bernardino, $46.00; and Riverside County, $43.30 for every $100 that the district attorney receives.

It’s just an imbalance in the funds. As a result, the number of attorneys and the ratio that is between and prosecution is astoundingly disproportionate. For example, they have vertical prosecution, where we can’t go vertical defense because we just don’t have the resources to do so. In addition to that, the staff ratio -- we do 85 to 90 percent of what the district attorney does in the state of California in terms of the number of cases that they charge. The ratio, however, is that in Orange County they have 72 percent of whatever the district attorney has. And Alameda County, 69 percent; Kern County, 64 percent; Sacramento County, 51 percent; and San Bernardino County, 50 percent; and in Riverside County, 49 percent of what the district attorney has in representing its people. Yet we do 85 to 95 percent of the cases that are charged by the district attorney’s office.

With the funds they receive, they can do things like vertical prosecution. They can charge matters that they would normally not charge if they were balanced. For example, two weeks ago, our board of supervisors, in the most arduous crisis that any state has had, gained 16 new deputy sheriffs and eight new prosecutors and zero new public defenders when they are cutting 5.4 percent in every other department. They are not looking at the impact of that to the system. Sixteen new deputy sheriffs will bring approximately 900 new arrests per deputy to the system. Each new prosecutor, on a very conservative side, will bring 150 new charges into the system if it’s felonies or 400 new charges into the system if they’re misdemeanors.

That’s very conservative. Yet the impact of that on the defense side creates a counterfeit system. And just like any regular currency, if you have all the gold on the head and none on the tail, you have a counterfeit currency. Likewise in the criminal justice system, if we spend all our money for enforcement and prosecution, we have a counterfeit system. Our system needs to be balanced. And that’s why I am here to testify that without balance, there will be no justice.

Mr. Ross: Thank you, sir. Ms. Jones.

Ms. Jones: I am astounded by some of what you’ve had to say today. Most shocking -- I guess, no misdemeanors are represented by counsel?

Mr. Windom: That’s correct -- in Riverside County. And also in San Bernardino County, they just last year -- I think it was 2002, NLADA did an audit of San Bernardino County. And they compared it with Riverside County. And then, for the first time in 2003, they now have attorneys in the arraignment court in San Bernardino. Riverside still does not.

Ms. Jones: So, has anyone thought to bring suit to -- I’m just . . .

Mr. Windom: No. I’m just saying it’s in the process -- the California Public Defenders Association, L.A. County, is doing some briefing for us. And we intend to bring an action.

Ms. Jones: And just one more follow-up question. So the people who are pleading guilty to misdemeanors, some of them are incarcerated as a result?

Mr. Windom: That’s correct.

Ms. Jones: Unbelievable. Good luck.

Mr. Windom: Thank you.

Mr. Ross: It’s hard to say thank you after that, isn’t it? (laughter)

From Maryland, Nancy S. Forster, who’ll have 10 minutes to present Maryland.

Nancy S. Forster: ... Deputy Public Defender, State of Maryland, Office of the Public Defender. Thank you. As a former appellate attorney, I feel like I should begin with, “May it please the court.” (laughter) I am the deputy public defender in the state of Maryland, Office of the Public Defender, which is headed by Stephen Harris, who is the public defender.

And I thought I’d begin by giving you a little background information on our agency. We are an independent state agency with statewide responsibility for representing the indigent criminal defendants. We have a centralized administration that’s located in Baltimore City. And much like New Mexico, who had testified earlier, we have districts located throughout the state that handle the trials throughout the state. We have 12 districts.

We also have six specialty divisions. That includes, an appellate division, a capital defense division, mental health division, a post-conviction or collateral review division and ASINA (phonetic), which is Child in Need of Assistance and Termination of Parental Rights Division. And we recently formed a new division called the Forensics Division.

Our agency’s operating budget for the last fiscal year was approximately $63 million. We are just shy of 1,000 employees, approximately half of whom are attorneys. And you asked the question, “Is Maryland keeping the promise of Gideon?” Well, we are trying. And we are trying this notwithstanding the fact that our attorneys in the Office of the Public Defender are paid two full pay grades less than our counterparts in the Office of the Attorney General.

