THE SPANGENBERG REPORT
Volume VI, Issue 1
August 2000
The Spangenberg Group
1001 Watertown Street, West Newton, Massachusetts 02465
Telephone: (617) 969-3820 Fax: (617) 965-3966
E-Mail: tsg@spangenberggroup.com
Planning for the Future of Public Defense: New Leadership, New Partnerships, New Strategies . . . . . . . . . . . . 1
News From Around the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Case Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Job Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Planning for the Future of Public Defense: New Leadership, New
Partnerships, New Strategies
by Jo-Ann Wallace and Scott Wallace
The Spangenberg Group invited Jo-Ann Wallace, Chief Counsel, and Scott Wallace, Director, of the National
Legal Aid and Defender Association, to prepare an article for The Spangenberg Report that highlights new
defender developments at NLADA.
On May 8, 2000 criminal justice system history
was made. It was not an event occasioned by
fanfare. It may not be recorded in the books our
children read about this country. But it is an event
that should be memorialized in the annals of equal
justice. For on that date, a void in the system was
filled. Until then, every type of chief executive in or
connected to the criminal justice system -- except
for public defense chiefs -- had a structured,
“official” entity through which its members were
educated and policies could be developed. There
are, for example, the National District Attorneys
Association, the International Association of Chiefs
of Police and the Conference of Chief Justices.
There are associations for governors, mayors and
sheriffs. These groups have a major national voice in
policy making and a permanent place in
Washington’s corridors of power.
Recognizing that indigent defense needed a
comparable leadership structure, public defense
chiefs from all across the country gathered in a room
overlooking the University of Minnesota to close the
leadership gap. It was marked by a simple voice
vote: “All in favor? [Ayes]. All opposed? [Silence].
It is unanimous.” The American Council of Chief
Defenders was born.
Although it is new, the American Council of
Chief Defenders (ACCD) did not spring up
overnight. It evolved from a growing group of
defender leaders that have been meeting informally
for several years. They began meeting at NLADA
events to apprise the Association of defender issues
across the country. These chief executives quickly
realized the value of sharing information with each
other. They could hear first-hand about other
jurisdictions’ issues and learn strategies to address
them in their own jurisdictions. They could get
concrete ideas for responding to managerial issues in
their offices from other experienced leaders who
shared both their successes and challenges. While
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 2
Volume VI, Issue 1
THE SPANGENBERG REPORT
the informal exchange of information and
networking will continue to be an important aspect
of the ACCD, NLADA plans to facilitate
information exchange and management support by
beginning a project this fall to create a management
database that will be accessible through the
Association's soon-to-be re-designed website. Once
complete, defender managers will be able to access
sample policies and other materials that will be
collected from defender offices across the country
through this resource databank. A “Chiefs” listserve
will be up and running shortly. A project to identify
every chief defender in the country and create a
contact database is already well under way.
Because no one else can speak with the same
authority on client issues and systemic fairness, the
defender chiefs have formed a committee to lead the
creation of an advocacy agenda through which the
ACCD will add their collective voices to national
policy discussions on indigent defense and criminal
justice. Plans are underway to develop a formal
media and public education network, supported by
training and technical assistance, to ensure that
Americans hear the voices of indigent defendants
and the communities from which they come. A
second committee, on “Problem Solving Courts,” is
working on standards for such courts and other
initiatives to encourage defender participation in the
design of specialty courts and the creation of fair
and effective problem-solving strategies that
safeguard individual rights and are consistent with
defender ethical obligations. The group is also
considering the development of a leadership “strike
force” to help chiefs in times of crisis, such as
sudden threats to funding or defender independence.
Defender Leaders Step Up
A few weeks ago, the newborn organization
took its first step. On July 17, 2000, the Board of
Directors of the National Legal Aid and Defender
Association (NLADA) voted unanimously to
recognize the ACCD as an official Section of the
organization. The American Council of Chief
Defenders is “dedicated to securing a fair justice
system by advocating sound public policy and
ensuring quality legal representation of indigent
people facing a loss of liberty or accused of a
crime.”
The American Council of Chief Defenders could
not have been created at a more appropriate time.
Indigent defense in America is poised at an
unprecedented moment – full of both challenge and
opportunity. Not since Gideon has there been such
a spotlight on indigent defense, and many persons
outside the system are horrified at what they have
seen. Leaders in indigent defense and criminal
justice have a great opportunity to convert the
public interest and concern into action and system
improvement. But we must act quickly, for the
window of opportunity may be small, and may close
fast.
