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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НазваниеJonathan 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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Gideon case?”

“Yes, Gideon” -- like he never heard of it before.

What we’ve done -- and one of the things that we’re trying to do, actually yesterday in my absence -- for the superior court judges, we put on a program in terms of trying to show judges about the effect that counsel can have, particularly in the resources that we can reach out in the community and (indiscernible) our facilities and all those kind of things. We had a whole bunch of presenters come in and speak to the judiciary about that -- and the importance of having counsel and having (indiscernible) -- you know, in everybody’s jurisdiction, they want things to be done within a week’s period of time. And sometimes these things take a lot longer than that. We’re trying to show what we’re trying to do when we give them more preparatory time to do it.

And we have already set up a meeting about district court judges in the same process. To try to show just the very fact that right now in those arraignment court rooms in Providence the kind of things we want to do and so many stories that we have done, tremendous stories and the impact on people’s lives. And hopefully, that will motivate judges to understand the need to having counsel there and the kind of services counsel can provide other than just going to trial sometimes.

Mr. Ross: Thank you very much, sir. Now let me call on our next witness. Dennis R. Keefe is the Lancaster County Public Defender from Lincoln, Nebraska, who will tell us about the Midwest in seven minutes.

Dennis R. Keefe: ... Lancaster County Public Defender, Lincoln, Nebraska. I don’t know a lot about the Midwest. I know about my county.

My name is Dennis Keefe. I am the Lancaster County public defender in Lincoln, Nebraska. And I’ve been the elected public defender there for 24 years. And I’ve been involved in two major efforts of the reform of indigent defense services in this state. And in answer to your question, “Is the promise being kept?” I’d say “Kind of.”

We’ve had some successes and some failures. The first major effort that we had started with a study, a first-ever study, of Nebraska’s indigent defense system, which is basically a county system and was totally a county-funded system until 1995. And the study was conducted by the Spangenberg Group back in 1992. And a report with recommendations from a task force came out in 1993.

The findings of the study were not surprising to anybody who was familiar with the system. And the findings are probably no different than the problems that you’ve heard from many people testifying over the past few months before this committee.

The findings were that in 93 counties in Nebraska, there’s a lack of consistency in the delivery of the services, a lack of quality of representation or consistency in quality of representation, availability of litigation resources for defense counsel. [There’s a] a lack of quality -- pardon me -- means to determine who was eligible to do certain types of indigent defense cases. Compensation for court-appointed counsel was inconsistent from county to county. And there were this typical problems of case overload and lack of funding, and lack of funding was inconsistent.

Nebraska is a state of about 1.7 million people, almost half of which live in two larger cities in the eastern part of the state, which makes it a mostly rural state. Not surprisingly, the problems that have developed and caused concern and some drive for reform have come out of capital cases that have occurred in very small counties.

At the same time that the Spangenberg Group was doing this study back in 1992, there were a couple of counties in Nebraska that were suffering huge economic problems because of some major capital cases that were occurring. That kind of set the stage for the funding of the major recommendation of the 1992 task force. And that was the establishment of a commission on public advocacy. This was significant because it was the first time that the state of Nebraska had put any money forward for indigent defense even though it was a very small amount relatively.

But the commission consisted of nine members appointed by the governor on the recommendation from the criminal defense lawyers and the state bar association. As the task force envisioned it and as the original legislation envisioned it, this commission was going to solve more problems than just representation of individuals in rural counties in capital cases. This commission was going to also set policy and guidelines and standards for the operation of the county systems and was going to provide some consistency in funding for the county systems.

Because of a variety of local political problems during the debate over the bill, the policy making issues were -- or part of the commission was taken away from them, which left the commission, in essence, as an entity which appointed a chief counsel. And it is now an agency of six attorneys who provide very high quality legal work in capital cases in this state. And this has solved the problem in some of the capital cases in rural counties of inadequate representation. So I consider that a success. However, the issues that haven’t been addressed are the inadequacies and inconsistencies and funding and caseload overload in the rural counties. Each of which can select -- with only certain limitations -- what type of system they want, whether it be an elected public defender system, a contract system or an assigned counsel system.

