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 September 19, 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 3 PROFESSOR PAUL KURTZ JUDGE C. ANDREW FULLER 4 MS. PHYLLIS HOLMEN MR. JERRY GRIFFIN 5 REPRESENTATIVE PAUL HOLMES JUDGE A. HARRIS ADAMS 6 JUDGE STANLEY F. BIRCH MS. FLORA DEVINE 7 MR. ROBERT E. KELLER MR. C. WILSON DUBOSE 8 MR. CHARLES T. LESTER, JR. MR. HOWARD O. HUNTER 9 GUESTS PRESENT: 10 CHIEF JUSTICE NORMAN S. FLETCHER 11 MR. JAY B. MARTIN, AOC MS. PHYLLIS BLANTON, AOC 12 MS. TRISHA RENAUD, FULTON DAILY REPORT MR. FRED D. TAYLOR, SCLC/GEJ 13 EMILY W. WARD, BELLSOUTH MS. KENDALL BUTTERWORTH, BELLSOUTH 14 MS. RUTH FIFE, BELLSOUTH MR. MICHAEL B. SHAPIRO, GIDC 15 MR. JIM THOMPSON, BELLSOUTH MS. SARA TOTONCHI, GEORGIANS FOR EQUAL JUSTICE 16 MS. KATE WEISBURD, SOUTHERN CENTER FOR HUMAN RIGHTS 17 MR. ROBERT HOLT, ANTIOCH COLLEGE MR. ALEXANDER RUNDLET, SOUTHERN CENTER FOR HUMAN 18 RIGHTS MS. MARION CHARTOFF, SOUTHERN CENTER FOR HUMAN 19 RIGHTS MR. STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN 20 RIGHTS REVEREND TIM REED 21 MR. LARRY WHITE MR. SAMUEL BURRELL 22 MR. JOHN COLE-VODICKA, PRISON & JAIL PROJECT MS. SANDRA WITTY, HOWE RESEARCH 23 MR. WARREN GOODWIN MS. SARAH SMITH, GIDC 24 MS. AIMEE MAXWELL, GIDC 25 KING COURT REPORTING SERVICE 3 1 GUESTS PRESENT: 2 MR. TOM BOLLER, STATE BAR MS. HELEN ASKEW, OFFICE OF BAR ADMISSIONS 3 MR. BUDDY DARDEN MR. LANCE STEWART, SOUTHERN CENTER FOR HUMAN 4 RIGHTS 5 PRESENTERS: 6 7 OVERVIEW OF THE GEORGIA INDIGENT DEFENSE COUNCIL 8 MR. MICHAEL B. SHAPIRO, EXECUTIVE DIRECTOR, GEORGIA INDIGENT DEFENSE COUNCIL 9 VIDEOTAPE: PERSPECTIVES ON INDIGENT DEFENSE IN 10 GEORGIA 11 MR. C. WILSON DUBOSE 12 MR. WARREN GOODWIN, TECH EDITOR, ATLANTA INDEPENDENT MEDIA CENTER 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. I'd like to 3 convene this meeting for the Indigent Defense 4 Commission. 5 I thank you all for being here. We're going 6 to go around the room and introduce ourselves as 7 we typically do, but before we do that first I 8 would just like to make one remark, and that is I 9 think it's appropriate at this point in time after 10 last week's tragic events in New York that we just 11 take a moment and think about the system of 12 justice that we have in our country, and that it's 13 one of the most important values and things that 14 we have in this country that we're proud of. 15 And so I know I speak for all of the members 16 of the Commission to say that we're very 17 appreciative to the Court for giving us the 18 opportunity to assist the Court in looking at the 19 system of justice in our great state, and we 20 appreciate that, and we take our responsibility 21 very seriously. 22 So with that, again, I'd like to thank 23 everybody for being here and we're very pleased 24 that the Chief Justice is with us this morning, 25 and would like to make a comment. KING COURT REPORTING SERVICE 5 1 CHIEF JUSTICE FLETCHER: Thank you, Charles. 2 I just, once again, want to tell you how much we 3 appreciate your dedication and what you're doing. 4 It's an awesome task, and in order to help you 5 with this we have decided to add a little more 6 person power onto your Commission, and I'm very 7 pleased. 8 I talked with the leadership of the District 9 Attorneys Association and they have sent us a new 10 member that we are all -- most all of us know and 11 we are very thankful that Bob Keller has agreed to 12 serve on the Commission. 13 He is not only an excellent District 14 Attorney, he is a very wise gentleman and he knows 15 things around the Capitol very well, and we 16 appreciate Bob coming on. 17 I've also appointed Bill Lyde, who is the 18 former president of the American Bar, who is now 19 back in Atlanta after having served as general 20 counsel for Monsanto. I think he was the vice 21 president, general counsel there. And Bill was 22 very active in indigent defense studies back in 23 the 1970s, and he has agreed to come on board. 24 We probably may add another person or two 25 also along the way to assist you. Also, I want KING COURT REPORTING SERVICE 6 1 you to know that we understand this is a difficult 2 task and it might take longer than we originally 3 anticipated, and that's fine because the finished 4 product we hope it will be something that not only 5 you will be proud of, but it is something that can 6 be accepted and will be accepted favorably by the 7 trial Judges, by the District Attorneys, by 8 defense counsel, by all those who are interested 9 in indigent defense in this state. 10 And so -- and one other thing. I also want 11 you to know that the Court is going to find the 12 method of providing whatever means of resources 13 that are needed for this Commission, whether it's 14 some outside professional help to help you in 15 gathering data, but we are totally supportive of 16 everything that you're doing, and we're going to 17 find the resources that are necessary to help you 18 do the job that I know you want to do. 19 And so, again, just thank you for what 20 you're doing, and with that I'm going to go to 21 work. 22 CHAIRMAN MORGAN: Thank you very much, 23 Justice. And with that I'd like to start off by 24 what we've typically done as our tradition is to 25 go around and ask the Commission members just to KING COURT REPORTING SERVICE 7 1 briefly introduce themselves and then we'll go 2 around the room and have a brief introduction. 3 And so, Mr. Reporter, if you would start? 4 MR. SHAPIRO: I'm Paul Kurtz. I'm the 5 reporter for the Commission and I'm a member of 6 the faculty of the University of Georgia law 7 school. 8 JUDGE FULLER: I'm Andy Fuller. I'm a trial 9 court Judge out of Hall County and Dawson County 10 Superior Court. 11 MR. KELLER: I'm Bob Keller, and I'm the 12 District Attorney for Clayton County. 13 JUDGE BIRCH: I'm Stan Birch. I'm a Federal 14 Appellate Judge here in Atlanta. 15 MR. HUNTER: I'm Woody Hunter. I'm on the 16 law faculty at Emory and Provost. 17 REPRESENTATIVE HOLMES: I'm Paul Holmes. 18 I'm with the Life of the South and I live in 19 Monticello, Georgia. 20 MR. GRIFFIN: I'm Jerry Griffin, Association 21 of County Commissioners of Georgia. 22 MR. DuBOSE: My name is Wilson DuBose. I'm 23 in private practice in Atlanta with Winkler, 24 DuBose and Davis. 25 CHAIRMAN MORGAN: Why don't we continue over KING COURT REPORTING SERVICE 8 1 here. 2 MS. EDWARDS: I'm Marcy Edwards from the 3 Atlanta Constitution. 4 MR. COLE-VODICKA: I'm John Cole-Vodicka. I 5 live in Americus, Georgia, and I work with the 6 prison and jail population. 7 MS. WITTY: I'm Sandra Witty and I'm at the 8 Georgia House of Representatives research office 9 and our office staff is the appropriations 10 committee. 11 MR. DARDEN: I'm Buddy Darden. I'm an 12 attorney in Atlanta representing the Governor's 13 office pro bono. 14 MR. BOLER: I'm Tom Bollen representing the 15 State Bar. 16 MS. MAXWELL: I'm Aimee Maxwell. I'm 17 director of special education at the Georgia 18 Indigent Defense Council. 19 MR. GOODWIN: I'm Warren Goodwin. I'm with 20 the Atlanta Independent Media Center and I'll be 21 having a video for you to watch. 22 MR. BURRELL: My name is Samuel Burrell. 23 I'm part of the Georgians for Equal Justice System 24 and lots of more. 25 MR. WHITE: Larry White, NAACP. KING COURT REPORTING SERVICE 9 1 MR. REED: Tim Reed, Peoples Agenda. 2 MR. BRIGHT: My name is Stephen Bright, 3 Southern Center for Human Rights here in Atlanta. 4 MS. CHARTOFF: Marion Chartoff, Southern 5 Center for Human Rights. 6 MR. RUNDLET: I'm Alexander Rundlet, 7 Southern Center for Human Rights. 8 MS. WEISBOURD: Kate Weisbourd, Southern 9 Center for Human Rights. 10 MR. THOMPSON: Jim Thompson, attorney with 11 BellSouth Corporation. 12 MS. FIFE: I'm Ruth Fife, also attorney with 13 BellSouth. 14 MS. BUTTERWORTH: I'm Kendall Butterworth 15 and I'm an attorney with BellSouth. 16 MS. WARD: Emily Ward presently with 17 BellSouth. 18 MR. TAYLOR: I am Fred D. Taylor with the 19 Southern Christian Leadership Conference. I am 20 the SCLC representative with the Coalition for 21 Georgians for Equal Justice. 22 MR. HOLT: Bobby Holt, Southern Center for 23 Legal Justice. 24 MR. MARTIN: I'm Jay Martin, Deputy Director 25 of Administrative Office of the Courts. KING COURT REPORTING SERVICE 10 1 MR. SHAPIRO: I'm Mike Shapiro, Executive 2 Director, Georgia Indigent Defense Council. 3 MS. BLANTON: Phyllis Blanton, 4 Administrative Office of the Courts. 5 Joe Biggs, Antioch Baptist Church, Rainbow 6 Christian Coalition. 7 CHAIRMAN MORGAN: Thank you very much, 8 everyone. And I think Mr. Martin had a couple of 9 administrative announcements for us. 10 MR. JAY MARTIN: Yes. Obviously, with the 11 security that we have increased in the building, 12 one of the things -- a couple of things that we 13 need to do administratively is we need to stay out 14 of the Supreme Court clerk's area, which is that 15 door over there, and when you come the next time 16 we have these meetings you want to come through 17 the judicial building, through the security up to 18 this floor, through the crossover into this area. 19 Also, the restrooms are in the judicial 20 building on the fifth and sixth floor, not back 21 through the clerk's office, which is really kind 22 of off limits for now. Thank you. 23 CHAIRMAN MORGAN: I might also say that we 24 have had one meeting at another location at the 25 Carter Center and if anyone on the Commission or KING COURT REPORTING SERVICE 11 1 guests have suggestions or ideas about other 2 venues we would be happy to entertain that. 3 I think there is a possibility that we may 4 be going back, for example, to the Carter Center 5 sometime for one of our future meetings. 6 Are there any other announcements by any 7 member of the Commission before we get started? 8 All right, then. 9 Well, I'm pleased to introduce Michael 10 Shapiro again, and Michael is the Executive 11 Director of the Georgia Indigent Defense Council. 12 And Michael, we appreciate your being here. We 13 look forward to your remarks. 14 MR. SHAPIRO: Thank you, Charles. Good 15 morning and thank you for inviting me back. I've 16 prepared a short Power Point presentation, and 17 lawyers don't know what short is. We admit that 18 we don't know what these truly are. 19 Charles and Kendall asked me to give you a 20 history of the indigent defense programs in 21 Georgia, and also the status on where we are now, 22 and a little taste of where we might be headed. 23 I'm going to build on the materials that 24 y'all got back in February when you were kind 25 enough to let me speak and give you a foundation KING COURT REPORTING SERVICE 12 1 of indigent defense in Georgia. 2 Currently, the state's leading organization 3 on indigent defense is the Indigent Defense 4 Council. Flora Devine, who is on the Commission, 5 is our chairperson. She is one of 10 attorneys. 6 There are attorneys selected from each of the ten 7 judicial administrative districts. 8 We have three non-lawyers selected from the 9 state at large, and there are two representatives 10 of County Commissioners. One from the 11 metropolitan area and one from a non-metropolitan 12 area, and that is set with George Cole. 13 I've given you a list of who the counsel 14 members are and the districts that they're from. 15 We are fortunate to have two Judges, two members 16 of the State Bar's Board of Commission -- I'm 17 sorry, Board of Governors, we have the past 18 chairperson of the State Bar's criminal law 19 section, a wide variety of people. Faculty at 20 Kennesaw State University and Emory University. 21 It's a very good mix of folks. 22 Indigent defense in Georgia prior to 1968 23 was very haphazard. In '68 the Criminal Justice 24 Act was passed. It required the Courts to provide 25 indigent representation. Provided the Courts -- KING COURT REPORTING SERVICE 13 1 required the Courts to set up compensation and to 2 approve expenses. Let the Courts determine the 3 competence of counsel after they were assigned, 4 and mandated that the counties budget for indigent 5 defense. 6 This is the first time that Georgia 7 legislatively declared that it is the county's 8 responsibility as opposed to the state's 9 responsibility. Of course, this was five years 10 after Gideon vs. Wainwright. 11 Some 11 years later the Indigent Defense Act 12 of 1979 was passed. It created the Indigent 13 Defense Council. It declared that it was a policy 14 of the state. In 17-12-31 it declared more than a 15 dozen different aspects of the state policy to 16 provide the constitutional guarantees of the 17 rights of counsel and equal access to the Court. 18 Adequate defense services, adequate 19 compensation, guidelines, and flexibility within 20 them, local responsibility to provide fair and 21 adequate defense, independence of counsel, 22 training, recovery of public funds when people 23 improperly got counsel, equitable distribution of 24 funds, that the state be responsible for funding 25 the indigent defense system established within the KING COURT REPORTING SERVICE 14 1 article, development and control of local 2 tripartite programs, reasonably early entry and, 3 finally, where feasible, to use local members of 4 the bar. 5 Twenty-two years later this is still the 6 system we're using. Council was created in '79. 7 It did not receive its first funding until 1989. 8 That was $1 million and it was both, for our 9 operations and to provide funding to the counties. 10 Currently we receive $5.39 million from the 11 state strictly for the counties. We receive 12 $1,032,000 to fund the death penalty division, and 13 we receive Georgia Bar Foundation or IOTA funds, 14 interest on lawyers trust account funds that funds 15 the rest of the operation. The other six 16 divisions for counsel. 17 Also, in 1989 the Supreme Court created the 18 the "Guidelines." The Guidelines cover about 15 19 or 16 pages. They were provided to you in the 20 books that you first got when the commission was 21 formed. If you need another copy we'll be happy 22 to provide them for you. And much of this 23 information is available on our Web site, GIDC 24 dot-com. 25 But the guidelines were created in 1989 as KING COURT REPORTING SERVICE 15 1 originally contemplated in the Indigent Defense 2 Act of 1979, and the act itself specifies how 3 those guidelines are created. 4 There seemed to be some confusion last month 5 when one of the people who spoke said that there 6 were regulation changes many, many times. In 7 fact, the guidelines -- I'm sorry, the Indigent 8 Defense Act has only been modified a handful of 9 times and mostly clerical stuff. 10 But in 1992 probably the most significant 11 change was that the multi-county public defender 12 office, our death penalty division was created, 13 and they are, in fact, our largest division. They 14 comprise fully one-third of our staff and their 15 budget is at least one-third of our budget. 16 We represent Defendants all over the state. 17 We track every single death penalty case whether 18 it's at the trial or post-conviction level, and we 19 assist attorneys all over Georgia in death 20 penalty. 21 In 1993 the council was increased to the 15 22 members that are on it now. Originally County 23 Commissioners were not on it. I'm sure that 24 offended Jerry. And so a non-metropolitan and 25 metropolitan area council member were added. KING COURT REPORTING SERVICE 16 1 In 1993 a second way of funding was created. 2 Originally when the Indigent Defense Act was 3 created there was only one way to fund a county, 4 and that was if they had a tripartite committee. 5 A tripartite committee is made up of equal 6 representatives of Superior Court Judges, the 7 County Commission, and the local bar association. 8 And it can be multiples of three. It can be three 9 in some cases in the state. There are six 10 members. The tripartite committee was the only 11 way that we could fund. 12 In 1993 the code was changed to allow the 13 Indigent Defense Council, at the request of the 14 majority of the Superior Court Judges in any 15 circuit, and including the Chief Judge of that 16 circuit, to fund a pilot project that we 17 administered. 18 And, in fact, that was the way that Fulton 19 County was funded for several years. It was the 20 only way Fulton County could have been funded 21 because they did not have a tripartite committee. 22 Also, in 1993 tripartite committees were 23 allowed to exceed themselves. In the past they 24 had only been allowed to sit for one term. 25 In 1994 the code was clarified by adding KING COURT REPORTING SERVICE 17 1 17-12-38.1. It specifies the types of cases where 2 counsel is supposed to be provided. All felony 3 cases, those misdemeanor cases where indigents are 4 guaranteed the right to counsel in all actions, 5 and it describes delinquencies, deprivations, 6 terminations, and so on within the juvenile 7 courts. Finally, in 1996 our Mental Health 8 Advocacy Division was added by the legislature. 9 We talked a little bit earlier about the 10 guidelines. The guidelines cover seven different 11 areas: The availability of counsel; structure of 12 the local programs; that competent and effective 13 counsel be provided; the funding and how we 14 distribute the funding; physical management within 15 the local programs; caseload control, and then 16 finally, standards of performance which have been 17 reserved. They have never been adopted. 18 This is the code section that talks about 19 how the guidelines are adopted or modified. It 20 says that they are to be proposed by the Indigent 21 Defense Council to the Supreme Court, and that we 22 are supposed to invite suggestions from the State 23 Bar, the Council of Superior Court Judges, the 24 Council of Juvenile Court Judges, the State Court 25 Judges, and the Prosecuting Attorneys' Council. KING COURT REPORTING SERVICE 18 1 It's the only time that I'm aware of in the 2 code where one agency or one group has to ask its 3 counterpart, its opposite member if you will, for 4 advice and suggestions. 5 In practice, what the council has done is 6 the staff where the council recommends a 7 modification, that modification is taken up at a 8 quarterly council meeting. If approved by the 9 council it is then sent out verbatim to the 10 directors of the bar, the three Judges councils, 11 and to the Prosecuting Attorneys' Council. 12 We wait for a notice and comment period of 13 90 days, if you will, and the issue is taken back 14 up at the next regularly scheduled Indigent 15 Defense Council meeting. If negative comments 16 have not been received and the council decides to 17 go forward it is then approved to be passed on to 18 the Supreme Court for their consideration, and 19 that is the practice that we have always done. 20 MR. KURTZ: Michael, how often, off the top 21 of your head, or maybe written on paper, how often 22 has that happened? 23 MR. SHAPIRO: Four times. 24 MR. KURTZ: Okay. 25 MR. SHAPIRO: But thank you, Paul. I need KING COURT REPORTING SERVICE 19 1 it straight, man. I really do. Four times, and I 2 was a little bemused when I heard last month that 3 we constantly change our regulations. 