Fortunately, we’re ready. The increased
attention and opportunity come at a time when
significant groundwork has been laid toward the
infrastructure, relationships and resources necessary
to effectuate change. The indigent defense
community is poised to move ahead into an era of
new leadership and new collaborations.
The ACCD will officially enter the public forum
in Washington, D.C. on August 29, 2000. At their
first official meeting, the top defender executives
will welcome the nation’s top justice official,
Attorney General Janet Reno. This historic meeting
will mark another high point in relations between the
Department of Justice and the indigent defense
community, going back to 1997, when Janet Reno
became the first United States Attorney General
since Robert F. Kennedy to express a major interest
in indigent defense. Indeed, the NLADA has been a
driving force in the high-level, national Symposiums
held over the last two years. One result of these
meetings has been to give judges, prosecutors,
legislators and others a sense of peer-community
investment in indigent defense issues, and the
Symposium and the themes emerging from it can lay
legitimate claim to being reflective of very broad
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 3
THE SPANGENBERG REPORT
justice-system buy-in. The results will be long
lasting, as they will be captured in a Symposium
report, an official publication of the United States
Department of Justice. One of the goals of the
report, which NLADA will help to write, is to
authoritatively convey the remarkable breadth and
commonality of interest regarding the need for
vibrant, independent public defense institutions,
adequately funded and standards-driven. A second
is to produce a report that every defender will want
to quote and have visible on the table next to them
when they testify at budget hearings, or make a case
for DNA resources, experts and investigators and
workload and salary parity.
[Ed. Note: The report on the first Symposium,
"Improving Criminal Justice Systems Through
Expanded Strategies and Innovative
Collaborations," which NLADA also helped author,
similarly addresses these issues. Printed copies are
almost exhausted, but it is available in text and PDF
formats on the DOJ website at
www.ojp.usdoj.gov/indigentdefense/pubs.htm). A
discussion of the second Symposium is found in this
issue of The Spangenberg Report.]
Planning and Partnering
Supporting defender leadership through the
ACCD and the Symposium is just one aspect of an
on-going planning process that NLADA is
coordinating to expand national capacity to promote
and support indigent defense services. The goal is
to build a national infrastructure to meet the needs
of indigent defense providers comprehensively and
effectively into the future. The process is grounded
in a firm belief that the only way to avoid wasting
any of the preciously few resources available to
support indigent defense is by maximizing strategic
partnerships. Thus, NLADA is seeking to enlist key
national organizations to create a joint work plan
that will set priorities, identify concrete and
collaborative strategies to address identified needs,
create new vehicles and partnerships for delivering
services and promote better communication among
the providers and with the field. With support from
the Open Society Institute, NLADA has invited
representatives from The Spangenberg Group, the
American Bar Association, the Justice Department,
the Vera Institute, Harvard's Executive Session on
Indigent Defense Systems, the National Association
of Criminal Defense Lawyers, and others to join
individuals from key constituencies at a September
meeting in Washington D.C. The group will be
seeking to expand the national capacity in six areas:
(1) improving public support for indigent defense,
(2) helping defender systems and programs expand
their resources and improve their services, (3)
building standards-driven defender systems in state
and local areas that lack defender program
infra-structure, (4) promoting innovation and
replicating "best practices," (5) harnessing the power
of technology, and (6) strengthening the voice of
defenders in public policy debates. Consideration
will be given to initiatives such as building a single
indigent defense “portal” on the web – one web site
linking, accessing and capable of searching all
indigent defense-related web sites, contents and
communications forums as if they were unified;
developing and delivering case-management tools to
build support for resources; and implementing a
comprehensive national strategy for delivering
technical assistance to the field.
The Public Weighs In
Much new work already has begun in each of the
areas. One of the most riveting and ground-breaking
presentations at the DOJ Symposium was a
presentation of new research on public opinion
toward the indigent defense function and the rights
of defendants. The research, presented by John
Russonello of the public opinion research firm
Belden, Russonello & Stewart and based upon a
series of eight focus group sessions around the
country, was sponsored by NLADA and funded by
the Open Society Institute.
The initial news is very good: Americans value
competent public defenders, as a matter of basic
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 4
Volume VI, Issue 1
THE SPANGENBERG REPORT
fairness. They feel that there is profoundly unequal
justice between rich and poor, and black and white.