And interestingly, when I was getting ready to prepare testimony for you today, I had a conversation with a former deputy in my office who had become the elected public defender in a small rural county of about 35,000 people, who is probably, today or next week, starting a very serious capital murder case in his county. And the conversation with him -- it really demonstrates how far we have not come in overall services (indiscernible).

Number one, before this homicide case occurred, he had experienced the 28 percent increase in felony case loads in his county. And he had gone to his commissioners and said that he needed additional funding and he needed an additional staff person. There were only two lawyers handling 1,200 cases, everything from capital murder to juvenile and child-support (indiscernible). The county board chairman, basically, told him that they didn’t need a lot of public defenders running around the county.

The very next month -- this case involved five co-defendants and the deaths of five people in a bank robbery in this small, rural community. It made national news and, needless to say, caused enormous emotional and economic damage in the local community. The public defender was appointed to represent the most serious, if there can be such a thing, of the five cases and the five people involved and then private attorneys who were appointed in the other cases. The public defender went back to his county board and said, “Not only do I need the additional lawyer for the cases to catch up, but the money that I will be required to take care of this case is going to be significant.”

Over the course of the year while this case was pending, he went back at least four times to the county board, requesting additional funding. And on no occasion did they give him additional funding. And they said, “If you need something, let us know -- after it’s done.”

To make matters worse, the local prosecutor basically was uncooperative and unsympathetic to the public defender’s plight and undercut him with his county board. Only a month before -- I’m sorry -- only three months before this case was going to trial, the public defender finally decided he and his only deputy, full-time deputy, would have to start refusing cases. And as everybody knows, that’s what the national standards recommend you do if you are overloaded.

And they are three months away from getting ready to try a very serious case. And they began refusing cases. And one favorable thing, the local judiciary supported them in that effort and began assigning the cases to private attorneys. But he, the public defender, is being threatened with everything from a free-call elections to unknown law suits because of the actions that he’s taken in that. So he has that to worry about on top of defending a client who is on trial for his life.

The second effort that we tried to get in place was in standards, similar to the Indiana project. And it is in place. And the standards are written. And the money fell out because of the economic situation. My own personal belief that the standards project is probably something that could have had an impact on this particular case that we are talking about. And I use it only as an example of what’s happening. I don’t think that we have come that far with regard to some of the rural county public defender programs.

I’ll stop there.

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

Ms. Jones: I guess just one question. And that is sort of where do you go from here. I mean you have the standards in place, similar to the Indiana model, no money behind it. Any efforts to get that project funded?

Mr. Keefe: Yes. We never stop. We recently had the state supreme court in Nebraska and the state bar association jointly fund a minority and justice task force report. And I pushed for implementation of this standards project in that direction because the issue of adequate, quality representation -- quality representation for indigents is very important in that aspect. And the task force adopted that. And they are now looking for funding to test a pilot project with these standards and then kind of bide our time until the economic condition of the state improves.

That’s it.

Mr. Ross: Our next witness is Simmie Baer, who is the attorney supervisor, juvenile division, the Defender Association here in Seattle, Washington. And she will have 15 minutes to present the situation that she is supervising.

Simmie Baer: ...Attorney Supervisor, Juvenile Division, Defender Association, Seattle, Washington. I don’t get until 2:46?

Mr. Ross: Not in my life.

(laughter)

Ms. Baer: Thank you. I feel like I’m channeling Patty Pyretz (phonetic). And for all of you that know her, it’s a very good feeling. (laughter)

As my juvenile clients would say to me, here to talk about the national state of juvenile justice, “It sucks.” And . . .

Mr. Ross: That’s a term of art?

Ms. Baer: They tell me that. I don’t know how to say it in Latin, but I’ll figure it out. (laughter)

A couple of years ago, I went to Lithuania on the Sealy Project. And the attorney that had been working in Lithuania for two years told the prosecutors and the judges there they had one more conference. What would they like the conference to be about? And they said “juvenile justice.”