4 In fact, my knowledge of the research -- 5 I've only been with the council for five and a 6 half years, but as far as I can tell the 7 guidelines have only been changed four times and 8 the last time it was changed was almost two years 9 ago. 10 And the last time -- what I've done is 11 reverse chronological order. These are the most 12 current. There were three changes made in 13 November of 1999, and it was following a committee 14 that included Judges, both State and Superior 15 Court, County Commissioners, county attorneys, 16 three members from the Attorney General's office. 17 Mr. Martin, who testified here last month 18 represented the District Courts, administrators, 19 and the council of Superior Court Judges on the 20 committee. 21 Mr. Mear, who is the head of our death 22 penalty division, that I was fortunate enough to 23 be on, it was chaired by Justice Hunstein. And 24 I'm sure that I've forgotten some people, but 25 there were probably 15 or 18 people on the KING COURT REPORTING SERVICE 20 1 committee. 2 And that committee considered a number of 3 things and made three specific recommendations to 4 the Court. One, to eliminate fee caps entirely. 5 They had been amended about eight months before, 6 but fee caps were out of date. Leave it to the 7 sound discretion of the program or, if necessary, 8 to the Court on what the fees should be. 9 That fees in death penalty cases should be 10 higher than the rate provided in Guideline 2.6 11 that's currently $45 an hour out of court, $60 an 12 hour in court. 13 Now, the Supreme Court didn't specify how 14 high those fees should be, but clearly death 15 penalty cases warrant a higher fee. 16 And the third part was that attorneys 17 working on an hourly basis must submit itemized 18 bills specifying their work on a case, and if that 19 bill is reduced, whether it be by an independent 20 defense administrator, the tripartite committee, 21 or the Court, that the reduction be similarly 22 itemized. 23 JUDGE BIRCH: Did the guidelines provide for 24 -- you're talking about caps here -- minimum fees 25 for the organization? KING COURT REPORTING SERVICE 21 1 MR. SHAPIRO: Not in a flat flee setting. 2 The guidelines provide for minimum fees in an 3 hourly setting. 4 JUDGE BIRCH: Yeah, that's what I thought. 5 MR. SHAPIRO: Yeah. And one of the things 6 that the committee considered, I think it was 7 Judge Crey from down in Henry County, said that 8 they have a hybrid program. They have a flat flee 9 arrangement until the case goes beyond 10 arraignment. 11 If it's going to be tried then it moves to 12 an hourly basis, and he thought that the flat fee 13 arrangement protected attorneys in cases that 14 didn't require a tremendous amount of time because 15 there was a threshold on the fee. 16 And there were some on the committee that 17 were advocating to explicitly abolish flat fees. 18 The committee decided not to do that. So that was 19 the last change. It was November two years ago. 20 Prior to that Guideline 2.6 had been 21 changed. Two parts to it. One of which is now 22 absolete, and that is the adjustment of the fee 23 caps. It moved $35 an hour out of court up to 24 $45. And $45 an hour in court up to $60 an hour. 25 The numbers had not been changed since 1989. KING COURT REPORTING SERVICE 22 1 And so here it was 10 years later finally 2 catching up and all it did was catch up for 3 inflation. Probably not even if you look at the 4 numbers. Before that in October of '98 a change 5 had been made to benefit the county. In the past 6 the guidelines had required them to provide 7 statistics three times a year. In the practice we 8 had only been asking for them once with the 9 funding application. And so this was a 10 housekeeping provision. 11 And then the time before that -- I'm sorry, 12 in addition to that the caseload controls were 13 specified. Originally the guidelines had talked 14 about using the American Bar Association's 15 standards for providing defense services, and 16 those are the standards that have caseload 17 limitations in them. 18 A full-time public defender should handle no 19 more than 150 felonies, or 300 misdemeanors, or 25 20 appeals, or 60 we would call them juvenile 21 terminations, termination of parental rights, or 22 250 juvenile delinquency cases per year. The 23 guideline had referenced it but never spelled it 24 out. 25 The current version of 6.1 recommends those KING COURT REPORTING SERVICE 23 1 explicitly, but also talks about ways that the 2 county might have a program where an attorney's 3 caseload exceeds those numbers. 4 If the District Attorney has an open file 5 policy, the District Attorney routinely enters 6 into negotiated pleas. If there is adequate 7 support staff including investigators and 8 paraprofessionals. 9 Prior to that in 1997 was the first time 10 that I'm aware that the guidelines had been 11 modified since they were originally created in 12 '89. 13 The first thing was we linked up with the 14 Department of Health and Human services poverty 15 standards. The federal poverty threshold. 16 The guidelines had had a limit of $500 and 17 it had never been changed. The process of 18 changing the guidelines is somewhat cumbersome. 19 You heard me talk about how the council considers 20 it. We send it out to five different 21 organizations for notice and comment. The council 22 considers it again. And then it goes into the 23 Supreme Court. 24 It seemed logical to tie in to the federal 25 poverty levels and that's what we've done, and KING COURT REPORTING SERVICE 24 1 currently that number is approximately $725 a 2 month. 3 CHAIRMAN MORGAN: Mike. 4 MR. SHAPIRO: Yes, Charles. 5 CHAIRMAN MORGAN: Mike, I don't want to take 6 up too much of your program, but in terms of 7 caseload. Are you aware of situations in the 8 State of Georgia where attorneys are substantially 9 above the guidelines such that, in your view, the 10 quality of representation is impacted? 11 MR. SHAPIRO: Yes, sir. 12 CHAIRMAN MORGAN: And how does the 13 Commission look at that issue? 14 MR. SHAPIRO: We are aware of situations 15 where attorneys are at twice and in some cases 16 approaching three times the recommended caseload. 17 It cannot have any other possible 18 consequence for impacting their ability to 19 adequately represent the people. In some cases 20 those attorneys are working in more than one 21 county. 22 We are aware of a situation where a father 23 and son team now with the assistance, I think, of 24 the daughter-in-law are handling cases in five 25 counties, and a caseload approach often exceeds KING COURT REPORTING SERVICE 25 1 800 cases a year. 2 In prior years before the daughther-in-law 3 came into the program the father and son handled 4 about 825 cases across those five counties in one 5 single year, and they claim that their indigent 6 defense representation is only one half of their 7 practice. 8 Case loads are a problem. And I'm not 9 saying that when you hit 151 cases, or 150 you can 10 close the door and you can't take the 150 first. 11 By the same token we need to be mindful that 12 nobody can handle a caseload much in excess of 13 that and do it adequately, and where that number 14 is, where that shut-off point is, I don't know. I 15 wouldn't profess to know. 16 Later on in the materials and some of the 17 handouts that Sarah has prepared for y'all we have 18 given out a monograph last month that Bob 19 Spangenberg had written for the Department of 20 Justice. 21 There are 15 states that have caseload 22 standards, and Georgia fits right in the middle of 23 those. Our numbers are not out of whack in either 24 direction. They're not very high, they're not 25 very low, and by adopting the ABA standards we KING COURT REPORTING SERVICE 26 1 thought that we were using the national standards. 2 CHAIRMAN MORGAN: You're saying that the 3 practice is in that range or our guidelines are in 4 that range? 5 MR. SHAPIRO: Our guidelines are within the 6 norm; that the 150 felonies -- some states have 7 higher or lower because they have different 8 classes of felonies. 9 For example, in New York I think they have A 10 through F with F being close to what we would 11 consider a high and aggravated misdemeanor. And 12 so if you're handling cases like that New York 13 says that you can handle more. 14 CHAIRMAN MORGAN: Just a follow-up and then 15 Judge Birch has a question, but just a follow-up 16 first. 17 MR. SHAPIRO: Sure. 18 CHAIRMAN MORGAN: Any thoughts or advice for 19 the Commission? How do we go about looking at 20 this, getting a handling on the question of 21 caseload, and whether that has a negative impact? 22 MR. SHAPIRO: I wish there were an easy 23 answer, Charles. Caseload has to have an impact. 24 There are many things that are affecting indigent 25 defense in Georgia. A lack of competent -- enough KING COURT REPORTING SERVICE 27 1 competent attorneys. 2 There are several wonderful, hundreds of 3 wonderful attorneys in the state. The problem is 4 there were 169,000 indigent cases last year. We 5 need expert witnesses. We need access to them. 6 We need training. 7 The Indigent Defense Council on professional 8 education division hosts more seminars on criminal 9 law and juvenile law than all of the other 10 providers combined, and we do it typically at $25 11 a session because we want you to be trained. 12 But any attorney. Clarence Darryl can't 13 handle a caseload of 350 cases. It's just not 14 possible. What that mile marker is, how we 15 approach that mile marker, I don't know. 16 Flora was in a meeting, and maybe some 17 others in this room, about a year and a half ago 18 where the Chief Justice looked me dead in the eye 19 and said, "Caseload guidelines are aspirational." 20 That's not the way they were written. They were 21 written as recommendations, but I don't know 22 whether they have any meaning. 23 CHAIRMAN MORGAN: But the thing that, it 24 seems to me, that the Commission has to get at is 25 this anecdotal. Are there two cases, two KING COURT REPORTING SERVICE 28 1 instances in Georgia where there is two lawyers 2 who are way above the case law, or are there a lot 3 all over the state? I mean, it seems to me that's 4 what the Commission -- one of the things that the 5 Commission has to try to get a grip on. 6 MR. SHAPIRO: Two years ago I wrote to 7 approximately 35 counties. Every county that was 8 serviced by a public defender office and 9 approximately 15 counties that were serviced by a 10 contract defenders because their caseloads were 11 twice the recommended allowance. It's a big 12 problem. 13 CHAIRMAN MORGAN: Judge. 14 JUDGE BIRCH: Let me drop back a minute and 15 ask you a little more fundamental sort of thing. 16 This on a county-by-county basis that they 17 receive funds if they -- help me with the basic 18 thing. 19 MR. SHAPIRO: Sure. 20 JUDGE BIRCH: As I understand it, you all 21 were set up. You got these guidelines. I 22 understand there are certain counties in Georgia 23 that just don't participate. 24 MR. SHAPIRO: Currently there are seven 25 counties that have elected not to apply for funds. KING COURT REPORTING SERVICE 29 1 We have reached -- the highest number that we've 2 ever had this year. 152 counties are receiving 3 funding and they will get approximately $7 million 4 from this. 5 JUDGE BIRCH: $7 million for all of the 152 6 counties? 7 MR. SHAPIRO: Correct. And those 152 8 counties spent approximately $49 million. 9 JUDGE BIRCH: And so it's a drop in their 10 bucket, so to speak. As I understand it what they 11 have to agree to -- do they have to agree to abide 12 by the guidelines? 13 MR. SHAPIRO: That's what the code says. 14 JUDGE BIRCH: If they get the funds? It's a 15 carrot stick sort of thing? 16 MR. SHAPIRO: Yes. 17 JUDGE BIRCH: And then you all are supposed 18 to monitor that? 19 MR. SHAPIRO: Yes. 20 JUDGE BIRCH: Are there statistical 21 requirements that they're supposed to provide you 22 again, or is that a once a year statistical thing? 23 MR. SHAPIRO: Yes. What we do is we use the 24 funding application information as our sole source 25 of data gathering other than complaints that we KING COURT REPORTING SERVICE 30 1 get from local attorneys, or Defendants, or people 2 who happen to be in court. And that's why it's 3 critical for us to have complete funding 4 applications. 5 JUDGE BIRCH: And so there is a body of data 6 that could be looked at, at least based on what -- 7 how many counties get funds who don't report? 8 MR. SHAPIRO: If they don't report they 9 can't get the funds. 10 JUDGE BIRCH: For the next year? 11 MR. SHAPIRO: Correct. 12 JUDGE BIRCH: So at least you get that 13 that's working fairly well. The quality of the 14 reports, I guess, vary. 15 MR. SHAPIRO: Quality of the reports varies. 16 There are some counties that have said they only 17 want to give us population caseload and 18 expenditure information, which is the three 19 variables of the formula that we use and the code 20 provides for it to distribute funds. 21 Obviously, if we're going to plan for the 22 future of indigent defense we need much more 23 information than just that. 24 JUDGE BIRCH: Do you all keep any kind of 25 statistical data on ineffective assistance claims KING COURT REPORTING SERVICE 31 1 that are granted, or denied, or made? 2 MR. SHAPIRO: Yes. 3 JUDGE BIRCH: Okay. 4 MR. KURTZ: This may be getting into the 5 same question from a different angle. I thought I 6 heard you say very carefully we are aware of 7 certain things. Does that suggest that the fact, 8 this -- the examples you gave, do they not -- are 9 they not obvious from the data that's collected? 10 I mean, did you get that information from another 11 source other than the application? 12 MR. SHAPIRO: We got it from multiple 13 sources, but the application as well. 14 MR. KURTZ: I'm not doubting the truth of it 15 all, but, I mean, it would seem to me it would be 16 hard to -- it might be hard to cap -- to have 17 that -- to learn of something like that from the 18 application, itself. To learn of something like 19 the father and son and the daughther-in-law doing 20 800 cases in five counties, you have to put 21 together a lot of information. 22 MR. SHAPIRO: We did. We had to piece 23 together five different counties' applications, 24 none of which listed the names of the attorneys, 25 and all of which intimated that two or three KING COURT REPORTING SERVICE 32 1 attorneys were handling the full caseload of each 2 of those five counties, and only after we put the 3 pieces of the jigsaw puzzle together did we 4 realize that it was the same two or three 5 attorneys that were handling 825 cases. 6 MR. KURTZ: So the data that you have 7 wouldn't have -- that wouldn't be apparent from 8 the application? 9 MR. SHAPIRO: No. No. And in those cases, 10 although we have for at least six years now asked 11 for copies of the contracts for indigent defense 12 services, in those particular applications they 13 were omitted, and so it made it that much harder 14 for us to learn that it was the same attorneys. 15 MR. KURTZ: Now that leads to another 16 question, and I think part of what we heard last 17 month, and it was said in different ways at 18 different times, but I understood it at some times 19 to be referring to the guidelines, which convinced 20 me have not been changed, but at other times 21 involved the nature of the application or the 22 form. Has that been changed? 23 MR. SHAPIRO: It has evolved, yes. 24 MR. KURTZ: Okay. And it's gotten more 25 detailed, or some more and some less? KING COURT REPORTING SERVICE 33 1 MR. SHAPIRO: A little bit. Two years ago 2 we asked for specific information from the public 3 defenders and the contract attorneys because we 4 were trying to learn more about situations that 5 weren't revealed in the normal data gathering. 6 Originally the application was on about five 7 pages and it was in a font that was so small you 8 needed a microscope to read it. And so the first 9 thing we did was we expanded it to 12.5 and that 10 pushed it to about eight or nine pages and it was 11 much easier to work with. 12 We've got copies of the funding application 13 for you all to see because I know there were some 14 questions about it. This year the biggest change 15 was we dropped out the break-out sheets for those 16 attorneys and we also color codeed it. 17 The white sections have to be filled out by 18 all counties, and the color coded sections would 19 be for public defender counties, or contract 20 counties, or appointed counties. The whole thing 21 is about six pages. 22 MR. KURTZ: And they've got to do this once 23 a year? 24 MR. SHAPIRO: Once a year. It goes out the 25 second week in January and so it misses the KING COURT REPORTING SERVICE 34 1 Christmas mail rush and it's due back June 1st. 2 MR. KURTZ: And this is the only thing they 3 have to send? 4 MR. SHAPIRO: Yes. 5 MR. BRIGHT: And the guidelines have never 6 been enforced, right, if a county doesn't appoint 7 lawyers within 72 hours if it doesn't use the 8 poverty guidelines if the caseloads are three 9 times what they ought to be, nobody ever losses 10 their money or is in way sanctioned for doing 11 that, right? 12 MR. SHAPIRO: I'm not aware of any county 13 that has permanently lost its money. 14 MR. BRIGHT: Has anyone temporarily lost 15 their funding for those kind of violations? 16 MR. SHAPIRO: When the guidelines were 17 changed a couple of years ago where it moved from 18 35/45 to 45/60 several counties indicated that 19 they were caught in the middle of their budget 20 cycle and typically January they would move up to 21 that rate. 22 And so their funding was delayed until they 23 did move their hourly compensation up. Now, they 24 received their full funding for the year. What 25 the council did was except their application, but KING COURT REPORTING SERVICE 35 1 delayed the distribution. 2 MR. KURTZ: And distribution of funding is 3 once a year? Twice a year? Four times a year? 4 MR. SHAPIRO: Typically distribution of 5 funding is three times a year. The state funds 6 currently $5.39 million is distributed in the 7 middle of October and the middle of April, and 8 then we also get interest on clerks' and sheriffs' 9 trust accounts, and I'll talk about that a little 10 more later, but that typically is distributed in 11 the middle of August. 12 CHAIRMAN MORGAN: I'm going to ask if there 13 is no other questions from the Commissioners that 14 we let Michael go ahead and finish. And I'm going 15 to also ask for the guests, just for the sake of 16 order, if you would wait to be called on by the 17 chair. I think that will help us make sure that 18 everyone has a chance to comment or ask questions. 19 Go ahead, Michael. 20 MR. SHAPIRO: Thank you, Charles. The only 21 other change in 1997 of significance was contract 22 cases. Contract programs were prohibited from 23 handling the death penalty case under the 24 contract. That attorney could still, on an hourly 25 basis, handle a death penalty case. KING COURT REPORTING SERVICE 36 1 This was to avoid the appearance of a fee 2 cap in a death case, which is prohibited by the 3 state. We notified every single county of funding 4 through our newsletter, and we also send funding 5 applications out to every county, whether they 6 received funding the year before or not. 7 This is a repeat of a slide that y'all saw 8 in February. And this is your breakdown, and it's 9 assuming zero loss of time. An attorney is 100 10 percent efficient, works 50 weeks a year, 40 hours 11 a week, has no administrative time, no down time, 12 no sick time, no nothing. The best they could do 13 if they maxed out would be 13 and a half hours per 14 felony. A day and a half per felony. 