And let me explain what that means in real dollars. An assistance public defender in the appellate division who is briefing and arguing the exact same case as her counterpart, her adversary, in the Office of the Attorney General, will earn approximately $10,000 less a year than the person on the side of the podium in the same courtroom.

Needless to say, this really has had a demoralizing effect on our attorneys so much so that for the first time in our agency’s history, we are losing attorneys not just to the private sector, but now we’re losing them also to the public sector. We have had, I would call, a mass exodus of experienced attorneys to go work for the Office of the Attorney General.

We are also trying to keep the promise of Gideon, notwithstanding crushing caseloads. The problem became so acute a little more than a year ago in our Baltimore City district, which handles the greatest number of cases in our state. We had attorneys a little more than a year ago in that district who were handling 80 to 100 open, serious felony cases at any given time.

So at that time, when no one in the legislature or the powers that be in the budgetary process would listen to us in our call for more staff, Mr. Harris, the public defender, took drastic measures and he convened a press conference. And he announced at the press conference that given the overwhelming case load of our Baltimore City attorneys, we could not possibly -- it was impossible to -- provide adequate representation required by the Constitution and that our office, effective immediately, would refuse to accept any new cases in Baltimore City.

Within two weeks of that press conference, the Office of the Public Defender through emergency measures was given 10 new attorneys and three new support staff for our Baltimore City office. But of course, we knew that this really was not a long-term solution and, more importantly, we in administration did not want to continue with a legacy, really, of crisis-based funding.

So it became really obvious to me and when I was involved in the budgetary process that the Office of the Public Defender really needed to do something different to impress upon the powers that be why we really needed to be adequately funded and staffed. Interesting enough, during a meeting with the Department of Budget and Management, which is our first level that we go through in this process who sets our budget allowance, and who is made up of nonlawyers -- at one of these meetings when Mr. Harris and I were trying to explain desperately why we needed adequate funding and staffing, one of the members of the department suggested that perhaps what our office needed to do was to calculate the win-loss record of our attorneys and use that to demonstrate the need for more lawyers.

Well, needless to say, we do not think that was a good idea (laughter) so we really -- and it was eye-opening in a lot of ways because it suggested more than anything a need for education of those involved in the budget process. So we really embarked on a new strategy of educating everyone involved in our budget. And with great assistance, I should say, from NLADA and from David Carroll in particular, we set about giving power-point presentations to anyone who would listen to us in the our Department of Budget and Management, in the legislative budgetary subcommittees, in the governor’s office -- the governor’s counsel.

And what we did is through these presentations, we demonstrated that our caseloads -- what we did is we compared Maryland caseloads to the ABA standards. And it demonstrated that the Office of the Public Defender in the State of Maryland simply could not provide adequate, competent representation under these caseload numbers that were overwhelming. And really, I think more importantly, we demonstrated that, in the long run, a well-staffed and well-funded Office of the Public Defender saves the state money. It saves money in retrials and, obviously, in less ineffective assistance claims.

And actually, I am going to end on a happy note here by telling you that after giving these presentations, the Office of the Public Defender received, really, unprecedented support from the Department of Budget and Management, from our legislative budgetary subcommittees. And from the governor, who has signed on now to phase in a total of 212 new positions over a period of three years in the state of Maryland. And in fact, fiscal ‘04 marked the first year of this initiative, where we were given 58.5 new positions, 35 of which are attorneys.

We still have a long way to go. And we understand that. We are not going to rest on our laurels and think that everything is Hunky Dory because I think there is a trust factor here too that we’re leery -- although they say they’ve signed on. And we have gotten 58.5 new positions. We’re going to continue to fight and not let them think that we’ve gone away because we’re content now.

But we have laid the necessary groundwork. And what we hope to do, accomplish, ultimately is a caseload based funding formula, that whenever our case loads by whatever that we get additional positions. And I think that that will go a long way in helping Maryland fulfill the promise it gave.

Mr. Ross: Thank you very much. Ms. Faria.

Ms. Faria: NLADA was very happy to be able to partner with the Maryland Public Defenders Office. And we are very pleased with the results that you were able to get.

Ms. Forster: We are absolutely.

Ms. Faria: I wanted to ask you one question about juvenile justice in your jurisdiction. What is the state of that?