So they put together a group of people from here to take over there to talk about juvenile justice. And actually, the attorney that was in Lithuania never considered taking over a defense attorney because the majority of the people involved in Sealy projects, at least in Lithuania, were prosecutors and judges because it was mainly about how to deal with corruption in these developing democracies. And kids don’t do corrupt things.

But I don’t think that’s why it was an after thought. Anyway, the prosecutor and the judge said, “I think you need a defense attorney also.” And they asked me if I would go, and I did go. And it was extremely worthwhile.

In a country that has been oppressed by many other countries for many years and had finally gained independence, they were ready to take on a changed, and a new, juvenile justice system. And they wanted to know what to do and some guidance.

The prosecutor got up and talked about, “This is a great opportunity. Do what we do. Keep only the good kids in the juvenile justice system. And put all the bad ones in the adult system automatically.” And he drew a diagram of how they do that and how everybody over 15 goes to the adult system.

There was a lot of rustling in the audience. There were about 150 prosecutors and judges. And, you know, they had their simultaneous translation ears on. And they were talking really loud over the prosecutor. And I thought, “Oh, God. I’m going to go up there next.”

And so I wasn’t sure what was going on. So when I went up, I said, “I do have a planned outline, but I just have to say right now, ‘Do not do anything that prosecutor told you to do.’ “ (laughter) I said, “I’ve been here for nine days. I’ve visited your monuments to freedom. And I’ve gone to your genocide museum. And I know -- I can feel -- that the last voice you want to oppress is the voice of a child.”

And they stood up and clapped and went wild. (laughter) And I said the way you can do that is to create a holistic, interdisciplinary, juvenile justice system. And this is how you do it. You make sure you have social workers. You make sure you have qualified defense attorneys. You make sure you have investigators. And you try to peel away what causes these young people to offend. If you are only dealing with a criminal matter, you will never adequately be providing rehabilitation. And so to be a good juvenile advocate, you have to be more than a great criminal defense attorney.

And I visited, as I said, the genocide museum. And what’s interesting about that is that’s the building where the KGB housed and tortured all the dissidents, the young dissidents and their families and (indiscernible). And the appellate court sits right on top of it. It’s the perfect juxtaposition of justice in oppression. It really makes you understand that they are the flip side of each other. And if you are oppressing anyone, then there is no justice. And if there is justice, then there won’t be oppression.

And in the juvenile justice system, we require more of children than we are willing to provide them. And we’ve got them caught in this quagmire of laws that is impossible to comprehend. We completely legislate their lives. You can’t smoke. You can’t drink. You can’t marry. You can’t go in the military. You can’t vote. But you step outside that line and commit a crime, we are going to impugn adult culpability to you like that. You are mature. You made an adult decision. All of those things just come like that.

We are very lucky now that the hard science is coming out in a way we need it to come out about juvenile and adolescent brains. We all have known this. All of our soft scientists, our psychologist Dr. Marty Beyer, who I work with -- on a weekly basis, I make her come to Seattle. We all get it. But we are finally getting the hard science that says, “Those adolescent brains that you think are making those intelligent decisions when they commit crimes and they are thinking about it and acting on it and planning it.”

You are so wrong. Those brains -- and I am not a scientist and all members of my families are doctors. And that’s why I cannot talk about science. (laughter) I make sure I couldn’t. And I went into law. But I do know, basically, that juvenile brains do not mature, at least what the science is saying now, until perhaps age 21. And they are finding that they are coded with this gray sheathing. And they don’t even start bolting -- or their brains don’t even start (indiscernible) or shedding until they are probably 18. I still fight to keep 18-year-olds in the juvenile detention facility here that are still under juvenile court jurisdiction. I won’t let them go. I do not agree that the 16- and 17-year-olds we should give up on because the legislature has said they are adults. I think we have to fight for them all.

But as I said, as least the hard science is going our way and more and more every year. And we can bring in those experts. And so when look at what the assessments are showing us on a national scale, as my client says, “It sucks.” But let’s look at each area individually, such as waiver. And I know you mentioned that kids waive their right to counsel all the time. And it happens everywhere. It doesn’t happen in King County at all here, but it happens throughout Washington state, which was what our assessment showed.
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