15 Now, I know that when the guidelines were 16 first put in place and specific like this Joe 17 Chambers, who was the director of Prosecuting 18 Attorneys Council, wrote to me and said he wished 19 that there would be similar guidelines for the 20 prosecution. And I sympathized with Joe because 21 it's true. The prosecutors were overwhelmed, too. 22 The caseloads that are expected to be 23 handled by prosecutors and defenders in this state 24 are unmanageable and possibly unconscionable. And 25 I sympathize with the prosecutors. They, too, KING COURT REPORTING SERVICE 37 1 have tremendous difficulty. This is not something 2 where the defenders are isolated. 3 Our national standards, our standards fits 4 within the national standards. If you looked 5 closely at that Bureau of Justice Administration 6 monograph that keeping defender caseloads 7 manageable you'll see that sound management 8 information has got to be based upon statistical 9 and reliable information. 10 You've got to have a good statistical 11 reporting procedure. We use the funding 12 application. It is critical for us to have 13 accurate and complete applications. There has got 14 to be some sort of trigger. There's got to be a 15 safety valve that says Bob Keller has X number of 16 cases. He can't take X plus one. He just can't 17 do it. Or he just took a serious felony and he 18 needs some time to catch on that serious felony 19 before we can assign him another case. 20 And we need support. The Indigent Defense 21 Council is the -- I don't want to say we're the 22 least supported agency in the state. We're one of 23 the smallest agencies in the state. 24 We are politically often left field, if you 25 want to do that figuratively. We don't have a lot KING COURT REPORTING SERVICE 38 1 of support, and I'm grateful that Bob has agreed 2 to be on the Commission. He and I have been 3 friends for years. I thought of the joke the fox 4 in the hen house, but it's not true. 5 You heard from several prosecutors a few 6 months ago. If the criminal justice system is 7 going to work it has to work for all of us. The 8 Indigent Defense Act anticipates that the local 9 administration is done by a tripartite committee, 10 and it requires reasonably early entry of counsel. 11 If you use an independent defense 12 administrator, as most programs do, or if you use 13 a tripartite committee, then counsel is assigned 14 before arraignment, which means the Judge can do 15 something at arraignment instead of just saying 16 Mr. Shapiro would you take Mr. Barnes' case? And 17 that's the way it should be done. 18 The best programs have good administrators 19 running them. And this is where I think we get 20 into the conflict with the Judge, and it's not a 21 true conflict. It's a misperception. Nothing 22 about the Indigent Defense Council has advocated 23 for would strip any control away from the courts. 24 The whole point is that the administration 25 is indigent defense be handled before the Court KING COURT REPORTING SERVICE 39 1 has to deal with it. If there is a problem with 2 indigent defense, there is a problem with the 3 Defendant not liking the attorney, not trusting 4 the attorney, there is a problem with the attorney 5 him or herself, that's when the Court can get 6 involved if it hasn't been handled by the 7 administration. 8 The Court retains the inherent power to 9 control its caseload, it controls stock, it 10 controls the decorum of the attorneys and the 11 participants within the courtroom. But a good 12 program, a well-run program only needs the Judges' 13 involvement when something's gone wrong. The 14 Judge has too many hats to wear already. Let them 15 wear the hat that says they're arbiters of 16 justice, not the one that says they have primary 17 responsibility for indigent defense. 18 MR. KURTZ: Michael, I understand how that 19 plays out in Fulton County, DeKalb County, Cobb 20 County, and Muscogee. How is it played in Ware 21 County? 22 MR. SHAPIRO: In Ware County they do have a 23 public defender's office. 24 MR. KURTZ: Okay. I picked the wrong county 25 then. KING COURT REPORTING SERVICE 40 1 MR. SHAPIRO: It is one of the smallest ones 2 in the state. You would be surprised. In many of 3 the smallest counties the administration is being 4 handled by the court clerk, or the Judge's 5 secretary, or someone in the courthouse. 6 In some of the counties people are not 7 provided counsel until they show up for 8 arraignment. And I'm working with the folks in 9 DeKalb County right now. The second or third 10 biggest county in the state. If there is a 11 conflict of interest, the easiest example that I 12 use is when people say, "What's a conflict?" 13 You've got a driver and passenger in the car 14 and there is drugs found in the front seat, and 15 everybody does this (indicating). Oh, it was the 16 driver's drugs. It was the passenger's drugs. 17 Obviously, one attorney can't represent both 18 the driver and the passenger because their defense 19 is conflicting one another. In that situation in 20 DeKalb the public defender's office will take one 21 of the Defendants, but the second Defendant will 22 not be assigned counsel until arraignment. 23 Nobody wants that. Judges don't want that. 24 The prosecutors don't want that. The Defendants 25 certainly don't want that. We need to have a KING COURT REPORTING SERVICE 41 1 better mechanism to provide counsel at the 2 earliest possible opportunity. 3 The Independent Defense Act and the 4 guidelines compel programs to appoint counsel 5 within 72 hours of arrest if the person remains in 6 custody, or no less than 10 days before the next 7 critical stage, which is arraignment. 8 And so why are we waiting until arraignment? 9 It's a very inefficient use of courtroom time. 10 The Judge's time is very precious, and the 11 prosecutor's time and defender's time is very 12 precious. 13 MR. KURTZ: So another way to say that then 14 is in all of these cases where counsel is not 15 appointed until arraignment they're in violation 16 of the guidelines? 17 MR. SHAPIRO: Yes, they are. Now, we 18 recognize there is some administrative constraints 19 in this as well. 20 JUDGE BIRCH: Tell me again who appoints the 21 tripartite committee? 22 MR. SHAPIRO: They are equal representatives 23 of the County Commission -- 24 JUDGE BIRCH: I know who they are. I mean, 25 who are they? How do they get there? Who KING COURT REPORTING SERVICE 42 1 initiates the procedure? 2 MR. SHAPIRO: Well, when a county applies 3 for funding, for example this year we had 18 4 counties join the program that did not participate 5 last year. We had two counties drop out. Of 6 those 18, 11 had never been in the program. And 7 so we traveled the state working with them, 8 talking with the Judges, talking with the County 9 Commission, talking with the bar association about 10 each name and representative to the committee. 11 JUDGE BIRCH: I see. 12 MR. SHAPIRO: And that's, you know, Steve 13 asked earlier about whether we've ever delayed 14 funding. There are some instances with new 15 counties where they've been approved subject to 16 the formation of the tripartite committee, but the 17 code doesn't allow us unless we're going to run a 18 pilot project to fund them without the tripartite 19 committee. 20 MR. SHAPIRO: Yes. 21 CHAIRMAN MORGAN: What do some -- the 22 counties that don't apply for funding, why is 23 that? Do they express that, or do you have any 24 views as to why that's the case? Counties don't 25 want to turn down the money. KING COURT REPORTING SERVICE 43 1 MR. SHAPIRO: There are four counties in the 2 Lookout Mountain circuit, Chattooga, Catoosa, 3 Walker and Dade have never applied for funding in 4 the history of the Indigent Defense Council. In 5 talking with Chief Judge Wood up there his 6 response is they just like doing things the way 7 they do things. 8 And since the approval of the Chief Judge is 9 required for a county to apply, I've been up 10 there, I've talked with the Judges, I've talked 11 with the County Commissioners, I've talked with 12 the county managers. Until Judge Wood changes 13 that position we can't fund it. 14 CHAIRMAN MORGAN: Could you tell us again 15 the counties that don't apply? 16 MR. SHAPIRO: Sure. Chattooga, Catoosa, 17 Walker, Dade, Jackson, Putnam, and Jones. Now, 18 the last three at one time were funded. Putnam 19 and Jones were funded last year, but did not apply 20 this year. I don't know for certain about Jones 21 County. We've talked with the court clerk and it 22 seems like they just let it slip between the 23 cracks. 24 In Putnam County they're having a difference 25 of opinions in the County Commission. It's KING COURT REPORTING SERVICE 44 1 literally split in half and they just couldn't get 2 the support of the County Commissioners to fill 3 out the application. 4 Jackson County was in the program up until 5 about two years ago. They had a tremendously high 6 caseload. They rang the bell, if you want to say 7 it. One attorney, 685 cases in a single year. We 8 expressed tremendous concern over it. 9 The County Commission agreed to bring the 10 program inhouse, that program had been a contract 11 program prior to that, and to hire a second 12 attorney, but in exchange they dropped out of 13 funding. 14 And despite our best efforts and our 15 agreement that the Chief Justices told us that the 16 caseload limitations are aspirational, they chose 17 not to reapply. 18 CHAIRMAN MORGAN: Wilson. 19 MR. DuBOSE: Mike, who typically completes 20 the applications? 21 MR. SHAPIRO: Typically the independent 22 defense administrator. The administrator is the 23 person that could be on the tripartite committee 24 or selected by the tripartite committee. 25 Oftentimes it is someone in the courthouse KING COURT REPORTING SERVICE 45 1 or close to the courthouse. In many programs it 2 is the local attorney. Here in Fulton County Bob 3 Rubin, who is a private practitioner, is the chair 4 of the committee, but they've got somebody in the 5 courthouse that does the operations. Other 6 questions? 7 MR. KURTZ: So there needs to be an 8 administrator? 9 MR. SHAPIRO: Like with any program. And I 10 realize that it may not be a full-time job. I was 11 down in Hamilton the other day, which is just 12 outside of Columbus. Four counties just outside 13 of Columbus joined the program this year, and the 14 court clerks are struggling with the changes 15 because in the past the Judges had made the 16 appointments and they recognize the benefit of 17 early appointment, but it's something new to them, 18 and it's an additional responsibility. 19 The programs that worked well have full or 20 part-time staff that can devote the time to 21 indigent defense; that either communicate with the 22 jail on a regular basis, or if the caseload is 23 high enough the number of arrests are high enough, 24 they visit the jail on a recurring basis. 25 In many programs there are literally visits KING COURT REPORTING SERVICE 46 1 every morning to the jail to see who was arrested 2 the night before, determining whether or not they 3 qualify under the federal poverty standards for 4 counsel, and if so assign them counsel. 5 MR. KURTZ: And, of course, the appointment 6 function is primarily an issue only in those 7 jurisdictions that use panel as opposed to 8 contract or public defenders? 9 MR. SHAPIRO: That's true. 10 MR. KURTZ: And, obviously, the public 11 defender knows how to get through the jail and, 12 likewise, the contract attorney knows how, and 13 that's sort of self-triggering. It starts by 14 itself. 15 MR. SHAPIRO: It typically is, yeah. 16 MR. DuBOSE: Is the GIDC funding to the 17 counties ever conditioned upon a certain level of 18 local funding by the counties? How are funds 19 allocated to the counties? 20 MR. SHAPIRO: The funds are allocated 21 according to a three-part format: Population, 22 indigent caseload, and independent expenditures. 23 I've got a slide in here later on that talks about 24 some quirks of the three-part format. 25 Counties -- state funding right now is about KING COURT REPORTING SERVICE 47 1 11 percent. We had asked last year the 2 legislature increase us to 15 percent by taking us 3 up to $6.8 million. We increased from 4.89 to 4 5.39, and with the new statistics that came in 5 from the counties there was literally a 20 and a 6 half percent increase in expenses that the 7 counties had last year. It was a tremendous 8 increase. And the caseload was that much. 9 MR. TATE: I have four that I want to ask at 10 the same time if you can answer them. 11 No. 1, does the GIDC have a lobbyist? And 12 if not do they have a form of coalition that might 13 get a lobbyist? And the reason why I asked that 14 is there are some quirks in the act that still 15 lets a lot of deserving people fall between the 16 cracks. 17 For instance, the poverty guidelines were 18 unrealistic 10 years ago. If they were 19 unrealistic 10 years ago and really haven't been 20 successfully adjusted they're even more 21 unrealistic now. 22 And if we couldn't change it on the federal 23 level there might be some adjustments that could 24 be made legislatively that would allow a few other 25 people who would be ruled out to be able to get KING COURT REPORTING SERVICE 48 1 it, even if they had to do partial payments or 2 something. That's a major thing. 3 And then another question. The law says the 4 Judge can intervene whenever there is a problem in 5 the case, but the question in my mind is when and 6 how can the problem be asserted? And when and how 7 is it recognized? Because you say it's a problem 8 in the case, the kid says well wait a minute here, 9 I can see, you know, that you're not interested in 10 the case, or we have a major, major problem of 11 contradiction here. 12 And you know the story about how you can't 13 get anything in ineffective counsel, and so how 14 does the kid, or the parents, or the people who 15 raised the issue, how does the Judge recognize it 16 and how could that problem be solved? 17 Those were just two of the four. Maybe I'll 18 ask the other two later on. 19 CHAIRMAN MORGAN: Thank you. 20 MR. SHAPIRO: The answer to your question is 21 yes, we do have a full-time lobbyist and Ms. Smith 22 is in the back of the room and other members of 23 our staff are frequently down at the legislature. 24 Tom Bollen is here. We worked with the 25 Southern Center for Human Rights. We even worked KING COURT REPORTING SERVICE 49 1 with Bob Keller, who is lobbyist for the DAs, and 2 we do try to work on that. 3 In terms of your second question, I know 4 that John Cole-Vodicka, and Steve Bright, and the 5 State Bar, and we get letters all the time about 6 Defendants complaining that they're not confident 7 in their attorneys and they're not being 8 communicated -- there is no communication with 9 their attorneys. We try very hard to work with 10 the local administrators and with the attorneys to 11 put the trolley back on the tracks. 12 CHAIRMAN MORGAN: Okay. Let's go ahead. 13 MR. SHAPIRO: Poverty guidelines were 14 amended to adjust with the federal guidelines. I 15 know Phillips Legal Services uses what, 125 16 percent? Is that right? 17 MS. HOLEMAN: Uh-huh. 18 MR. SHAPIRO: And so that would be perhaps 19 that only other change, to go at a percentage 20 above what the federal poverty index is. Right now 21 we look directly at the poverty indes. 22 There are alwyas going to be a certain 23 number of cases that will show up in court where 24 the Defendant has not gotten counsel. Judge 25 Fuller will tell you. I'm sure Judge Adams, too. KING COURT REPORTING SERVICE 50 1 If the Defendant comes into court with a first 2 Defendant and says I'm going to hire Ed Garland, 3 that doesn't happen. That is going to be an 4 aberration. It shouldn't be the norm. Counsel 5 should be provided early on. 6 And nothing strips the Court of its inherent 7 power and authority over the courtroom. That's a 8 different issue and that's not something that 9 we're interested in adjusting at all. 10 Okay. Council recently had a meeting where 11 we came up with a revised mission statement. The 12 mission is to promote justice and fairness to all 13 indigent persons charged with crimes or who are 14 parties in a juvenile action by providing fiscal 15 and professional support that ensures effective 16 indigent defense systems and high quality legal 17 services in all courts, as mandated by the laws 18 and by the Constitution of the United States and 19 Georgia. 20 We also came up with a vision statement and 21 it talks about the need to collaborate because we 22 recognize that we are one player in a system. We 23 have seven divisions. Our administrative division 24 like in any organization handles human resources, 25 office management, our physical services. KING COURT REPORTING SERVICE 51 1 We have an appeals division of one, 2 hopefully two by the end of next year. We do our 3 own appellate litigation cases that come out of 4 our divisions, whether it is the death penalty 5 division, whether it was the mental health 6 division. 7 And we also serve as a resource center for 8 attorneys statewide in post conviction cases. 9 Sarah's division, the governmental relations 10 division, handles the lobbying, and also gathers 11 the statistical data, and distributes the funding, 12 and assists the counties in trying to improve 13 their programs. 14 Our juvenile division was created five years 15 ago. It provides training and support to 16 attorneys all over the state who are handling 17 cases in juvenile court, and it is becoming more 18 and more complex. 19 The mental health division was created by 20 the legislature in 1996. We are working 21 collaboratively with counties all over the state. 22 We've worked on a new program in Augusta to hyper 23 train an attorney handling mental health cases. 24 These are perhaps the most complex cases and the 25 most difficult clients. KING COURT REPORTING SERVICE 52 1 MR. GRIFFIN: Let ask a question about that. 2 Are you seeing an increase in that since the 3 States closed all of their mental health 4 facilities and cut funding to counties for mental 5 health treatment, I hear you're telling us that 6 more and more mental health people are ending up 7 in our jail on various charges. 8 MR. SHAPIRO: We are estimating between 18 9 to 20 percent of the people in the jail have some 10 type of mental health issues. That number may 11 actually be low. 12 MR. GRIFFIN: We understand that one of the 13 fastest growing expenses is for mental health. 14 JUDGE ADAMS: What proportion of the budget 15 is allocated to the juvenile division, or juvenile 16 court cases? 17 MR. SHAPIRO: Our in internal budget for 18 operations or on the outside, what the county 19 spends. 20 JUDGE ADAMS: Well, the funding. Is any 21 portion of it? 22 MR. SHAPIRO: Well, Judge, I couldn't really 23 tell you because the funding application doesn't 24 ask for a breakdown of how the funds are spent 25 other than whether they are spent on the KING COURT REPORTING SERVICE 53 1 administration of a program or the attorney's fees 2 and the other ancillary expenses. 3 We don't ask whether a certain amount is 4 spend on misdemeanors, or felonies, or juvenile 5 cases. 