They were unpleasantly surprised to learn of the
disparities between public appropriations for the
prosecution and defense and want public defenders
to have parity of resources, workload and salary
with prosecutors. They want national standards for
quality. And they can’t imagine demanding
competence without affording the necessary tools to
get the job done, such as investigators and expert
witnesses – just like a doctor needs the right
equipment and tests.
The Project is about to enter its second stage,
with NLADA considering the possibility of
following up this qualitative research with
quantitative research – i.e., national polling to assess
the specific strength of public support for concepts
like competent counsel, national standards, and
parity of funding. In any event, the ultimate goal is
to turn this information into practical messages,
materials and training that defenders can use to build
public support at the local, state and national level.
Training in the New Millennium
The world of defender training is undergoing
significant changes, and enormous opportunities lie
ahead. The Vera Institute pioneered a new breed of
leadership training – the National Defender
Leadership Project (“NDLP”), applying
public-sector management principles to a defender
agency’s relationship with its external environment
in the criminal justice system and the community.
With NDLP winding down, NLADA is committed
to continuing and building upon Vera's excellent
work. The NLADA has convened an advisory
group that includes individuals who have taught at
both NDLP and NLADA training events to
re-design NLADA's annual Defender Leadership and
Management Training, which will be offered next
spring.
New technology, as well as new partnerships,
offer opportunities to train limitless numbers of
defenders, including previously under-served or
unserved populations in remote or poorly funded
systems. Interactive web-based training is now
possible, for full CLE credit. Written materials,
audio or videotapes can be ordered or downloaded
from the web. Interactive CD-ROMs can teach skills
and substance even without the Internet. NLADA is
partnering with the premier CLE powerhouse, the
Practicing Law Institute, to harness these
technologies fully for the defender community. With
pro bono PLI support, NLADA is working on a
pilot project to develop web based training modules
that it anticipates will premier at the NLADA
Annual Conference in Washington this November.
With the justice system itself on public trial, and
a national focus on the importance of competent
attorneys, it is time to consider a truly national
defender training infrastructure. Congress already
has shown us the way by spending $26 million to
build a state-of-the-art National Advocacy Center in
Columbia, South Carolina, to train both federal and
local prosecutors. Each year, Congress appropriates
some $20 million to provide free training, including
room, board and travel, to prosecutors 52 weeks a
year. NLADA has asked the Attorney General’s
support for a comparable national facility for
defenders and has initiated a planning process to
design such a center to serve the training needs of
defenders, including supporting the development and
improvement of quality state, local and in-house
defender training programs.
Renewed Legislative Vigor
Congress has gone from being somewhat
irrelevant to state and local criminal justice systems
to being a dominant force. Whether through the
example it sets in federal law, through the
federalization of state offenses, through billions of
dollars in grants to states and localities, or proposals
for Constitutional change, congressional impact
cannot be ignored. And the current criminal justice
media focus and important legislative initiatives like
the innocence bills have heightened congressional
members’ awareness of indigent defense issues. As
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 5
THE SPANGENBERG REPORT
NLADA and the American Council of Chief
Defenders work to expand defender presence in the
executive branch, it is also an important time for it
to be heard in the legislative arena. Already
witnessing the collective clout of the ACCD with
passage by the House of defender student loan
forgiveness (in H.R. 4504; see
www.nlada.org/student%20loan.htm, NLADA's
Annual Conference will feature interactive and
demonstrative legislative training to support a
heightened defender “Hill” presence.
Stepping Up – Together
Not long ago, at a meeting of the group that has
now become the ACCD, Bob Spangenberg gave the
defender chiefs who were gathered a “pop quiz.”
He asked them to anonymously give their opinions
to the following questions. Should there be an
expanded national infrastructure to support indigent
defense? Should the NLADA take the lead in such
an endeavor? And should the Spangenberg Group,
the American Bar Association, the National
Association of Criminal Defense Attorneys and
others participate? The Chiefs overwhelmingly
responded yes to each question. NLADA is meeting
Bob's challenge. And we are confident that working
together we can build a better future for public
defense and the clients and communities we serve.b
News From Around the Nation
U.S. Department of Justice Hosts Second National
Symposium on Indigent Defense
On June 29 and 30, 2000, the U.S. Department
of Justice sponsored its second National Symposium
on Indigent Defense, in Washington, DC. The
Symposium brought together teams of criminal justice
system actors -- including public defenders,
prosecutors, judges, bar association representatives,
legislators, academics and others -- from each state to
attend two days of panels and workshops focusing on
indigent defense. This year’s Symposium built on the
momentum from last year’s inaugural symposium, held
in February 1999. In her remarks to the group,
Attorney General Janet Reno outlined six key areas of
focus to strengthen indigent defense programs in the
country.