Ms. Forester: Well, we just had -- the ABA, if you don’t know, did an assessment of -- I believe it was five or six states. Maryland was one of those. And we had a conference, a management conference, last week. And what we said to the managers was it was embarrassing, to say the least, what the assessment said about our representation of juveniles. Many juveniles in our state are waiving counsel. Or I should say the judges are suggesting that they waive counsel. It really pointed up a lot of problems in the state of Maryland with respect to juvenile representation. And we’ve already begun to work on a lot of the recommendations from the assessment.

Ms. Faria: Thank you.

Mr. Ross: Thank you very much for your testimony, m’am.

Ms. Forster: Thank you.

Mr. Ross: It is my privilege to call upon John J. Hardiman, the public defender from the Office of the Rhode Island Public Defender. Mr. Hardiman will have 10 minutes to present -- is it the longest shoreline in the country? Is that what it is?

John J. Hardiman: ...public defender, Office of the Rhode Island Public Defender. I think so.

Thank you very much. For you people in (indiscernible) social study should know that the state of Rhode Island is the smallest state in the union geographically. I think we’re the second most densely populated state in the country though. We have approximately about a million people in the state of Rhode Island.

Like previous speakers, we too are underfunded, understaffed, underpaid and often times our clients are under represented, particularly those clients who have become (indiscernible) of our office (indiscernible) to private counsel.

I’ll tell you a little bit about our system. We’re a statewide system. The public defender in the state of Rhode Island has been in existence since 1941. We do juvenile, adults from start to finish of the appellate process. We also represent parents in abuse and neglect cases. One of the -- historically, in the state of Rhode Island, we have not represented the clients at arraignment. Presently, generally, we don’t do that in every place other than Providence County. We’re pretty proud of the fact that within the last eight weeks we started a new program. We’ve got two new attorneys added to our staff for the purpose of being in arraignments in Providence County.

And we kind of combine that with this holistic approach that we are doing in our office now. We’ve got all of our services up front at arraignment, trying to identify people with mental health issues, substance abuse issues, alcohol, whatever it may be, housing issues -- and use all our resources to try to affect those people from the very initiation in the process.

And this, in eight weeks, the remarkable success that we’ve had. And it’s like unbelievable. And the stories we have to tell, the human interest stories, of the people’s lives that we’ve impacted, it’s just like having a lawyer there and having a social worker present that we can actually do something. And the scary part about it is when you start thinking about all these years and all these times that we haven’t had anybody there and people going into jail for things that they shouldn’t be going to jail for.

Seven percent of the people serving time in prison in Rhode Island are serving one year or less. So it gives you a pretty good indication, indeed, to have an attorney, particularly at a district court level with misdemeanors, where people are pleading left and right, just like the previous speaker said, just to get out of the court room and go home.

And we had a similar circumstance not long ago, I think in California, we had a judge who indicated to a defendant that -- he came in. He was unrepresented. He owed court costs or something. And he told them that if he wanted to take the deal, he would go to jail for six months. Otherwise, they are going to have a hearing and get a lawyer and probably look at three years in jail. The deal is only on the table right now. You take the six months or have a hearing and you’re going to get a lot more than that.

It came to my attention -- I filed a disciplinary complaint against the judge. And it made me popular in the state of Rhode Island right now among the judiciary. But it’s had an impact. It’s had a chilling impact on all the judges who routinely were doing those kinds of things. And they’ve stopped doing it.

One of the problems with our staff -- we have 89 employees in our office. We have -- 46 of those people are lawyers. And whenever we have even the smallest of vacancies -- right now, between now and January, we’re going to have five vacancies due to retirement or people quitting. And that’s devastating for us to have that happen. When that happens, all of a sudden we have courtrooms that don’t have any lawyers. Our caseloads -- you can’t replace a lawyer all that fast so people have to pick up the case loads of a felony lawyer who has maybe 85 or 90 cases in his files. And that really affects office major-wise even though (indiscernible) from bigger states (indiscernible) it’s kind of routine. For us, it has a major impact on us.

The good news about having the two lawyers in our court room, not only the impact we’re having on clients. The bad news is this. We didn’t get these two lawyers because anybody thought about Gideon or anybody thought about Shelton. The politicians didn’t care about that. What they cared about was -- I was there to make a case for the fact that we had two lawyers sitting in that courtroom.