6 JUDGE ADAMS: And so there is no way of 7 telling, or there is no data that would show what 8 the funding of juvenile court defense state-wide 9 is? 10 MR. SHAPIRO: No. 11 JUDGE ADAMS: For the defense of indigent 12 cases. 13 MR. SHAPIRO: No. There are some programs. 14 I'm sure in your county's program I know up in 15 Rome because Judge Pate is an elected Judge up 16 there and they have a completely separate office 17 that we could track it, you know, spot check it, 18 but I don't believe that we could do a state-wide 19 figure for you. 20 JUDGE ADAMS: Well, do you have any 21 estimate? I mean, is it a large figure? A small 22 figure? 23 MR. SHAPIRO: Oh, it's growing. It is 24 growing. The number of juvenile cases, we could 25 do that. We could extrapolate from the caseload KING COURT REPORTING SERVICE 54 1 because we do collect date based upon whether it's 2 felonies, misdemeanors, probation revocations. 3 And in juvenile we break it down to 4 delinquencies, deprivations, unruly, incorrigible, 5 termination of parental rights, and so we can 6 track the caseloads, but I do know the expenses 7 are growing. 8 In Floyd County, up in Rome, I know last 9 year they had a 100 percent increase in their 10 expenses. 11 MR. KURTZ: Is the juvenile caseload 12 increasing more frequently than the felony 13 misdemeanor caseload? 14 MR. SHAPIRO: It appears to be. Now, don't 15 draw a conclusion from that that the number of 16 juvenile cases is growing because one of the 17 concerns that we have is counsel is not being 18 appointed in certain cases. I think one of the 19 things that David Carroll from Spangenberg talked 20 about last month was the unusual ratio between 21 felony and misdemeanor cases in Georgia. 22 Typically states have a three-to-one ratio 23 of misdemeanors to felonies. In Georgia, the 24 statistics we get show a 2.4-to-one ratio in the 25 opposite direction. We are providing counsel in KING COURT REPORTING SERVICE 55 1 nearly two and a half cases, two and a half felony 2 cases for every misdemeanor case we are providing 3 counsel. 4 MR. TATE: The prosecutors overcharge 5 exponentially. 6 MR. SHAPIRO: I don't know that I would draw 7 that conclusion. My concern is that we are not 8 providing counsel in some misdemeanors. 9 Clearly in some cases where there is a 10 mandatory sentence like DUI counsel has to be 11 provided, but we're aware of instances where they 12 are not being in DUIs. 13 JUDGE ADAMS: And so whatever the growth has 14 been that it is indigent funding for the counties 15 in juvenile cases has occurred in this five years 16 at a pretty substantial rate, huh? 17 MR. SHAPIRO: It's been a pretty good clip. 18 I can tell you when I joined the council in 1996 19 there were approximately 101,000 indigent cases. 20 Now, granted, we were only funding 117 of 21 the counties. This year we're funding 152 22 counties. There were 169,000, almost 172,000 23 cases. Part of that is attributed to the 24 additional counties that we're getting data from. 25 Part of it is the growing indigent caseload. KING COURT REPORTING SERVICE 56 1 The criminal caseloads don't seem to be 2 growing that rapidly. The indigent portion of the 3 criminal caseloads is what's growing. 4 The last two divisions, obviously our death 5 penalty division, is funded by the legislature. 6 It is our largest with ten full-time staff 7 members. We handle our own cases. At any given 8 time we probably handle between 15 and 20 percent 9 of the cases at the trial level, but we track 10 every single case in the state. 11 MR. KURTZ: 15 to 20 percent of the death 12 penalty cases? 13 MR. SHAPIRO: Of the death penalty cases. 14 There are currently -- I think it's 131 now, 15 people on death row. 130 men, one woman, and 16 there are approximately 80 cases pending at the 17 trial level that varies from day to day. 18 The last division, our professional 19 education division. We travel the state. We have 20 facilities at our office. We provide no less than 21 50 large seminars each year on everything from law 22 office automation to handling a rape case or a 23 murder case. 24 Our biggest funding is through the grants to 25 counties funding program. We provide $5.39 KING COURT REPORTING SERVICE 57 1 million. The funding application you all have. 2 It goes out the first of the year. It's got to be 3 returned by June 1. 4 It has one section that's common to all of 5 the counties. That section is white. And then 6 whether you've got a public defender, contract, or 7 an appointed system you have a colored section 8 that you need to fill out. 9 The application forms a binding agreement. 10 It is an inter-governmental agreement between the 11 county. It's got to be signed by the members of 12 the tripartite committee, whether it's three, six, 13 or 30, and also signed by the Commission chair. I 14 sign it on behalf of the council. 15 It's a binding contract. It gathers the 16 data necessary. The caseloads and the 17 expenditures, the population figures we get 18 directly from the census bureau and we updated 19 them for the first time in 10 years this year as 20 the official census numbers came out. 21 We try to ensure conformity with the Supreme 22 Court's guidelines, but as Steve pointed out there 23 is no price for a county that doesn't conform to 24 the guidelines. 25 The code permits counties who have an KING COURT REPORTING SERVICE 58 1 aberration. There is some sort of variance from 2 the guidelines to request a waiver, or the council 3 can sua sponte grant a waiver if it deems that the 4 requirements of justice, fairness, and judicial 5 administration are required. 6 The council has never rejected a funding 7 application. I know a couple of months ago Judge 8 Stephens, who was on the Commission, asked me why 9 we, the council, were withholding funding from 10 certain counties. The council hasn't withheld 11 funding from any county in years. 12 The only time that I can recall that we 13 delayed funds was when we moved from 35/45 to 14 45/60. The Act contemplates that we're the agency 15 to gather all of this data. 16 You heard from a couple of people from Texas 17 last month and they were talking about the need, 18 the critical need to gather statistical 19 information. We've recognized that need. We're 20 trying to do that. 21 Now there is some difficulty at the county 22 level. Part of it is different people are 23 custodians of the information. The county finance 24 office might have the financial figures. The 25 County Clerk's office, or the court clerk's office KING COURT REPORTING SERVICE 59 1 might have the caseload information, but we try to 2 work collaboratively with those groups to get as 3 much information as possible. 4 In fact, we sent a slim down application 5 form. A data collection form to the seven 6 counties that didn't apply for funding. Why? 7 Because we want to know what's going on 8 state-wide. It's prudent to know what's going on 9 state-wide. 10 We are the only agency that is collecting 11 this data. The only agency that's massaging this 12 data. We're the only agency that's trying to 13 predict or forecast what's going to happen in the 14 future. 15 We had anticipated about a 12 percent 16 increase in expenses last year. 17 JUDGE BIRCH: Excuse me. On this data 18 collection, before you leave that, has any thought 19 been given to using a Web site that each county 20 could post on a monthly basis their data as they 21 get it rather than trying to wait until the end of 22 the year and cumulate it all? 23 I mean, we're in the computer age now and 24 sometimes if you get people to do it on a monthly 25 basis where they could access through the Internet KING COURT REPORTING SERVICE 60 1 a Web browser or Web site and put the information 2 in in a form on the back, they could fill it in on 3 a monthly basis, has that even been given any 4 thought? 5 MR. SHAPIRO: We hadn't considered it 6 because what we try to do is reduce the ongoing 7 burden. But I agree with you. If somebody is 8 doing it as a routine we might get more accurate 9 and fresher information and be able to see trends 10 within the year instead of having to wait until 11 the close of the year. 12 JUDGE BIRCH: It might be something that we 13 might want to recommend looking at. 14 MR. SHAPIRO: Certainly. We have the 15 technological ability to collect the data, to put 16 the form on the Web site. Every state that I've 17 talked to, and I was flattered by the folks in 18 Texas. They don't call it the Administrative 19 Office of the Courts, but their equivalent called 20 me and wanted to know what Georgia was doing while 21 they were planning their stuff, and my comments to 22 them was you've got to have the data. You can't 23 do anything without the data. 24 Our criminal justice system is rapidly 25 becoming an indigent justice system. There was a KING COURT REPORTING SERVICE 61 1 study by the Department of Justice about a year 2 ago that in 80 percent of the felonies nationwide 3 Defendants can't afford counsel. Here in Georgia 4 we have several counties at or above 90 percent as 5 indigent Defendants. 6 I was in Walton County a few weeks ago, out 7 in Monroe, that used to be considered beyond 8 suburbia. That was rural Georgia. 92 percent of 9 their caseload is indigent. 10 We had some discussion last month about how 11 we define a case. The National Center for State 12 Courts defines a case as all counts against a 13 single Defendant arising from a single incident. 14 We have modified that slightly. The image I 15 tried to portray last month was the file folder 16 working its way through the Court system. Our 17 definition is a case is a single Defendant charged 18 with one or more counts arising out of a single 19 event or series of related events, and which is 20 disposed of as a single unit. 21 Judge McMillan's example last month of a 22 woman writing 90 check is one case. It's one 23 case. It is processed as one case. It will go 24 through the courts. Now, there are some programs, 25 some counties where the prosecutor's office will KING COURT REPORTING SERVICE 62 1 indict it separately. It will have 90 separate 2 indictments. Most programs will have one 3 indictment with 90 counts on it. That's one case. 4 The only thing that I can visualize is a 5 file folder working its way through the court 6 system. When one of those charges are disposed 7 of, all of those charges are disposed of. 8 MR. KURTZ: But your office will count that 9 as one case whether it was 90 counts or 90 10 indictments? 11 MR. SHAPIRO: Correct. And whether it was 12 30 checks, or 90 checks, or 150 checks. And the 13 capital letters appear on the face of the funding 14 application. I took that verbatim. And that's 15 been our definition for quite a white. 16 150 counties, 21 of them have public 17 defender offices. And this is not a -- I guess it 18 is a term of art, Steve, isn't it? Public 19 defender is a full-time government employee who 20 devotes his or her time exculsively to indigent 21 defense. 22 59 counties use a contract program as their 23 primary delivery method. A contract program is an 24 attorney or group of attorneys, law firm or group 25 of law firms contracting with the county to KING COURT REPORTING SERVICE 63 1 perform indigent defense typically in addition to 2 their private caseload. 3 An appointed or panel system, that's the 4 largest group. 79 counties. Now, of this group 5 one of the 21 counties the public defenders chose 6 not to be funded, and six of the 79 counties with 7 the appointed system chose not to be funded this 8 year. 9 Here are the counties with public defenders 10 offices. Jackson county is the one without the 11 lemming in it. This one here. Although they have 12 a public defender office, they chose not to apply. 13 Not that they were rejected, they chose not to 14 apply for funding. 15 These are the counties that have the 16 appointed systems. The upper left-hand corner, 17 that's the Lookout Mountain circuit. They have 18 never applied for funding. The other two are 19 Putnam and Jones. They had been funded in the 20 past. This year they chose not to apply. 21 These are the contract system counties. If 22 you overlay them all this is what it looks like in 23 the state. Those are the seven counties that we 24 don't fund. 25 JUDGE BIRCH: Are Putnam and Jones in the KING COURT REPORTING SERVICE 64 1 same circuit? 2 MR. SHAPIRO: Yes. That is the Ogeech -- 3 I'm sorry, the Ocmulgee circuit. 4 JUDGE BIRCH: That is the circuit? 5 MR. SHAPIRO: Yes. There are eight counties 6 in that circuit. We fund the other six counties. 7 MR. KURTZ: Not the whole circuit? 8 MR. SHAPIRO: No, it's two of eight counties 9 within the circuit, but they're in the same 10 circuit. 11 Jackson County is in the Piedmont circuit. 12 Banks and Barrow County are funded within that 13 circuit. 14 Okay. And here is the funding formula. 15 It's provided in 17-12-36-B. County population, 16 indigent defense expenditures, indigent defense 17 caseload. We treat each one as a separate 18 fraction, and that results in the award of funds. 19 Because the funding formula has three 20 variables you can't do a one-to-one comparison. I 21 can't say that Hall County got 11 percent, and 22 Dawson county got 11 percent last year. 23 In fact, Hall County probably got more or 24 less than that. Hall County, as a larger county, 25 probably got a little less than that, and that's KING COURT REPORTING SERVICE 65 1 unfortunate. 2 Marion County is a new county in the 3 program. And I don't mean to single them out. It 4 is just that they were at one end of the spectrum. 5 Their funding application this year when we 6 applied the formula would have resulted in a 121 7 percent offset of their expenses. 8 Now, obviously, we're going to cap it so 9 they don't get more than 100 percent because no 10 program should get more than they spent. That's 11 not the design of the formula, but the formula has 12 quirks, and the quirks seem to occur when you've 13 got low caseloads compared to high costs, or small 14 numbers compared to the whole thing. 15 We've analyzed the counties based upon high 16 to low on percentage of reimbursement. We've 17 looked at costs per capita. 22 cents total. 18 That's not just state funds, that's 22 cents per 19 capita. Every citizen of Marion County paid less 20 than a quarter for indigent defense in their 21 county last year. 22 One of the things that should be considered 23 by this group is whether or not the formula should 24 be revised. One of the things that the Department 25 of Audits considered last year was whether the KING COURT REPORTING SERVICE 66 1 formula should be revised to a straight offset. 2 If the county spends $10, and we have a 3 dollar, then it should be a ten percent 4 reimbursement. That's up to the legislature to 5 work out the formulas in this code and perhaps 6 based upon a recommendation by this group. 7 MR. KURTZ: Mike, let me make sure that I 8 understand. I don't know if anybody else does. 9 These numbers represent what percent of the cost 10 of indigent defense in that county as supplied by 11 the GIDC. 12 MR. SHAPIRO: No. 13 MR. KURTZ: No? 14 MR. SHAPIRO: Indigent defense in Marion 15 County in calendar 2000, which is the last year we 16 have data for, costs them $1,561. If we had 17 provided them funding based exclusively on the 18 formula they would have gotten $1,800, almost 19 $1,900. 20 MR. KURTZ: This handout that we've got -- 21 MR. SHAPIRO: That handout that you've got 22 -- 23 MR. KURTZ: -- gets us to the formula? 24 MR. SHAPIRO: Right. That's correct. 25 MR. KURTZ: But you're telling us that -- KING COURT REPORTING SERVICE 67 1 MR. SHAPIRO: This is the first time that we 2 had to cap the formula. 3 MR. KURTZ: That's the only one you did? 4 MR. SHAPIRO: Right. Now, we had some 5 counties that were getting 60 percent. 6 MR. KURTZ: Dodge County, which is the next 7 one on the list, it says 45.66 percent. 8 MR. SHAPIRO: Right. State funding. 9 MR. KURTZ: Now we, the state, provided 10 about 45 percent of the cost of indigent defense 11 in Dodge County in fiscal year 2002. 12 MR. SHAPIRO: That's correct. And there are 13 some losers. There are some that are below six 14 percent. The formula has a lot of quirks to it, 15 and I don't know if that's what the legislature 16 intended. 17 MR. KURTZ: And the formula is statutory? 18 MR. SHAPIRO: Yes, sir. 19 MR. GRIFFIN: Mike, is the death penalty in 20 addition to this? That's funded directly out of 21 your office? 22 MR. SHAPIRO: Correct. That is the $5.39 23 million that the legislature has given us in the 24 state budget, and this is how it will apply to all 25 of the counties. KING COURT REPORTING SERVICE 68 1 Now, obviously, the numbers will be reworked 2 slightly because there will be $300 that Marion 3 County won't get, but you guys get the gist of it. 4 The formula has some real quirks. Yes, ma'am. 5 MS. CHARTOFF: Mike, do you think that this 6 formula is manipulatable? Because I noticed that 7 -- it looks like some circuits are getting higher 8 percentages of funding than a lot of others. 9 MR. SHAPIRO: There are two of the three 10 factors that cannot be manipulated. If the 11 county's population is what the census bureau says 12 it is, and the county spends what the county 13 spends. 14 The only variable that can be manipulated, 15 and I think that's an inarticulate word, would be 16 the caseload. It goes to how many cases are being 17 assigned. 18 What we found, though, is if there is a low 19 cost to case ratio, counties that spend very 20 little on cases, and there are several counties 21 that are spending less than $100, get a windfall 22 out of the formula. I don't know that that's 23 intentional, but it is a result of the formula. 24 Now, one might say that the reason that 25 windfall is there is the county would improve its KING COURT REPORTING SERVICE 69 1 program and get closer to the state-wide average. 2 Marion County is not the lowest. It is not the 3 cheapest cost per case, but at $74 it is pretty 4 inexpensive. The state-wide average last year was 5 $285. 6 There are some programs that are running at 7 20 percent of the average. Do I have concerns 8 about them? You bet I do. 9 MR. KURTZ: Do you or the council have some 10 specific suggestions for improvement of the 11 formula? 12 MR. SHAPIRO: I think one of the things that 13 you ought to consider is whether we should go to a 14 straight offset of expenses and then what you 15 spend is what you get back. 16 Now, we also need to increase the funding 17 because the funding the state provides is woefully 18 low. 19 MR. KURTZ: What you spend is what you get 20 back, but obviously not dollar for dollar. 21 MR. SHAPIRO: No. It would be a percentage. 22 MR. KURTZ: Right. 23 MR. SHAPIRO: What's happening now is the 24 counties that are spending the least are getting 25 the most back. And I don't think the legislature KING COURT REPORTING SERVICE 70 1 intended it that way. And it took 12 year of 2 funding counties for people to realize what was 3 going on. Less for us. It's hard to get the word 4 out. 5 Okay. Also talked about clerks and 6 sheriffs. Since 1993 Superior, State, Magistrate 7 Court clerks and the sheriffs have been required 8 to put certain funds in interest bearing accounts. 9 Typically it's funds that are put into the 10 registry. That's the court clerks' escrow account 11 where the interest has not been designated for one 12 of the parties. 