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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And once everybody was back in the room, the judge came back on the bench. They called the cases. The defendant came forward with the assistant prosecutor, who informed the court that he had discussion with the defendant. The defendant has indicated that he wanted to plea, that he had actually done -- these were really minor misdemeanors, but they were jail (indiscernible) -- “And your honor, may I give you this waiver of counsel.” This is before any screening has been done whatsoever.

There are a couple of states right now where, frankly, public defenders have, I think, taken the wrong-headed position in some of these cases. But I think it’s a very serious problem.

The good thing that happened in Georgia was that the local lawyer who noticed this going on, a private lawyer, a private criminal lawyer, wrote to the Bar Council, the Georgia State Bar. And asked whether or not this -- and gave a set, gave the history, the facts that were going on -- and asked whether or not he believed that that was a violation of any ethical problems with the prosecution.

And the Bar Council wrote back -- and I have the letter, will be happy to share it with you -- and, basically, said he could not rule, of course, on any particular case without all the facts. But if, in fact, what was going on was as described in this letter, then, he said, the prosecutors are daily violating Rule 4.3A and 3.B.

And those two rules are one, that prosecutors shall not talk to any defendant who is not represented by counsel and two, prosecutors should not do anything to interfere with the appointment of counsel other than to encourage the defendant to seek counsel. And those are ABA rules and commentary. And I think the time has come for all of us to, with our brethren prosecutors, is to -- and this doesn’t occur every place. Believe me, it does not occur every place. I have a lot of respect for a number of prosecutors that we come in contact with.

But where it does exist -- and we have seen it -- to me, it’s up to us. It’s up to the Bar. It’s up to the organized Bar. It’s up to all of our lawyers to raise this issue. It’s called “prosecutor getting in the way.” That’s what I call it.

Thank you.

Mr. Ross: Thank you, Bob. Do any of you have similar experiences?

Male Voice: (inaudible)

Mr. Ross: Dennis.

Dennis Keefe: ...Lancaster County Public Defender, Lincoln, Nebraska: The capital case I was telling you about has. . .

Mr. Ross: This is Dennis Keefe . . .

Mr. Keefe: . . . this very feature in it.

Mr. Ross: Just give us your name for the record.

Mr. Keefe: I’m sorry. This is Dennis Keefe, Lancaster County Public Defender.

The capital case I was speaking about earlier has this very issue in it. And what happened in this case, when these five people were arrested for capital murder and before counsel was appointed, the local county attorney prosecutor met with the judge and urged the judge not to involve the Commission on Public Advocacy because they are just not that good. He just didn’t want to be confronted with good lawyers. And he suggested names of local counsel that he thought might work well in these cases.

And when we heard about this, we thought, “Well, why would this judge be participating in this?” So we took the issue to the legislature with a bill, basically, saying that the prosecutor shall have no role whatsoever in suggesting or appointing counsel or in mentioning anything about who should or shouldn’t be appointed. And the chair of the judiciary committee said that this seemed so self-evident. And we said we thought so too. And it passed so I’m guessing it is not as controversial as you might think in some states.

Female Voice: (inaudible)

Mr. Ross: Maybe newly discovered. Do any others of you have things to share with us? Don’t be shy. I’m not going to let you go until 3:00 anyway. The door is locked. (laughter)

Male Voice: Actually, the first time that I told this story about the prosecutor interference was in a panel of the American Bar Association in San Francisco on Gideon -- or where is Gideon going -- one that Norm Lefstein shared with me and Ron Taback (phonetic), who many of you know, and a reporter for the Chicago Tribune, who had much to do with breaking all the stuff about police misconduct. And there was someone else too, Norm. I forgot who it was.

But, guess who was in the audience?

Male Voice: (inaudible)

Male Voice: Justice Kennedy.

Male Voice: (inaudible)

Male Voice: No. He didn’t sleep the whole program.

Female Voice: He stayed.

Male Voice: He stayed for the whole program. (laughter)

Mr. Ross: Strike that. (laughter) Strike it. (laughter) That’s all I ever learned in evidence.

Male Voice: They announced ahead of time that we are all honored to have Justice Kennedy with us. He may have to leave early. And I want you to know that he appreciates everything -- he stayed not only until the panel was over, until all the questioning was over.

And Norm Lefstein -- now, see, note he is not the dean anymore. He’s back to a professor. He is so aggressive on our behalf now, now that he doesn’t have that deanmanship responsibility.

Male Voice: (inaudible)

Male Voice: He even made me embarrassed in some of the things he said, in print (phonetic), of Justice Kennedy. But I told this -- this was my presentation to Justice Kennedy. And afterwards, he wrote us both a nice little note for whatever you can take of that. But . . .

Mr. Ross: Would you just stay there for a minute because Cynthia Jones has a question for you.

Ms. Jones: Bob, we’ve heard from a lot of people in different jurisdictions about having to use sort of mob-like tactics, you know, refusing to take cases and going before the legislature. Has there been any particular tactic -- I know you’ve looked at lots -- that has been effective? Short of federal money. Short of, you know, legislation and a changed political climate. Has there been anything that’s been effective in getting indigent defense services in different states?

Male Voice: Clearly. And I think that the two most recent cases are Texas and Georgia. Georgia, as you may know, has just passed -- this last session just passed a wonderful new bill, creating a whole new indigent defense system in Georgia with the state commission and state money.

And Texas, three years ago, created a new system. And I have to tell you that what’s going on in Texas now is pretty remarkable on the positive side.

Now if we could go back into the history of the last 15 years in those two states and figure out -- well, what happened? Why did things change? It’s really hard to explain. But it has to do with people -- first of all, if there is no one on the ground, nobody can do anything. We can help if the people are on the ground and motivated and willing to move. But you have to fight like hell. You have to have people who are -- you have to have bomb throwers on the one side, rational people like myself (laughter) on the other side. (laughter) And hammer, you know, hammer from all directions.

And you can never give up. Never give up. We had so many times working states at the end -- Mississippi is a good example. At the end of the line, nothing happens. And you go home. People are feeling awful and so forth. You can’t give up. You’ve got to come back and try it again. What can we do this time?

But I think we have enough examples, even in the climate that we are in now. And some of you know we are working in Virginia right now. This is on the record so I won’t say -- I’m going to give a presentation next Wednesday to the Criminal Commission in Virginia on the status of Virginia, indigent defense. I think it’s going to be pretty -- it’s going to make a lot of people unhappy.

But you’ve got to do it. And you never give up. Ernie, over there, and others never give up. You lose. You win. You get back on your feet. And you fight again. Yes, there is a way. And I don’t think there is any state -- what we hear all the time is, “Well, you don’t understand Virginia. Virginia is unlike any other place in the country. What you can do in Mississippi, you can’t do in Virginia.” And we hear this from Georgia or Texas or whatever. And the answer is it’s all local. And you’ve just got to keep trying and punching away.

Mr. Ross: Thank you, Bob. Anyone else have something for the benefit of the group. Then, it must be 3:00.

Thank you all for coming.

(applause)

[End of Side B. End of transcript.]
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