We reduced the population of people going to prison. And that would save money. And that’s the only reason why we got those two people. It wasn’t because of any great idea about, you know, they should have the right to counsel. People just don’t care about that.

One of the other issues we have gone in this state is the court-appointed process. Presently, the Supreme Court administrates our court-appointed process. I learned two weeks ago that they decided not to fund it at all. And when they put in their budget, they asked for no money for indigent defense. And basically, they wanted to get rid of it out of the judiciary and place it in the executive branch, which basically comes to the public defender’s office.

And historically, the Indigent Defense Fund has been underfunded. Every year, it goes into the hole and we have to ask for hundreds of thousands of dollars to pay lawyers their fees. The court-appointed fees in Rhode Island are between $30 and $40 per hour. So I’ve been a part of a task force approximately six months. We’ve been studying the process, making recommendations.

And so one of the recommendations we obviously have is if everybody’s on board that we need to pay the lawyers more money because what’s happened is the more qualified, more competent lawyers are not on the list because it doesn’t benefit them financially to being on it. They lose money by representing clients. And the people who are on the court-appointed list are people who are not your best lawyers. They are people who just -- they need that $30 to $40 just to kind of pay their rent. So the level of competency is really low.

We do have an answer. We have a great (indiscernible) taking it over. We feel we can (indiscernible) provision, mentoring, training, all those kind of things, and set standards of performance for the private defense (indiscernible). But the way it’s being done is it’s kind of being dumped on us right now. The budget for it is not enough. The rates have not been increased. There is no provision for us to have a separate budget for indigent defense. And those are all kind of things that we want to have in place before we take it over.

So right now, we’re trying to stall it another year. We’re trying to bring up (indiscernible). I’m appointed by the governor. And we’re trying to get out from a more independent system in the commission together to give us some insulation. In the last three years, since I became public defender, we’ve become much more aggressive legislative-wise. And (indiscernible) happening with (indiscernible) have been on different sides of the fence on a judicial issue, like expungement laws and those kinds of things.

And we have one newspaper in town. They write nasty editorials now about the public defender’s office. At least, they know exist now, but . . . (laughter) But it’s usually nasty. So those are some of the things that we have going on.

Some of the good things we’ve done in the last couple of years in terms of being -- improving the right to counsel is in our felony division. Routinely, the trial calls would have us sometimes having our lawyers have eight or nine cases, on a weekly basis, being called for (indiscernible) for trial. And we found that that was just impossible for any lawyer to be ready on eight or nine cases at one time.

So we reduced the number of cases that we would permit our lawyers to call ready. And we notified the court that other than only having three cases ready at a time on any trial calendar -- and the trial calendars are continuous, go on forever -- that we were not going (indiscernible) case ready in more than just three on a calendar. And they had to be done in sequence. Routinely, they weren’t on a sequence. They just called the case. It could be number seven. It could be number six. They called at 4:00 in the afternoon. You had to be there at 9:00 in the morning.

Now we’re requiring at least a 48-hour notice when they call us before we’d be ready for trial. We complete a case, or even if the case gets sent to trial and it gets disposed of, we want 48 hours between that case is closed and the next time a lawyer can be reached. And we basically demanded it from the court. We told them if you don’t do this, you don’t accommodate us on this, then we’re going to stop taking cases because right now our family case loads are anywhere between 35 to 40 percent over national standards. And misdemeanors are 150 percent over national standards. So we have the basis to make a case for it. And periodically, just the threat usually brings some kind of result about. Thank you.

Mr. Ross: Thank you. One of the unfortunate themes that we’ve heard in these hearings and again today is what appears to be the abdication by the judiciary of any sense of responsibility for Gideon and the things that come with it.

You’ve given us a couple of examples of things that you’ve done. Do you have some words for the folks as to how we might get the judiciary re-engaged with constitutional rights?

Mr. Hardiman: It’s interesting you say that because the district court judge for those arraignments. He’s a real bully of a guy. And we’ve started having lawyers in his courtroom. And a local law school is writing a law review about this -- Gideon exists in district court. And he became very offended by it. And he’s very heroic. And now he’s decided he’s not going to allow law students to practice in his courtroom anymore. He said, “Why should I do that for them? They’re writing these nasty law review articles.” And he goes, “What’s the name of that case anyway?”

And I said, “You mean the
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