13 Sheriffs' funds are typically cash funds. 14 The clerks and sheriffs gather that interest on a 15 monthly basis, they transmit it to us, we in turn 16 put it into a very high interest bearing account 17 that the State Department of Treasury maintains. 18 Last year it resulted in a record $1.86 19 million in funding that goes back to the council. 20 And so it's about a third of the funding that the 21 state provides. It's matched up with clerks' and 22 sheriffs' interest. 23 We added the Probate Courts last year only 24 when the sheriff transfers a cash bond. We had a 25 problem. There are 91 counties that use their KING COURT REPORTING SERVICE 71 1 Probate Courts like Traffic Courts. 2 If somebody was arrested, posted a cash bond 3 with a sheriff and the case was transferred, the 4 bond was transferred to the Probate Court's 5 clerk's office. The code didn't cover it, so we 6 worked with the probate clerks. We don't want any 7 of the widows and orphans' money. We just got the 8 cash bonds. 9 All of the funds that are collected through 10 the clerks and sheriffs go back to the county. 11 $1.86 million was distributed last year to the 136 12 counties that participated, okay? 13 And that $1.86 million came from a 14 combination of the interest that was transmitted 15 by the clerks and sheriffs, and the interest that 16 was generated by our accounts once it was 17 received, okay? 18 It, too, has had some quirks. Counties that 19 don't participate in our grant county funding 20 formula program have to contribute. The code 21 applies to all 159 counties, but they don't 22 receive distributions. 23 You see, there are some counties that are 24 contributing that aren't getting anything. 25 Conversely, counties that are exempt, and they can KING COURT REPORTING SERVICE 72 1 get an exemption if the service charges on the 2 bank account would routinely exceed the interest 3 that they would generate. They still get these 4 distributions. 5 And, finally, the amount of money that a 6 county contributes, because it's being distributed 7 back out on the formula, has no bearing on the 8 money they get. 9 The Fulton County lost $100,000 in the 10 transaction last year. They provided that much 11 more interest than they got back, according to the 12 formula. And so there are some winners and losers 13 in clerks and sheriffs, and it all goes back to 14 the funding formula. Okay. 15 This is the steady rise in indigent defense 16 costs. We are estimating that indigent defense in 17 the next cycle, and that's the calendar 2001 data, 18 would cost the state approximately $54 million. 19 And that's based -- this increase here is 20 not based on the 20 percent increase here. It's 21 based on an average across those six years, which 22 is a little over 10 percent. 23 And so it's a conservative number. It 24 probably will exceed $55 million. 25 JUDGE BIRCH: Mike, that includes state KING COURT REPORTING SERVICE 73 1 funding and county funding? 2 MR. SHAPIRO: Yes. This is what it costs to 3 run indigent defense. Remember what we do, Stand, 4 is we offset. If you're a county and you spend 5 $10 this year we'll give you 11 cents next year, 6 or a dollar and 10. 7 JUDGE BIRCH: Help me with this. I know 8 we've seen the statistics before, but it would be 9 good to refresh my recollection. Where does 10 Georgia stand on a per population -- I guess 11 that's the -- you get the apples and the oranges. 12 MR. SHAPIRO: Per capita funding for 13 indigent defense? 14 JUDGE BIRCH: Per capita funding versus the 15 rest of the country. 16 MR. SHAPIRO: We're at or about 38, but 17 you've got to recognize that of the 11 counties - 18 11 states below us, none of them provide no 19 funding. And so we're third to last. 20 JUDGE BIRCH: Third to last among the states 21 that provide funds? 22 MR. SHAPIRO: Among the states that provide 23 something, right. Texas went from that list below 24 us and jumped way ahead of us with $19.2 million. 25 If you'll hold it for a minute so that I can KING COURT REPORTING SERVICE 74 1 finish. I'll be happy to answers questions. I 2 just want to make sure we cover it all. 3 The average last year was $287.89 a case. 4 And two years ago that average was about $216. 5 Last year it was $242. I mentioned to you that I 6 wrote letters to about 35 counties that had high 7 caseloads. I wrote letters to 13 counties that 8 had cost per case of $90 or less two years ago. 9 One of them turned out to be an aberration. 10 It was incorrect information that was provided to 11 us, but there are some counties that have 12 chronically provided indigent defense at less than 13 $50 a case. 14 It's a great concern. I don't know how we 15 change it, but I certainly am looking to offer 16 some guidance. The cost per capita went down. 17 That's a statistical anomaly. 18 The code provides that we look at 19 population. It doesn't specify that we look at 20 population estimates. And so the council has 21 always determined or concluded that that meant the 22 decennial census, every 10 years. We had been 23 using the 1990 numbers until this year, and we 24 jumped, obviously, from six million to eight 25 million in population, but of the $6.16, 68 cents KING COURT REPORTING SERVICE 75 1 came out of state funds. The balance, almost five 2 and a half dollars is county or clerks' and 3 sheriffs' funds. 4 MR. KURTZ: And that cost per case is total 5 expenditures, it's not just GIDC grants? 6 MR. SHAPIRO: Rigt. That's the $49 million 7 that the county spent if you break it down by the 8 169,000 cases. 9 Three counties had an increase, dramatic 10 increase in indigent defense expenditures by 200 11 percent or more. Seminole County actually went up 12 300 percent. Seven counties had no change. Not 13 even a penny's worth of change in their indigent 14 defense expenditures last year, and four counties 15 had a decrease by 50 percent or more. 16 Now, we talked with the very end of the 17 spectrum. We talked with the folks at Seminole 18 County and they said they had a larger, complex 19 caseload. They had more serious cases, and a lot 20 of it was travel expenses because they had 21 attorneys coming from outside the county to 22 represent them. 23 We talked to Terrell County. They had a 24 death penalty case and of the 400 or so thousand 25 dollars that they had spent the previous year KING COURT REPORTING SERVICE 76 1 almost a quarter of a million dollars was on a 2 single death penalty case. 3 And so if you drop that death penalty case 4 out of the equation we only had a drop of nine and 5 a half percent. Yes, Phyllis. 6 MS. HOLMEN: Mike, could you say which of 7 those are contract, panel or PD counties? 8 MR. SHAPIRO: None of them are public 9 defenders. 10 MR. KURTZ: The middle ones are contractors. 11 MR. SHAPIRO: Dodge, Montgomery, Bleckely, 12 Telfair, Wheeler, Twiggs and Wilkinson are all 13 contract. I think, I think all the others are 14 appointed. I'll be happy to cross reference it 15 for you if you'd like. 16 MS. HOLMEN: That's fine. 17 MR. KURTZ: But the no change in indigent 18 defense expenditures not by a penny would make 19 sense in a contract system where the contract -- I 20 mean, they could not write contracts for two 21 years. 22 MR. SHAPIRO: Oh, yeah. They could write 23 contracts for multiple years. But we track not 24 just the cost to the attorneys, we track the 25 expert witness fees, and forensic testing, travel KING COURT REPORTING SERVICE 77 1 of witness fees. 2 MR. KURTZ: That could be zeroes, right? 3 MR. SHAPIRO: That would be one conclusion. 4 JUDGE BIRCH: Mike, a minute ago you said it 5 was $49 million for indigent defense in Georgia. 6 Could you give us the flip side of that? Do we 7 know what the prosecution spends? It's about 30 8 percent state funded and 70 percent county funded? 9 Do you know what that is? 10 MR. SHAPIRO: I have heard various ratios. 11 The prosecution is getting approximately $40 12 million dollars in state funds and that's a 13 combination of the District Attorneys and about $3 14 million of that is PAC. It's a 40 or 42. Bob. 15 MR. KELLER: Yes, it is. It's about 42, and 16 I think our request went in at 50 this year. 17 MR. SHAPIRO: Right. And various DA's 18 offices will say that their ratio differs a little 19 bit. I think a conservative number is it's about 20 50/50; that the counties are paying overhead, they 21 are paying support staff, they're paying 22 administrative costs of it. 23 JUDGE BIRCH: And so we interpret that to 24 $50 million that's being spent? 25 MR. SHAPIRO: Approximately $80 million to KING COURT REPORTING SERVICE 78 1 $85 million. 2 JUDGE BIRCH: Versus the 49? 3 MR. SHAPIRO: Bob, is that a pretty good 4 guess? 5 MR. KELLER: Oh, yeah. The state funding is 6 less than 50 percent. 7 MR. SHAPIRO: Less than 50 percent. 8 JUDGE BIRCH: And so if it was $40 million 9 state funds then you can almost double that to 10 county funds, and so 120. 11 MR. SHAPIRO: Would that include solicitor's 12 office as well or the DA's office? 13 MR. KELLER: No. 14 MR. KURTZ: And the solicitor's office is 15 prosecuting some of these? 16 MR. SHAPIRO: Yes. And in some counties, 17 for example DeKalb, has three prosecution 18 officers. There is ADA, a solicitor for 19 misdemeanor courts, and also a separate solicitor 20 for juvenile courts. 21 JUDGE BIRCH: And so we're looking at 22 something in the range of maybe $150 million being 23 spent on criminal prosecution? Hard to tell, but 24 that's probably realistic. 25 MR. SHAPIRO: I would say, you know, KING COURT REPORTING SERVICE 79 1 somewhere in the $100 million to $120 million is 2 probably a very conservative number. A safe 3 number. 4 JUDGE BIRCH: I'm just trying to see what 5 the ratio is. 6 MR. SHAPIRO: Sure. And you've got to look 7 at two things. One is the ratio of caseloads. 8 Now there are certain things that Bob's office 9 have to do that I would never have to do. 10 I don't have to worry about inviting them. 11 I don't have to worry about going in front of the 12 grand jury in disguise, and so there has got to be 13 some function. 14 MR. KURTZ: I thought you liked going in 15 front of the grand jury. 16 MR. SHAPIRO: Only as the fly on the wall, 17 thank you very much. I don't want to be on the 18 stand. Bob would love it, though. 19 CHAIRMAN MORGAN: Wilson. 20 MR. DuBOSE: Regarding the death penalty 21 cases, the multi-county public defender's office 22 you say defends about 50 percent of the death 23 penalty 24 MR. SHAPIRO: Yes. 25 MR. DuBOSE: Well, that takes a huge burden KING COURT REPORTING SERVICE 80 1 off of those counties. How do the counties decide 2 what counties they will favor by giving them those 3 cases? 4 MR. SHAPIRO: Lately what we've done is 5 waited for the counties to ask us if they need 6 assistance. 7 For example, in Pike County recently they 8 had I think it was three murders they asked us to 9 come in. One of the cases there were two 10 Defendants. Obviously, we couldn't represent one. 11 One of our council members, Jerry Ward from 12 Carrollton, took the case. 13 The code provides, once again, a public 14 defender's office can look at its resources and 15 staffing ability and we decide on a case-by-case 16 basis based upon what our current caseload is. 17 We do a spot check and say okay, this is 18 what we have, this is how close we are to trial, 19 this is how close we are to resolving cases short 20 of trial, and yes we can or can't take one case. 21 We open the door one case at a time because we are 22 almost always at the maximum. 23 Our goal is to service the counties and try 24 to provide the resources. In addition to that, we 25 act as a resource to the private attorneys that KING COURT REPORTING SERVICE 81 1 are taking those cases and we do no less than five 2 training seminars, five multi-day training 3 seminars a year to try to increase the core of 4 attorneys that are death qualified. 5 MR. KURTZ: So the 80 to 85 percent of the 6 death penalty cases that you don't take a number 7 of those -- not all of them are paid cases? 8 MR. SHAPIRO: They can't be contract cases 9 because the fee cap -- there are two public 10 defender offices in the state that do take, on a 11 routine basis, death cases. In DeKalb and 12 Mr. Gabriel's office out in Athens. They do 13 routinely think death penalty cases. 14 MR. KURTZ: And there are appointed cases? 15 MR. SHAPIRO: Yes. 16 MR. KURTZ: And there are fee paid cases? 17 MR. SHAPIRO: Yes. The counties spent just 18 shy of $49 million last year. It was a 20.6 19 percent increase. And they handled just shy of 20 170,000 cases. Those counties, those 152 counties 21 will receive $5.39 million in legislatively 22 appropriated funds and an estimated million five. 23 Earlier today I talked about a million 86 is 24 what we distributed last year in clerks and 25 sheriffs. I am hopeful that we can reach that KING COURT REPORTING SERVICE 82 1 number again. I'm conservative in my numbers, but 2 more than $100,000 of that million eight came from 3 three accounts in DeKalb County that somehow 4 appeared after they changed sheriffs. I don't 5 think that's going to happen again. 6 Conservatively, the counties are going to 7 spend -- did I say that nicely, Woody? 8 Conservatively the counties are going to end up 9 spending $42 million next year, and that's -- this 10 year. 11 You talked about the judicial branch budget. 12 Bob had mentioned it yesterday. I got all of the 13 numbers from Mr. Harris. 14 CHAIRMAN MORGAN: Could you go back just one 15 second, Michael, please? 16 MR. SHAPIRO: Sure. 17 CHAIRMAN MORGAN: The $49 million is the 18 total that they spent including what they 19 received? 20 MR. SHAPIRO: Yes. That was what indigent 21 defense in this state cost last calendar year. We 22 asked the counties to give us data on calendar 23 years. We, of course, fund them on that the 24 state's fiscal. 25 CHAIRMAN MORGAN: And of that 49 in 2000 how KING COURT REPORTING SERVICE 83 1 much did you fund? 2 MR. SHAPIRO: We will offset a little shy of 3 $7 million. That's pretty daunting numbers. 4 JUDGE FULLER: And is that -- that figure 5 doesn't include administrative operations of 6 indigent defense programs, does it? 7 MR. SHAPIRO: It does. 8 JUDGE FULLER: And so it includes my folks 9 that are in my budget? 10 MR. SHAPIRO: It does. We asked the 11 counties to give us information based upon 12 non-administrative costs and then there is a 13 separate category for administrative costs, and we 14 do track that. We do include that. 15 There was a comment last month about the 16 federal numbers. We don't penalize a county. If 17 they had gotten a Burn grant, like the folks in 18 Augusta recently got, or if there was a Scape 19 grant, Governor's grant, or something like that. 20 There is no punishment for a county and what 21 they got. We just want to know what they spent 22 because that's what the code dictates we use for 23 the formula. Yes. 24 MR. DuBOSE: Will you also give us some 25 indication about the process by which the county KING COURT REPORTING SERVICE 84 1 budgets indigent defense, what is it across the 2 board? 3 MR. SHAPIRO: One of the questions that we 4 asked in the funding application is how much have 5 you budgeted for the coming year? Approximately 6 half the counties would throw a number out there 7 that is less than what they spent this year. 8 It's a guess, and I sympathize with them. 9 How could you budget for something that you have 10 no control over? There could be more or less 11 indigent cases. In some counties it's a small 12 number. You may have four cases. You may have 14 13 cases. 14 In some counties -- in Fulton County you 15 could have thousands more or less. It's really a 16 guess that the counties, unfortunately, tend to 17 under budget. 18 MR. DuBOSE: If the expenditures go over the 19 budget that typically takes that out of their 20 funding? 21 MR. SHAPIRO: The courts have the authority 22 to grant it. You can't stop indigent defense. 23 It's one of those things that has to go on, and 24 we're doing it on a shoelace right now. 45/60 is 25 not paying you to get rich. It's just breaking KING COURT REPORTING SERVICE 85 1 the bank. Some of these counties, they're having 2 tremendous difficult funding. 3 MR. GRIFFIN: And we're only looking at one 4 aspect of a death penalty case that has a 5 tremendous impact on the county's budget. 6 MR. SHAPIRO: Sure. There was a study in 7 Florida, which is now four years ago, Steve? A 8 million eight from the death penalty case through 9 their first appeal. Now, that was everything. 10 That was prosecution defense, the courtroom 11 security, the Judge's administrative cost, and the 12 appellate cost, a million eight, and that's 13 probably a fairly accurate number. 14 In Stephens County last year, two years ago 15 now, they spent about a quarter of $1 million on 16 indigent defense. More than half of that was on a 17 single case. 18 Charles, does that answer your question? 19 CHAIRMAN MORGAN: Thank you. 20 MR. SHAPIRO: You're welcome. This is what 21 the judicial branch is getting now. And I've 22 broken it down by the -- the fairly natural 23 breakdown is that we use for our branch budgeting 24 process. 25 You can see that we're getting $6.66 KING COURT REPORTING SERVICE 86 1 million, and that's broken into three areas: 5.39 2 for grants to counties; $1,032,000 for the death 3 penalty division, and about $238,000 for our 4 improvement grants program. 5 It's a seed money grant program that we 6 started last year on indigent defense council 7 funds and we're doing it in combination of the 8 Indigent Defense Council and legislatively 9 appropriate funds this year. 10 And so Bob's number, we were talking about 11 $42 million, a little over $43 million. Superior 12 Courts are the largest block in there. 13 MR. KELLER: And, Mike, let me ask you 14 something. Your $6.6 million is just what you're 15 doling out? It's not your -- in other words, the 16 Indigent Defense Council -- 17 MR. SHAPIRO: The operations. 18 MR. KELLER: Operations gets what? 19 MR. SHAPIRO: $1 million of that is 20 operations. That's Mike Mear's operations for 21 death penalty. 22 MR. KELLER: But your whole shop. 23 MR. SHAPIRO: There's approximately $2 24 million over and above that that we use for 25 administration of the other six divisions. KING COURT REPORTING SERVICE 87 1 JUDGE BIRCH: Just to put this in 2 perspective, what percentage -- this is, the whole 3 third branch of Georgia's government. 4 MR. SHAPIRO: Right. 5 JUDGE BIRCH: What is that the percentage 6 of, the total amount spent for Georgia? 7 MR. SHAPIRO: About one percent. It's less 8 than one percent, actually, but the state budget 9 is approaching $15 million. 10 JUDGE BIRCH: Our whole budget for the third 11 branch of the Federal Government, the judicial 12 branch, this gives you some political concept, is 13 less than what the Congress appropriates for the 14 Justice Department, which is a division. 15 MR. SHAPIRO: Of the executive branch. 16 JUDGE BIRCH: A department, if you will, of 17 the executive branch, and so that gives you some 18 idea of what value the legislators put on the 19 court system. 20 MR. SHAPIRO: If you want to put it in 21 another perspective, and I shouldn't dis Jim 22 Wetherington because he's a friend of mine. 23 If you multiply this six-fold you still 24 won't have the Department of Corrections budget 25 here in Georgia. We're spending almost seven KING COURT REPORTING SERVICE 88 1 times what our judicial branch gets on warehousing 2 people. That's a pretty scary thought. 