First, Ms. Reno spoke of the need to recognize
that indigent defense services, and individual
defenders, are a crucial part of the criminal justice
system. Ms. Reno spoke of the need to involve
defenders when planning new initiatives, such as a new
drug court or a re-entry program. “When we do statewide or county-wide planning on criminal justice, we
have to ensure that we provide the same level of
support and oversight for indigent defense services
that we provide for other agencies and functions, or
our criminal justice system will not be a system and it
won’t work.”
Second, Ms. Reno called for implementation of
standards for indigent defense that cover, among other
things, skills, experience and appropriate workloads
for indigent defense offices. She praised the Indiana
model whereby the Indiana Public Defender
Commission reimburses counties for a portion of their
indigent defense costs when the counties comply with
certain minimum standards designed to improve the
quality of indigent defense.
Third, Ms. Reno said that sufficient resources
must be devoted to indigent defense. As an example,
she noted her efforts to encourage Congress to
appropriate funds to pay court-appointed attorneys at
least $75 an hour in federal cases.
Fourth, Ms. Reno said that the indigent defense
community should be given training and technical
assistance on par with that received by federal, state
and local prosecutors.
Fifth, Ms. Reno noted the importance of gaining
a better understanding of how well (or how poorly)
indigent defense systems in the country are faring. She
noted that the last national survey on indigent defense
was conducted 20 years ago, and that another survey
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 6
Volume VI, Issue 1
THE SPANGENBERG REPORT
is currently under way with funding from the
Department of Justice.
Finally, she stressed that although ours is an
adversarial justice system, there must be collaboration
among public defenders, judges, prosecutors, police,
corrections officials, legislators, county budget
officials, bar leaders and academics to solve problems
in the criminal justice system.
Panels and workshops at the symposium covered
a range of issues, including: juvenile defender and
mental health programs, task forces to improve
statewide indigent defense programs, the use of
standards and guidelines in indigent defense programs,
and the criminalization of poverty. There was also
discussion of the impact upon indigent defense
programs of current hot-button issues, such as racial
disparities in law enforcement and the growing public
awareness of the problem of wrongful convictions
through DNA evidence.
Attorney General Reno’s full speech is on the
OJP’s website, at http://www.ojp.usdoj.gov/ (click
through “Indigent Defense Resources”). b
Major Changes in Store for Mississippi’s Indigent
Defense System
Legislative action in Mississippi will result in
several major changes to that state’s indigent defense
system, effective July 1, 2000. Two new offices
responsible for capital defense will be created, while
the Mississippi Statewide Public Defender Act of 1998
has been repealed.
The Mississippi Statewide Public Defender Act
of 1998 established a statewide commission on
indigent defense, a position of Executive Director, and
a office of District Defender in all circuit districts. As
enacted, the Act should have resulted in a statewide,
state-funded system for representing indigent
defendants in felony cases. The District Defender
offices were never funded, however, and the Act has
now been repealed. Instead of felony trial-level
representation, the Mississippi Legislature has created
the Mississippi Office of Capital Defense Counsel and
the Mississippi Capital Post-Conviction Office.
The new Mississippi Office of Capital Defense
Counsel will have four attorneys, two investigators,
one fiscal officer and two secretaries/paralegals. The
program will represent indigent defendants in capital
trial and direct appeal proceedings. The director of the
office will have discretion to appoint outside counsel
to provide representation for defendants with whom
the office has a conflict of interest and to handle cases
the office cannot properly handle due to its caseload
level. Funds for such counsel, and any experts or
investigators they require, will come from a newly
created Capital Defense Counsel Special Fund.
The Mississippi Office of Capital PostConviction Counsel will represent indigent inmates
under sentence of death in post-conviction
proceedings in Mississippi. The office may continue
to represent said individuals in federal habeas corpus
proceedings if the office is appointed to do so by a
federal court. The legislation creating the Office of
Capital Post-Conviction Counsel provides for
appointment of a director but does not specify the
number of staff he or she may hire. The fees and
expenses for counsel appointed in the event of
conflicts or case overload is to be paid from a newlycreated Special Capital Post-Conviction Counsel
Fund.