3 CHAIRMAN MORGAN: Just a point of reference, 4 also. I had dinner recently with a woman from 5 Ireland who is going on the international court of 6 justice, and and she told me, and I'd like to look 7 more into this, but she said that in Europe the 8 defense is professional and gets essentially equal 9 funding from the prosecution. Professionalism, 10 funding, and so forth, and they make very much an 11 effort to have a very level playing field between 12 the prosecution and the defense. 13 MR. SHAPIRO: That's interesting you use 14 that. I was in a meeting two months ago where 15 somebody talked about creating a core of 16 professional defenders, and I think that's really 17 what we're looking at as the indigent defense 18 caseloads subsumes, encompasses the entire 19 criminal caseload. And we have a look towards 20 that. Now, how we do that? I don't know, but we 21 need to be looking at some sort of professional 22 core. 23 To look at this in a different perspective, 24 the yellow and the blue are the prosecution and 25 the Judges, and so they take approximately one KING COURT REPORTING SERVICE 89 1 third, roughly, of the judicial branch budget with 2 everything else. Supreme Court, Court of Appeals, 3 us, and the remaining third. 4 We are at 4.9 percent of the state's 5 judicial branch budget. These are the requests 6 for next year, and I think I got it accurate, Bob. 7 You guys are asking for approximately $60 million, 8 including not just the DA's, but the prosecuting 9 attorney's counsel as well. 10 Superior Court -- for the first time ever we 11 put the prosecution ahead of the Superior Courts. 12 We are asking for $11 million. Now, that would be 13 our death penalty operations, our grants to 14 counties, and our improvement grants, and I've got 15 a breakdown. 16 MR. KURTZ: How does that square with your 17 estimate of the costs? 18 MR. SHAPIRO: What we're trying to do is 19 move grants to counties up to 20 percent of an 20 offset. From 11 to 20 percent. 21 MR. KURTZ: I thought about 14 now. $7 22 million versus $49 million. 23 MR. SHAPIRO: That includes the clerks' and 24 sheriffs' funding, yes. 25 MR. KURTZ: Okay. KING COURT REPORTING SERVICE 90 1 MR. SHAPIRO: What we've asked for for 2 grants to counties, that line in the state budget 3 is to take it from currently about 11 percent up 4 to 20 percent. And this will be the new draft of 5 it. 6 And so the ancillary groups, if you will, 7 the non-prosecution, non-Superior Courts are 8 growing and we would grow to six and a half 9 percent of a judicial branch budget. 10 It's a huge wish list. It's about a $3.5 11 million increase, Bob, right? What the whole 12 branch is asking for, and so we're all going to be 13 walking in lock step together to get that. The 14 states and just like the Federal Government has 15 traditionally underfunded the third branch of 16 government. We need a lot of help to get that. 17 MR. KURTZ: And that would be the fiscal 18 year that begins July 1 of next year? 19 MR. SHAPIRO: Correct. This is the 20 breakdown. We would go from $5.39 million up to 21 9.787 in grants to counties. That would take us 22 to 20 percent of what the counties spent last 23 year. We would take improvement grants from the 24 $237,946 up to $537,946. And that's, in fact, 25 what we had asked for this year. KING COURT REPORTING SERVICE 91 1 We've brought that up, the $237,946 to 2 $408,000. We are subsidizing programs. Providing 3 seed money to 43 different counties. 4 And Judge Fuller was kind enough to be at a 5 presentation of the Hall County Commission, where 6 a few weeks ago an interpreter program was up 7 there. And so we're very happy to do this. It 8 allows the counties to tell us what they think 9 will make significant improvements. 10 And the multi-county public defender's 11 office will get an increase of approximately 12 $73,000. 13 MS. HOLMEN: Mike, where did you say that 14 other funding for administration, mental health? 15 MR. SHAPIRO: I altered that. Since you 16 guys get 10 percent by Supreme Court order we get 17 and have for many interest 40 percent of the 18 interest on boarders trust accounts. In Georgia 19 it's administered by something called the Georgia 20 Bar Foundation, and that provides the bulk of our 21 administrative costs. 22 JUDGE BIRCH: On forfeitures. When you all 23 forfeit drug dealers' automobiles, cash and that, 24 where does that go? To the coiffures, or where 25 does it go? KING COURT REPORTING SERVICE 92 1 MR. SHAPIRO: Can of worms. 2 JUDGE BIRCH: That you can tell. 3 MR. KELLER: The formula, the law provides 4 that the District Attorney's office can get 10 5 percent of that, and the rest of the money goes to 6 law enforcement involved in the actual 7 participation and seizure unless the forfeiture 8 exceeds one third of the law enforcement's total 9 annual budget. 10 If it exceeds the total annual budget, one 11 third, it then goes into the county's general fund 12 so you can spend it any way you want. 13 JUDGE BIRCH: And so none of it is 14 earmarked. You see, this is another source of 15 funding that we might want to think about 16 recommending, and that is some percentage of 17 forfeitures go to the indigent defense. If the DA 18 is getting 10 percent of it, maybe we ought to 19 suggest that the county indigent -- I mean, 20 designate it for that. 21 MR. KURTZ: Is there any sense of what that 22 number is? 23 MR. SHAPIRO: No. I don't know that any of 24 us have a sense because it doesn't seem to be 25 going through the GBI. They don't track very KING COURT REPORTING SERVICE 93 1 much. Most of it is in on the county level or 2 it's transferred to the federal. 3 MR. KURTZ: It's transferred to the Social 4 Security or something like that? 5 MR. KELLER: Well, the law provides that it 6 must go. I mean, the way the statute says, it 7 must go back to enhance law enforcement. It does 8 not, and in fact that is one of the problems that 9 the counties got, they could not use it to 10 supplant any of the funds that are funded. 11 MR. SHAPIRO: I thought it was for 25 12 percent. 13 MR. KELLER: And it cannot be spent for 14 salaries. 15 MR. KURTZ: And so it's capital 16 expenditures, new police cars and stuff like that. 17 MR SHAPIRO: Now, there are code sections 18 that talk about using forfeiture funding, making 19 it available to the Crime Victim Compensation 20 Board, which is part of the Criminal Justice 21 Coordinating Council, or the Indigent Defense 22 Council, but in talking with Gail Buckner, who is 23 the director of CJCC, neither one of us have ever 24 received anything. 25 MR. KELLER: And the reason that you have it KING COURT REPORTING SERVICE 94 1 is you never get past the threshold of the one 2 third. That's the reason. 3 MR. SHAPIRO: The other thing is it puts an 4 attorney handling a case where a forfeiture might 5 be contemplated in a hot seat. Do I recommend 6 that my client's funds be forfeited knowing that 7 my program will benefit from it? As much as I'd 8 like to see more funding, I don't know how you 9 address that. Flora, do you have a question? 10 MS. DEVINE: Yeah. If we are funding at 11 that level 20 percent for the next year, and the 12 other states in the U.S. stay the same, where does 13 that put us in terms of overall? That's the same 14 question that you had earlier. 15 MR. SHAPIRO: It would put us at or about 16 34th. 17 MR. DuBOSE: If we get the funding that you 18 requested that would not be used in the spending. 19 That would keep the counties from using their 20 share. 21 MR. SHAPIRO: No. We don't control what the 22 counties spend. That's all controlled at the 23 local level. 24 JUDGE BIRCH: You mentioned how important 25 the statistical data was. The primary collection KING COURT REPORTING SERVICE 95 1 tool is this report. Is there any audit funds? 2 MR. SHAPIRO: No. 3 JUDGE BIRCH: So well, I mean, anybody in 4 business taking into account 202 will tell you 5 that if you don't have an audit function to back 6 up statistical information the validity of it is 7 really questionable. 8 MR. SHAPIRO: I think one of the things that 9 was passed out several months ago was the 10 Department of Audits performance audit of the 11 Indigent Defense Council last year, and they 12 pointed that out. They also pointed out the 13 political realities and the times that we just 14 placed a phone call or sent a letter to verify 15 information that there is this distrust at the 16 local level. Why are you asking for this 17 information? And it has been a very delicate 18 situation for us. 19 CHAIRMAN MORGAN: We are going to be talking 20 later this morning about the Spangenberg proposal 21 that will encompass that. 22 JUDGE ADAMS: Could I clarify something that 23 wasn't asked earlier? 24 The suggestion, I guess, was that the county 25 could accept the funds and reduce their funding KING COURT REPORTING SERVICE 96 1 amount and the state increase theirs, but they 2 couldn't if they had these contracts in place. 3 They might plan in the future to. 4 MR. SHAPIRO: Well, the contract would cover 5 some of the expenses. What the state code 6 contemplates is a reimbursement to the counties. 7 We look at numbers that they have generated and 8 then we provide funding that offsets previously 9 expended funds. 10 JUDGE ADAMS: I see. Okay. 11 MR. GRIFFIN: This is not a controlled cost 12 anyway for the counties. I mean, they don't 13 really know and so you can't cut back. 14 MR. SHAPIRO: No. It's one that's very hard 15 to plan. 16 MR. GRIFFIN: It's only 10 percent to boot. 17 MR. SHAPIRO: You could cut it by slicing 18 attorneys' fees or finding a low-cost alternative. 19 The question is, how do you balance the cost with 20 the quality of services? 21 MR. GRIFFIN: We've already done that. 22 MR. SHAPIRO: Counties are fiscally 23 responsible. They have limited funds, too. 24 CHAIRMAN MORGAN: Michael, have you seen the 25 terms, the contractual terms that typically are KING COURT REPORTING SERVICE 97 1 used? Is there a standard across the state, or is 2 it all over the line? 3 MR. SHAPIRO: It's all over the map. One of 4 the reasons that we've asked counties to give us 5 copies of the executed contracts, there is two 6 reasons. One is, we want to ensure that there are 7 no provisions in there that are contrary to law. 8 Recently we found one county that provided 9 for death penalty cases in the contract. It's 10 illegal. And to protect the county we told them 11 you need to change this clause. It also gives us 12 a smorgasbord, if you will, a cafeteria plan for a 13 county that wants to contemplate a contract 14 clause. 15 Muscogee County just moved from a public 16 defender's program to a contract program and we 17 helped them with the clauses by showing them 18 samples of a lot of different contracts. The 19 other thing is we want to reduce handling the 20 cases. Not just to make sure that we catch the 21 situation in the counties, but also we provide the 22 education. These mailing lists includes 23 thousands of attorneys' names. We want to make 24 sure that everybody is aware of our continuing 25 education. KING COURT REPORTING SERVICE 98 1 MR. KURTZ: Anybody can sign one of those 2 contracts, among others. 3 MR. SHAPIRO: And the ones that you're 4 handling on a permanent basis, and the public 5 defender's office and the code clearly requires us 6 to provide training, and we take it very 7 seriously. 8 JUDGE BIRCH: Is there a minimum? The State 9 Bar has minimum educational requirements. 10 MR. SHAPIRO: There are no standards of 11 practice except in death penalty cases. Georgia 12 does not have standards of practice in indigent 13 cases. 14 JUDGE BIRCH: Part of the guidelines it 15 doesn't embrace? 16 MR. SHAPIRO: No. 17 JUDGE BIRCH: Legal education. 18 MR. SHAPIRO: No, as long as you stay 19 current on your CLE you can take bankruptcy or 20 securities CLE as long as you're current with 21 MCLE. 22 JUDGE BIRCH: Well, that ought to be one of 23 our recommendations. 24 MR. HUNTER: What about the requirement on 25 the trial practice hours? KING COURT REPORTING SERVICE 99 1 MR. SHAPIRO: They have to have the trial 2 practice hours. It doesn't have to be criminal 3 law. Sure, I would very much like to see 4 attorneys required to take it. We are providing 5 it at the lowest cost possible. 6 JUDGE BIRCH: That just seems crazy to have 7 this. I mean, we require every other member of 8 the bar to take X number of hours in ethics a 9 year, and it just seems -- 10 MR. SHAPIRO: I would trade the ethics and 11 professionals for criminal law. 12 JUDGE BIRCH: I understand. I mean, I don't 13 know. Some of those conflict problems that 14 they've got are pretty normal, but it seems to me 15 that it's just silly to say somebody can be on an 16 appointed list or get a contract without some 17 minimum expertise on it, or continuing education 18 requirements for them every year. 19 MR. SHAPIRO: And it's one of the 20 recommendations that the council has made to the 21 Commission. 22 JUDGE BIRCH: That addresses not the 23 quantity but the quality. We've got to 24 prioritize. 25 CHAIRMAN MORGAN: Sure. It seems to me that KING COURT REPORTING SERVICE 100 1 the Commission should be looking at, in terms of 2 the contracts that we're looking at, the 3 contractual terms and the economics of these 4 contracts to see if it's possible to provide the 5 type of attention that's required. 6 MR. SHAPIRO: Paul is aware of this because 7 he serves on the task force. Recently the 8 Governor named a task force on loan forgiveness 9 for public interest lawyers. It would cover 10 prosecutors, public defenders, and folks working 11 in the department of law and the State's Attorney 12 General's office. 13 Now, Bob and I talked about this. I think 14 J. Tom Morgan in DeKalb was one of the first ones 15 to come up with it. It was part of our 16 legislative package last year. It will continue 17 to be part of it. We are having a terrible time 18 hiring the best and the brightest. They're coming 19 out of law school with $80,000, $90,000, $100,000 20 worth of debt. 21 The DA's salary schedule state-wide is 22 $32,000 and change, and that's matched or in many 23 cases lower in some of the defense offices. How 24 are you going to hire somebody at $38,000 a year 25 and keep them? You make $38,000 or you pay KING COURT REPORTING SERVICE 101 1 $38,000? 2 Indigent defense systems are largely county 3 based. We can continue that if we want to. 4 That's not for the Indigent Defense Council to 5 say, but it's prudent to look at some of the 6 options we have. 7 We have a very fragmented system. The DAs 8 and the Judges for the most part at the Superior 9 Court level are based in 48 judicial circuits and 10 those circuits in turn are broken down into 10 11 judicial districts. Those would be some of the 12 overlays available if we're going to look at 13 options for consolidation. 14 Now, some programs are -- I'm sorry, I'm 15 losing my mouth -- are already being consolidated. 16 In Augusta they have three counties: Burke, 17 Columbia and Richmond. There is one office there. 18 And it makes it much easier. It overlays with the 19 DA's office so it overlays with the Judges. 20 It's not for us to say what the program is, 21 but clearly with 159 programs it's unmanageable. 22 Other organizations have different things that 23 they're trying to do and have different positions 24 on indigent defense. 25 I think you all are aware of the staff KING COURT REPORTING SERVICE 102 1 members that were here last month. Many are here 2 today. The Southern Center and Samuel Lowe and 3 several private attorneys filed suit against the 4 Governor and various officials in Coweta County 5 last month. 6 Wilson's committee, the State Bar's indigent 7 defense committee has recommended 12 principles. 8 I think they've been provided to the Commission 9 and they include 100 percent state funding and a 10 state-wide defender program. 11 The association of County Commissioners of 12 Georgia has recommended for many, many years the 13 planks and the platforms. I think the No. 1 plank 14 currently is 100 percent state funding, and the 15 judicial council last year considered a resolution 16 that was put forward by the Superior Court Judges. 17 We had four points to them; that 10 of the 18 15 members, the 10 attorney members be appointed 19 for a short list that the administrative Judges 20 created and all the funds that we currently 21 distribute not go to the counties but go through 22 the judicial administrative district budget; that 23 there be legislative limits on how our funds are 24 allocated, and I think the formula covers that. 25 And I think the last thing is that the KING COURT REPORTING SERVICE 103 1 application be limited to three questions: 2 Population, caseload, expenses. 3 JUDGE BIRCH: Why is that so? I mean, why 4 is that -- talk to us about why the Superior Court 5 Judges don't like you folks, as evidenced by this? 6 MR. KURTZ: That's an unfair question to ask 7 him. 8 JUDGE BIRCH: Well, that's a high law that 9 you can't hit me. 10 MR. SHAPIRO: I don't know, Stan. I mean, 11 we've tried to collaborate. Clearly I'm at 12 loggerheads with some of the Judges, hopefully not 13 all of the Judges, or the majority. There are 14 tremendous concerns about inherent powers of 15 courts. There are differences within different 16 levels of courts about what jurisdiction various 17 levels are going to have. 18 I think the state in 1979 said that indigent 19 defense needs to run indigent defense. I don't 20 think that necessarily detracts from the Court's 21 authority. 22 If I were in court and I were misbehaving, 23 if my case were not moving properly I would 24 absolutely support the Judge's authority to move 25 the case along. KING COURT REPORTING SERVICE 104 1 By the same token I've given you several 2 reasons here why a Judge shouldn't be the one 3 that's running or appointed counsel. That's not 4 what the Judge should do. 5 CHAIRMAN MORGAN: Well, in that text one of 6 the questions that I have is with respect to the 7 federal system. I don't think a U.S. District 8 Court Judge would say I don't have the power to 9 ensure that justice is done in my courtroom and 10 that the defense lawyer is competent. 11 I don't think any federal trial Judge would 12 say that and yet the federal trial Judges don't 13 run an indigent defense program itself, and so I 14 have a hard time understanding -- 15 JUDGE BIRCH: It's historical. The biggest 16 problem that we've got in Georgia is we have 159 17 counties and it all comes down to administration 18 of the money and duplication of effort and all of 19 that, but if you finally get past the fact that, 20 you know, at least during Tom Murphy's lifetime 21 and others you're probably not going to change 22 that and then you've got to sort of deal with 23 what -- you've got to play the cards that are 24 being dealt and there is no point in fretting over 25 the fact that you've got this grossly ineffective KING COURT REPORTING SERVICE 105 1 inefficient system of government. Once you get 2 past that then you have to start doing other 3 things. 4 It's interesting that we have a Governor who 5 is a former very good trial lawyer and I think a 6 person, a very intelligent person understands a 7 lot of this death penalty defense work. I mean, 8 he came out only a few months ago saying well the 9 bar needs to do more. 10 You know, we don't want to merge lawyers who 11 are in criminal defense. It is an injustice to 12 the people with whom you would perpetrate those 13 loads. They don't want to do it either. I've 14 always been of the belief that let the 15 professionals do it. 16 The state indigent defense system. We've 17 got a program. We've got some very dedicated and 18 professionally trained and experienced people and 19 the kind of law that they are attracted to. If 20 the bar is going to do anything you ought to check 21 with them and write a check. 22 This is a state responsibility. I mean, the 23 bar has got a responsibility, but when you're 24 talking about $120 million plus another $50 25 million, $200 million, whatever the state -- every KING COURT REPORTING SERVICE 106 1 lawyer in the state can get his checkbook out and 2 write a check for $2,500. It would be a drop in 3 the bucket. And so this business of looking -- I 4 mean, it's frustrating. 5 MR. SHAPIRO: I'm not aware of any of the 6 professionals that mandates its members to perform 7 pro bono work. Now, Bob has worked for the state 8 all of his professional career. I understand 9 you're on the federal bench. 10 All of us are here because we believe in 11 what we're doing. That doesn't mean that I want 12 somebody to put a gun to my head saying you have 13 to do this. We do it by choice, and I don't know 14 of one of us that is getting wealthy doing it. 15 Should the bar contribute? Absolutely. 16 Should it contribute fiscally? That's what they 17 do in El Paso. Every lawyer case gets 600 bucks a 18 year not to take indigent cases. I don't know 19 that that's the solution. 20 Do I want a mergers and acquisitions lawyer 21 representing me in a complex criminal case? I'll 22 represent myself, thank you very much. 23 Fortunately I'm one of the few that could. There 24 has got to be a better way to do it and publicly I 25 don't want to disagree with the Governor, but I KING COURT REPORTING SERVICE 107 1 was startled when he made that statement. There's 2 got to be a different way. There's got to be a 3 better way. 4 CHAIRMAN MORGAN: Are there any other 5 questions for Michael? Because I know we want to 6 save some time for Wilson and the rest of our 7 program, and so I'm getting a little bit concerned 8 about the time. 9 MR. SHAPIRO: I'm sorry. 10 MS. DEVINE: It's not a question, it's a 11 comment about the response. I think there are 12 many reasons for the tension between the Judges 13 and counsel and the GIDC, but if I were to 14 summarize it I think the word control is the word 15 that crosses a lot of boundaries. 16 I grew up in South Georgia and the 159 17 county issue is a control issue. The reason why 18 we have 159 counties is because local control is 19 what we live by and have always lived by in 20 Georgia, and so I think that historically has been 21 part of the problem. 22 And so when you have a state agency in 23 Atlanta dictating matters at the local level it's 24 going to create tension, and I think we took a 25 step in the right direction with the legislation KING COURT REPORTING SERVICE 108 1 that created GIDC, but it was a compromise 2 legislation who did not take care of the problem. 3 The problem still remains of the desire for 4 local control versus this lack of desire for 5 decisions and control coming out of Atlanta. And 6 we had complete state funding for indigent 7 defense. We still have that problem of local 8 control, or the desire for local control. 9 And so unless we can deal with that through 10 the way that we can deal with it I think we are 11 still going to have a bit of a problem. 12 The control word is also available when you 13 talk about control of the courtrooms and control 14 of the lawyers, the appointment of the lawyers and 15 that sort of thing. I think that when you talk 16 about the standards of practice as well you're 17 beginning to get into issues of control again. 18 And so when we look at the overall framework 19 for indigent defense I think we've got to take 20 into consideration the reality, the historical 21 reality that our legislation from 20 years ago did 22 not take care of. That's the problem that we're 23 dealing with right now. 24 MR. SHAPIRO: The institution is not the 25 problem. And clearly the Indigent Defense Act KING COURT REPORTING SERVICE 109 1 talks about local control and work on this type of 2 balance between state and local issues. 3 CHAIRMAN MORGAN: Well, I think that you've 4 heard that the counties have been in here and told 5 us that as far as they see it they don't want 6 control. 7 MS. DEVINE: That's right. They'd rather 8 give it up for the funding. 9 MR. SHAPIRO: But the concern is whether 10 they lost funding in the process. 11 MS. DEVINE: But that's not the Judges. 12 MR. SHAPIRO: One of the things that Speaker 13 Murphy will say is we'll take over the expenses of 14 indigent defense if the counties would give up 15 their funding forfeiture. 16 It's not as significant in Superior Court as 17 it is in State Court. State courts oftentimes are 18 money making propositions when it comes to funding 19 forfeitures, and I don't know what the numbers 20 would be. 21 Charles, I know you want to finish up. Let 22 me very, very quickly. The Indigent Defense 23 Council has never taken the position on the 24 state-wide public defender. I know that the State 25 Bar's committee has. Council has not. KING COURT REPORTING SERVICE 110 1 Currently we're seeking 20 percent state 2 funding. As a state agency, we're trying to 3 collaborate with other agencies, with the 4 Governor, with the Judges. I certainly think it's 5 prudent to examine all of the alternatives to the 6 159 different programs. 7 We are the largest provider of professional 8 education in the state and so we're trying to 9 improve quality that way, and do we believe in 10 providing counsel at the early stage? Yes. 11 Should we use the guidelines as a reference point? 12 You've got to have a mile marker. There has got 13 to be some number here. It doesn't have to be the 14 door opening and closing, but you've got to have a 15 reference point. 16 Do we want to make sure that the defender 17 caseloads are manageable? Yes. That's one of the 18 issues that you're going to have to pursue. Do we 19 collaborate with you? We have and we certainly 20 will continue to do so. The Judges, prosecutors, 21 legislators, county commissioners and Governor? 22 Yes, that's our job and that is our mission, okay? 23 These are the nine points that you were 24 given last month. The Indigent Defense Council 25 has made these recommendations to you for your KING COURT REPORTING SERVICE 111 1 consideration. 2 And then, finally, I want to invite all of 3 you to attend the second annual state-wide 4 symposium on indigent defense which is Wednesday, 5 November 14, at the Hyatt Regency. 6 We are very grateful to Judge Matthews, and 7 to Rick Malone, and to Jerry Griffin, from the 8 Judges and prosecutors and county commissioners 9 who are doing -- co-sponsoring, if you will, 10 co-sponsoring it in conjunction with the council 11 of Superior Court Judges, Prosecuting Attorneys' 12 Council, and the Association of County 13 Commissioners of Georgia. You are welcomed to 14 attend. Thank you very much for your time. 15 CHAIRMAN MORGAN: Thank you very much. 16 (Applause.) 17 CHAIRMAN MORGAN: Thank you very much. As 18 usual, we're running very tight on time and so 19 Wilson, I think your part of the program is up 20 next. Thank you Michael. 21 MR. DuBOSE: Back in July Charles was kind 22 enough to give part of the floor and we were not 23 able to do part of our program interestingly 24 enough because, as I say, technical difficulties. 25 We have a video that has been used with the KING COURT REPORTING SERVICE 112 1 great assistance of Georgians for Equal Justice 2 and others at the Southern Center for Human 3 Rights, along with some technical assistance from 4 the American Bar Association, and it has been 5 reduced by the Atlanta Indigent -- let me get -- 6 make sure that I have the name right, Media 7 Center, and Warren Goodwin is here. 8 It is a video that depicts certain 9 individuals throughout the state that had direct 10 contact with the indigent defense system, whether 11 it was the indigent Defendants, themselves, or 12 their families, and this is to augment the live 13 witnesses that we had in our July meeting. 14 And so in the interest of time I would ask 15 Warren and Sarah if they will go ahead and 16 proceed. And Sarah, do you want to come up here? 17 MS. SMITH: No. 18 MR. DuBOSE: These are interviews of 19 indigent Defendants throughout the counties here 20 in Georgia. 21 (Whereupon, a videotape was played.) 22 23 CHAIRMAN MORGAN: Comments, or issues, or 24 questions for Wilson or otherwise? 25 MR. KURTZ: Mike, is Emanuel County a KING COURT REPORTING SERVICE 113 1 contract defender county? 2 MR. SHAPIRO: It's a contract attorney 3 county. 4 REPRESENTATIVE HOLMES: The thing that I 5 would ask Mike if some of these counties, at least 6 25 to 35 percent of the funding is coming to the 7 state, why is it not in the indigent defense? Are 8 you just putting the money out there, Michael? 9 Why is it the distrust? You know, I can see if 10 you put five percent or no money in the county, 11 but you know, we are led to believe that state 12 funding is state owed and that you're advancing it 13 to the counties, but I've seen several counties 14 who couldn't as much as a third of the funds and 15 you still have a profit. Is this an inherent 16 problem of people who -- I don't want to get my 17 grandchildren into it -- but, I mean, is it really 18 a problem? 19 MR. SHAPIRO: There is more to the solution 20 than this one. If we continue the system that we 21 have now, and shift the funding 100 percent to the 22 state, we probably get 60. The money is carried, 23 unless there is some stick fund and I don't want 24 to do that, unless the county has been cut off. 25 That's the last thing that needs to happen. KING COURT REPORTING SERVICE 114 1 The counties that are having a problem here 2 are the ones that needs encouragement. How do we 3 find the way to encourage them? Do you make the 4 carat larger or more tempting? 5 Clearly in the last five years we've made it 6 tempting. We've gone from 117 to 152 counties, 7 but the systemic problems are endemic. There are 8 attorneys who are not in compliance. There is no 9 punishment for a program like that. 10 11 REPRESENTATIVE HOLMES: I would agree that 12 in most problems storing money is the most of our 13 problems. I was just little disappointed to see 14 that the attitudes there with indigent defense is 15 coming from counties who are getting 35 percent of 16 the funding. 17 MR. SHAPIRO: And last year some of those 18 counties got more than 50 percent. And when you 19 get to previous years' statistics, and state 20 funding, and the insurance funding the counties 21 don't seem to want to change the way they're doing 22 things. 23 MR. BRIGHT: But the reason they're getting 24 such a high percentage is because they're not 25 willing to spend the money themselves. KING COURT REPORTING SERVICE 115 1 REPRESENTATIVE HOLMES: They not putting any 2 money in. They're paying the state money, but 3 they're not providing the kind of local money that 4 they should be providing. 5 CHAIRMAN MORGAN: Well, I think one of the 6 things that I'm going to suggest that we talk 7 about in the executive session, which we're going 8 to start in or about five minutes, is to talk 9 about some of our future hearings, and I'm going 10 to suggest to the Commission that we invite some 11 of the county commissioners from some of these 12 counties to come before the Commission and talk 13 about how they see the issues, including some of 14 the counties that don't apply for any funding from 15 you. Why is that? And how is their situation? 16 What are the issues? 17 And so that's going to be one of the things 18 that we're going to suggest. We are also going to 19 talk about, during the executive session, some 20 more visits that we are planning to some of the 21 courts and to some of these counties where we're 22 going to be going and seeing them. 23 As you know, we had one such visit, but we, 24 obviously, are planning a whole series of them, 25 and so we're also going to discuss that. KING COURT REPORTING SERVICE 116 1 Are there any other suggestions either from 2 the Commissioners or from the floor in terms of 3 future activities and things that should be 4 suggested to this Commission that we look at? 5 People we hear from? 6 MR. LANCE STEWART: I was just wondering if 7 you made any attempts to go out to the county 8 jails to all of those people that are waiting to 9 hear from their lawyer, or waiting to go to trial? 10 CHAIRMAN MORGAN: I think that's one of the 11 things that we're going to be talking about. 12 MS. HOLMEN: I would think if we are going 13 to have the county commissioners come in we ought 14 to invite their Judges as well because I think 15 there are two perspectives there. 16 CHAIRMAN MORGAN: Great suggestion. 17 JUDGE BIRCH: We need to hear from some of 18 these contract defenders that are handling these 19 huge caseloads and let us get their perspectives. 20 Sometimes I think some of the Judges, I've 21 talked to some Superior Court Judges, and some 22 State Court Judges that I happened to know, and I 23 explained to them that there is this concept or 24 this view that they're trying to remain control 25 over things, trying to keep lawyers under their KING COURT REPORTING SERVICE 117 1 thumbs, they don't want to get reversed, they want 2 things to move quickly, all the bad things that 3 one could conjure up. 4 And some of them say, well, you know, I 5 suppose that's a fair -- I can understand how 6 people would see that, but you've got to 7 understand we've got to run a criminal justice 8 system of some kind rather than just locking 9 people up, throwing away the key. 10 And the County Commission is only giving us, 11 because they've only got X number of dollars to do 12 it with, we are trying to do the best we can with 13 what we've got. If you got some better idea let 14 us have it. 15 I mean, it's easy for us to sit here and not 16 be in their shoes. We need to hear from some of 17 these Judges who say look, you know, I'm elected. 18 I'm trying to give -- dispense justice as best we 19 can. We've got a system that runs. People are 20 getting locked up. They're not all innocent. 21 You know, we see a lot of these people on, 22 frankly, here on the screen, and we understand 23 what they're saying, but if you talk to them and 24 they talk frankly with you, yeah, I'm probably 25 guilty of X and Y, but I was charged with X, Y, Z, KING COURT REPORTING SERVICE 118 1 D, B and A, and if I had a defense lawyer that 2 cared about me I wouldn't have to worry about 3 other than X, Y. 4 And I understand that. And I think any 5 lawyer that has ever represented an indigent 6 Defendant understands that. But these Judges that 7 I talked to they say, you know, we're here, and 8 we're charged with running the system. That's our 9 job. We're trying to be good public servants, but 10 I've only got so many resources to deal with, and 11 I've got 600 people out here, and if I don't move 12 them through fast then they're all going to stay 13 in jail even longer. 14 We need to talk to some of those folks, too. 15 We need to get their perspective. I'm a bit 16 concerned that we're not getting that perspective. 17 And while it may not all be money, it's still a 18 lot of it. And so we need to see that perspective 19 as well. 20 CHAIRMAN MORGAN: Well, if this Commission 21 is going to do nothing else, we've talked about 22 this quite a few times, it's to make the most 23 objective study and the most comprehensive study a 24 factual situation because there is a lot of people 25 that have anecdotes, there are a lot of people KING COURT REPORTING SERVICE 119 1 that have opinions, and I think what our hope and 2 our objective is is to go beyond that and look at 3 it thoroughly, objectively, and then try to make 4 some conclusions about recommendations. 5 CHAIRMAN MORGAN: Yes. 6 MS. RUNDLET: Mr. Morgan, in response to 7 what you asked who else to hear from, I think that 8 there is a real remarkable undertow of race issues 9 that would perpetuate those problems. 10 CHAIRMAN MORGAN: Could you speak up for the 11 reporter, please? 12 MS. RUNDLET: Sure. And I feel like it 13 might be an important thing to hear from some of 14 the civil rights leaders as well as the judicial 15 branches on the Commission on Equality. 16 I know that the Public Trust and Confidence 17 hearings were run with the Commission of Equality 18 and their input would be very valuable in addition 19 to that of civil rights leaders throughout the 20 south. 21 CHAIRMAN MORGAN: Thank you. Yes, Steven. 22 MR. BRIGHT: Well, my suggestion would just 23 be that one of the things that the Commission 24 might want to do now that it's looked a lot at 25 what's happening in Georgia to look forward at KING COURT REPORTING SERVICE 120 1 what are some of the elements of a good system? 2 For example, early entry into cases. We saw 3 the guidelines there. We recently in one jail 4 interviewed 40 people, all of who have been there 5 for a month all of the way up to eight or nine 6 months without having seen a lawyer. 7 I think hearing from somebody about why, 8 whenever someone is arrested, it's important to 9 have a lawyer within a few hours, or a few days, 10 at least, about bond motions and all of that. The 11 value of investigation. 12 I mean, I think the Commission needs to 13 understand why open file discovery doesn't exclude 14 a lawyer from doing any investigation in a case 15 that you can just look at the file real quick, 16 talk to a client for 10 minutes and plead him 17 guilty. 18 And all of the states around us. I mean 19 Tennessee, North Carolina, South Carolina, and 20 Florida, all of those have well-established, they 21 have two elements besides money that are so 22 critical, structure and independence. 23 And there are people there that, I think, 24 would be helpful to the Commission in talking 25 about what are the elements of a system that works KING COURT REPORTING SERVICE 121 1 in terms of early entry into the cases, 2 investigation of cases that do not exist in most 3 of our counties. 4 Client counseling. While it's important to 5 counsel people about the cases, not just 6 communicating what to plea. 7 The other thing that I would suggest is that 8 you have Dean Norman Gluskey from the University 9 of Indiana at Indianapolis speak because he headed 10 up an effort in Indiana which had tremendous 11 problems with their indigent defense system and 12 has improved it remarkably as a result of a task 13 force not unlike this one. 14 One of the things that Indiana does 15 differently than Georgia is you don't get the 16 money in Indiana unless you comply with the rules. 17 As opposed to here you get the money and you can 18 completely ignore the rules and you still get the 19 money, which means that, basically, the guidelines 20 are, for all practical purposes, just an advisor 21 whereas in Indiana you've got to actually do the 22 things in order to get the money, and I think that 23 might be enormously helpful in terms of how you 24 might structure things here. 25 CHAIRMAN MORGAN: Yes. KING COURT REPORTING SERVICE 122 1 MR. KURTZ: Can I ask you a couple of 2 questions, Steven, along those lines? I think we 3 are all troubled, I certainly am, about the lack 4 of early entry. I mean, to hear stories about 40 5 inmates that had been sitting there for a month 6 without having seen an attorney. 7 I'm just curious what specific suggestion, 8 what systemic suggestion, what remedy is out there 9 to make that go away? I mean, the guidelines 10 talked about early intervention. 11 MR. BRIGHT: Well, I mean, what Mike talked 12 about before. If you go down to where Terry 13 Everett is, for example, or if you go to Russell 14 Gabriel is, somebody goes to the jail every day. 15 Now, you said, one thing I wanted to 16 correct, Paul, was that you had asked a question. 17 You said well contract lawyers would know to do 18 that. Not true. The contract lawyers generally 19 won't get involved until they've been appointed. 20 For example, if you go to Coweta County, 21 five people there over a month, 16 people over two 22 months, 12 people over three months without having 23 seen a lawyer, nine over four months without 24 seeing a lawyer. 25 This is just where they are now. I'm not KING COURT REPORTING SERVICE 123 1 saying they're going to see a lawyer any time 2 soon, but what happens is the way in which cases 3 are processed, felony cases, is the Judge brings 4 the clients up and have them talk to the District 5 Attorney, and over half the cases plead right 6 there without any lawyer at all for the Defendant. 7 It's only if the Defendant is pro se and the DA 8 can't come to a resolution then one of the 9 contract lawyers is appointed. 10 MR. KURTZ: I understand that, and I'm 11 willing to -- I agree with you 100 percent. 12 That's wrong, it's bad, it's likely 13 unconstitutional, agree. 14 MR. BRIGHT: It's pervasive. It's not 15 anecdotal. It's a pervasive system. 16 MR. KURTZ: I agree. I agree. Let's 17 stipulate now that it happens and we can prove 18 that it happens not in an anecdotal way, but we've 19 got numbers and dates and times and figures and 20 charts and it's there. We all agree that it's 21 there. 22 MR. BRIGHT: How do you fix it? 23 MR. KURTZ: The next step. How do we get 24 rid of it? 25 MR. BRIGHT: By having full-time lawyers who KING COURT REPORTING SERVICE 124 1 have the responsibility to go to the jail everyday 2 and see who has been arrested, interview the 3 clients, have interviews with their clients, file 4 bond review motions, and do all things that 5 lawyers are supposed to do. 6 MR. KURTZ: The only way we could get from 7 here to there is by having a government employed 8 public defender and a staff who will go to the 9 jail every morning, et cetera, et cetera and do 10 that, is that what you're saying? 11 MR. BRIGHT: Well, some administrative 12 system. I think you could have an administrator 13 who kept track everyday with who has been arrested 14 and appointed lawyers. 15 I mean, you could do that. A more efficient 16 system would be to have one where you have a 17 public defender system altogether because where a 18 lot of people don't get lawyers in this state is 19 the breakdown between the administrator, the 20 sheriff who tells them that somebody has been 21 arrested, they enter an order, and it goes to the 22 lawyer in the mail, and lawyers don't get around 23 to seeing the people. 24 The most efficient system is one that 25 monitors everyday and makes sure that the lawyers KING COURT REPORTING SERVICE 125 1 that same day know that they've been appointed and 2 that their responsibility -- 3 MR. KURTZ: And will also audit them to 4 check the next day to make sure that they went the 5 day before and if they didn't go the day before 6 then they get fired and they don't get appointed 7 to the next case? 8 MR. SHAPIRO: Exactly. The other thing is 9 these people ought to be brought before a judicial 10 officer right away in order to have a bond and 11 probable cause attorney if they're being detained. 12 And the other thing that's pervasive in the 13 state is preliminary hearings and what are called 14 commitment hearings without lawyers. Now that's 15 clearly unconstitutional in Palmer vs. Alabama, 16 the Supreme Court held a long time ago. 17 But if you provided lawyers at that early 18 stage, you have a Judge come, you appoint a 19 lawyer, and you say Mr. Haugen your responsibility 20 is to represent this person from now on rather 21 than waiting nine months later and appointing that 22 same lawyer. It's the same lawyer. 23 Now, you need lawyers that have some energy 24 and care about the clients. I think the other big 25 problem is the contract system is a built-in KING COURT REPORTING SERVICE 126 1 conflict of interest system. 2 MR. KURTZ: I understand that. Now, I'd 3 like to be an optimist, but I must say that to the 4 extent that these proposals require mandating 5 Judges to do things I think you know as well as I 6 Judges in this state, Superior Court Judges, are 7 elected, okay? 8 We can all go down together and tell Judge X 9 starting tomorrow you've got to do this. You've 10 got to hold commitment hearings ASAP, okay? And 11 the Judge says thank you very much, and you come 12 back to Atlanta and he goes and does what he wants 13 to do. 14 MR. BRIGHT: That's why you need lawyers. 15 That's why you need an indigent defense system 16 because you should have an indigent defense system 17 that doesn't depend upon a Judge; that a lawyer 18 would go to the jail and say to this client you're 19 being held, I'm going to file a habeas for you 20 because you're being held in violation of the 21 Constitution. 22 There is no bond here. I'm going to file a 23 bond review motion, and you get the case before 24 the Judge. It shouldn't be up to the Judge. 25 There should be a lawyer who is responsible for KING COURT REPORTING SERVICE 127 1 that client who within hours of when that client 2 comes into the system. 3 And it's the lawyer's responsibility to then 4 file a habeas, file a bond review motion, move for 5 a preliminary hearing. I mean, all of these 6 things are required. It's right there in the 7 statute. You've got to do these things. 8 MR. KURTZ: And yet Mike tells us that 9 everyone of the 152 counties that have applied and 10 received grants this year have, by definition, an 11 administrator of indigent defense, right? 12 MR. SHAPIRO: Yes. 13 MR. BRIGHT: Well, but only some of them on 14 paper because the tripartite committee -- I mean, 15 we've put on the stand some of the members of the 16 tripartite committee. 17 Like in Putnam County there is no other 18 gifts of funds and the tripartite committee said 19 we just were told to come down to the courthouse 20 and sign a form. We had no idea why we signed it. 21 We knew we got state money, but they're not 22 overseeing indigent defense in that system at all. 23 In fact, in that county Sheriff Brusal was 24 appointing lawyers. He was the administrator who 25 was appointing the lawyers who is the sheriff. KING COURT REPORTING SERVICE 128 1 Later he had to go to federal prison and so he had 2 to stop doing that. 3 And then in some other places, just like 4 Mike said, it is the Judge's secretary is the 5 "indigent defense administrator." But, again, 6 this is the county problem. 7 As Judge Birch pointed out, if we did it for 8 the circuit basis and you had an administrator for 9 the 48 circuits it's much more cost effective. 10 One of the things that is wrong with our system 11 now is that it's so ineffective cost-wise because 12 you've got 159 administrators instead of 48, and 13 if you had -- if you unify them you can take the 14 money that you're spending now in this splintered 15 system and use it in a way to make sure that you 16 get lawyers appointed to people literally within 17 hours of their arrest, and then proceed 18 accordingly. 19 CHAIRMAN MORGAN: Okay. Thank you, Steven. 20 Dean Hunter and then the gentleman in the back 21 will be next. 22 MR. HUNTER: This is further to your 23 question. Steve, if you go back to testimony 24 about the public defender system in Atlanta that's 25 an excellent example of how the system is KING COURT REPORTING SERVICE 129 1 organized where they have counsel with a client, 2 as I remember correctly, as Stephanie said, they 3 try to meet within six hours of arrest, never more 4 than 24, but it is a system that has been 5 developed not only by the PD, but also in 6 cooperation with the U.S. Attorney's office, and 7 the whole system, and it works -- well, it works 8 efficiently in that instance. 9 I also have the fellow from Clark County. 10 MR. KURTZ: Russell Gabriel. 11 MR. HUNTER: Who talked about how the 12 system. 13 MR. KURTZ: Oh, I understand. 14 MR. HUNTER: But in response to Steve's 15 question, we have on the record already for this 16 Commission some examples of how systems do work 17 where they get counsel in to clients early in the 18 process. 19 And we also have testimony from people from 20 Tennessee and Kentucky at an earlier proceeding, 21 all of which has a good deal of stuff in the 22 record already about efficient and effective 23 systems that have been put in place either by the 24 state or by the federal system. 25 MR. BRIGHT: The way the -- KING COURT REPORTING SERVICE 130 1 CHAIRMAN MORGAN: Just a second, Steven. 2 Just a second, please. I think this gentleman has 3 been waiting. 4 MR. TATE: You know, I've been sitting here 5 listening to all of these high-powered lawyers run 6 off all of these things about the system, and what 7 we have here, we need people who check on people, 8 who check on people, who check on people like the 9 FBI. 10 You have these secret organizations. You 11 know, the system is run by the law enforcement 12 agencies that investigate lawyers. The Judges 13 investigate the Judges. These people. 14 But you need an independent. People who 15 investigate people, who investigate people 16 secretly so when these people look around they 17 will hear them little foot steps behind them. 18 Even though they're in the office. That's what 19 you need. 20 And you get away from the law people. 21 They're crooked. The Judge is crooked. Everybody 22 is crooked. I might even think about it. 23 You've got to get some people that are not 24 getting paid. That's what you need. You need 25 people to investigate people, to investigate KING COURT REPORTING SERVICE 131 1 people, and nobody knows who the investigator is. 2 And every ime somebody look around there are 3 some foot steps behind them. They don't know 4 where he's at. 5 CHAIRMAN MORGAN: We all feel that way 6 sometimes. Judge Birch, I think you had your -- 7 no? 8 JUDGE BIRCH: No. Somebody answered my 9 question, but I second what he says. We've got to 10 have accountability in the system. 11 CHAIRMAN MORGAN: I think Michael had a 12 comment and then this here. 13 MR. SHAPIRO: Paul, there are programs in 14 Georgia, appointed contract public defenders who 15 work well with people who do go to jail get 16 interviewed. 17 A contract should have a requirement that 18 leaves a certain time frame from appointment. You 19 must go to jail. If your client is released, you 20 must meet with your client from the outside. 21 There needs to be some way to get the word 22 from the jail, to meet with the administrator with 23 some teeth in it that then goes to the lawyer who 24 says that you can't just wait. 25 I've read articles about probation in KING COURT REPORTING SERVICE 132 1 Georgia and around the county where attorneys 2 don't go to jail. The mechanisms to get their 3 client from the jail is very time consuming, and 4 it's so much easier to wait until they're there 5 and you can just walk up to him. 6 We need to find a way to prevent that. 7 Maybe through laws, regulations, or something. 8 We've got to find a way to prevent it. 9 It goes back to my question with Judge 10 McMillan last month. How do you prevent a lawyer 11 from letting the client seek the expeditious 12 handling of their case. The lawyer, in his 13 professional consciousness, knows it's not the 14 right solution. 15 And the example that I gave Judge McMillan 16 was that the patient who walks into the doctor's 17 office saying that I heard you took my appendix 18 out. Baloney. No doctor in good conscious will 19 do that. You examine the client. 20 And I would love to think that the state's 21 solution is a politically viable one. It's not. 22 Georgia is not, and it may never be great for a 23 state-wide public defender system. As much as 24 many of us in the room would like to see it. 25 It would cost millions of dollars and it KING COURT REPORTING SERVICE 133 1 requires a wholesale change in indigent defense. 2 We've got to find incrementally to have a quantum 3 leap. 4 CHAIRMAN MORGAN: Steve, hold on just a 5 minute. I'll come back to you. I think this lady 6 was next. 7 MR. SHAPIRO: I am Cheryl Synamon Baldwin 8 with the regional NAACP and I serve as prison 9 coordinator, and in your presentation I would like 10 to suggest that the face of those requiring 11 indigent defense be a little bit more inclusive. 12 Because what I saw in the video presentation 13 was African-American males. And given that they 14 are, in the State of Georgia, over 70 percent of 15 the population, there are others who are also 16 incarcerated or who have had the same type of 17 experiences, and I think that you would get a lot 18 more support for what you're attempting to do if 19 you show more of an inclusive face because there 20 is an attitude towards black men that is not a 21 good attitude and it keeps some people from even 22 buying into the idea that there is a need for 23 this. 24 And so I would make that suggestion, and 25 also apologize for being late, and let you know KING COURT REPORTING SERVICE 134 1 that I will be attending your meetings and would 2 like to be a part of what goes on here as a 3 representative of the NAACP, our Southeast Region 4 division, although I'm employed by the national 5 office, which is in Baltimore, Maryland. 6 CHAIRMAN MORGAN: We're happy to have you, 7 and I would just take this opportunity also to 8 remind everyone of our next meeting, which is 9 October 10th. It's a Wednesday morning at 9:30 in 10 the morning. Again, that's Wednesday, October 11 10th. It's on the agenda, which is available to 12 anybody. 13 Steven, we'll just have one or two more 14 comments and then we are 15 minutes past our time 15 already. Steven. 16 MR. BRIGHT: I'm sorry. I just meant to add 17 when I was talking a minute ago. One of the 18 things that happened when we filed our lawsuit in 19 Coweta, it was in another judicial circuit, the 20 Judges in that circuit together cut an order that 21 said that the lawyers there were to go to the jail 22 every week and interview the clients. 23 MR. KURTZ: That was in response to the 24 Coweta -- 25 MR. BRIGHT: Well, I don't know if it was in KING COURT REPORTING SERVICE 135 1 response, but it happened at an interesting time, 2 but at least in that county people are not going 3 to go longer than a week in that county, in that 4 circuit. It was an entire circuit. 5 But the last thing that I would say just in 6 response was that I hope that you would 7 investigate the Commission. And what Judge Birch 8 said is right, that Georgia is not ready for a to 9 public defender system. 10 I would hope that part of what you would 11 investigate would be why Georgia is not, if North 12 Carolina, Tennessee, Florida, if all of these 13 other states are. I mean, the Constitution of the 14 United States, to my understanding, applies in 15 Georgia. 16 I mean, even Arkansas has a public defender, 17 state-wide public defender system. Even in South 18 Carolina, which is not a vanguard state normally 19 on these kinds of issues. And why is Georgia not 20 ready if all of these other states around us are? 21 I think that's something the Commission ought to 22 figure out if, in fact, that's true. 23 MR. KURTZ: But your position is not that 24 the Constitution requires a thing like a public 25 defender system. KING COURT REPORTING SERVICE 136 1 MR. BRIGHT: No, but it requires lawyers to 2 attend preliminary hearings, and it requires a lot 3 of things that people are not getting now. It 4 requires lawyers in felony cases. 5 MR. KURTZ: Absolutely. 6 MR. SHAPIRO: It requires lawyers in any 7 case where there can be a loss of freedom. I 8 mean, all of those things are being repeatedly 9 violated in our courts and there has got to be a 10 solution. 11 CHAIRMAN MORGAN: Well, we have heard and I 12 think we can all afford to stay very closely to 13 the situation in Texas, which is very similar to 14 our situation now, and how they dealt with their 15 problem. 16 I also passed out an article about the 17 situation in Mississippi, and we may want to hear 18 from some people from Mississippi because they are 19 grappling with the same sort of issues that we 20 are. 21 And so we may want -- I think the notion of 22 hearing from other states is one that I think we 23 all endorse. 24 Lastly, I would like to just again welcome 25 and recognize Bob Keller, and we are delighted to KING COURT REPORTING SERVICE 137 1 have you, and so thank you for being here and 2 contributing. We're delighted to see you and we 3 look forward to seeing Bill Lyde at our next 4 Commission meeting, also. 5 Do any of the Commission members have any 6 closing comments before we go into executive 7 session? 8 MR. DuBOSE: I would like to say what Mike 9 said about feasibility. I would like for this 10 Commission to keep an open mind about what it 11 believes to be the best possible solution and 12 address feasibility at the appropriate time and 13 not shy away from proposing what it believes to be 14 the best solution. 15 CHAIRMAN MORGAN: I think, as I said 16 earlier, our first priority is to find the facts. 17 And we've heard a lot of examples of where 18 injustices are being done, or people are waiting 19 too long for lawyers. 20 The rejoinder that we hear sometimes is 21 look, those are aberrations. In any system there 22 will be mistakes, but the system is fundamentally 23 sound. People will respond these aren't 24 aberrations, these are systemic. 25 And so I think one of the things that this KING COURT REPORTING SERVICE 138 1 Commission has to do, and that's what we're going 2 to be talking with Bob Spangenberg about, is how 3 do we go about rigorous and thorough objective 4 fact finding to get at is that one instance that 5 just happened to happen, or is it something that 6 is not uncommon and it's systemic? 7 I think, again, if our Commission is going 8 to make any contribution to this debate it's not 9 only our opinion about recommendations, but it's 10 the facts that we have found in our examination. 11 And so, okay. Again, thank you everybody 12 for coming and we are adjourned. 13 14 (Meeting adjourned at 12:18 p.m.) 15 16 17 18 19 20 21 22 23 24 25 KING COURT REPORTING SERVICE 139 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 9th day of October, 2001. 23 ________________________________ DIANE KING, CCR-B-1957 24 25 KING COURT REPORTING SERVICE