Salaries in the two offices are addressed by the
legislation. In both instances, the directors are to be
paid “no more than the maximum amount allowed by
statute for a district attorney,” and “other attorneys in
the office shall be compensated at no more than the
maximum amount allowed by statute for an assistant
district attorney.”
According to the legislation, court-appointed
counsel in capital post-conviction cases are to be paid
“at an hourly rate not to exceed eighty percent (80%)
of the hourly rate allowed in the United States District
Courts of the Northern and Southern Districts of
Mississippi to attorneys appointed to represent
defendant seeking habeas corpus relief.” The statute
codifies waiveable caps of $7,500 in attorneys fees and
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 7
THE SPANGENBERG REPORT
$2,500 in expenses for experts and investigation in
such court-appointed cases.
In addition to creating the two new offices and
abolishing the statewide public defender program, the
new law calls for creation of the Mississippi Public
Defender Task Force, which is charged with studying
indigent defense in Mississippi and reporting to the
legislature in late September 2000. The Task Force
will be composed of eleven members:
(a) The President of the Mississippi Public
Defender Association, or a designee;
(b) The President of the Mississippi Prosecutors
Association, or a designee;
(c) A representative of the Administrative Office
of Courts;
(d) A representative of the Mississippi Supreme
Court;
(e) A representative of the Conference of Circuit
Judges;
(f) A representative of the Mississippi Attorney
General's Office;
(g) A representative of the Mississippi
Association of Supervisors;
(h) The Chairman of the Senate Judiciary
Committee, or a designee;
(i) The Chairman of the Senate Appropriations
Committee, or a designee;
(j) The Chairman of the House Judiciary En
Banc Committee, or a designee;
(k) The Chairman of the House Appropriations
Committee, or a designee.
The duties of the task force are to:
(a) Make a comprehensive study of the needs by
circuit court districts for state-supported indigent
defense counsel, examining existing public defender
programs;
(b) Examine and study approaches taken by
other states in the implementation and costs of statesupported indigent criminal cases; and
(c) [S]tudy the relationship between presiding
circuit court judges and the appointment of criminal
indigent defense counsel. b
Chief Justice of the Alabama Supreme Court Appoints
Committee to Study the Provision of Indigent Defense
Services
In April 2000, the Chief Justice of the Alabama
Supreme Court, Perry O. Hooper, Sr., appointed a
special committee to examine the procedures for
providing representation to indigent defendants in
Alabama. As chairman of the Alabama Judicial
System Study Commission (a statutorily created body
that addresses systemic justice issues), the Chief
Justice formed the committee “to study the state’s
current system for providing defense services ... in the
trial and appellate courts and to make
recommendations ... as to what direction the state
should take in providing future indigent defense
services.” The committee was directed to make its
recommendations with consideration given for both
the quality and cost effectiveness of such services. The
committee consists of circuit and district court judges,
juvenile and municipal judges, court administrators,
district attorneys, public defenders, circuit clerks,
legislative representatives, and representatives from
the Alabama State Bar Association.
Currently, indigent defense services in Alabama
vary from county to county. While three of the state's
67 counties operate public defender offices, the rest
rely upon either appointed counsel or contract
attorneys. Funding for indigent defense in Alabama
comes from the Fair Trial Tax Fund, which consists of
fees that are added to the filing fee in civil cases, as
well as costs in criminal cases. The Fair Trial Tax
Fund is designed to reimburse counties for all indigent
representation. If revenues from the Fair Trial Tax
Fund are insufficient to cover the counties' costs, the
state provides funds to cover the deficit.
The Fair Trial Tax Fund has never produced the
amount of revenue it was originally projected to
generate. Rising caseloads, among other factors, have
caused the amount of state supplemental funding to
grow with each passing year. In FY 1999, the state
had to supplement the Fair Trial Tax by $12,228,000,
or more than 58% of the total cost for indigent
defense services in the state ($21,015,005). The
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 8
Volume VI, Issue 1
THE SPANGENBERG REPORT
supplemental funding is expected to increase by more
than 11% at the end of FY 2000 (up to $13,600,000).
Several recent changes to the funding of indigent
defense services have further impacted the statewide
expenditure. Last year, Alabama increased the rates it
pays to court-appointed counsel for the first time in
two decades, raising the hourly rates and lifting some
fee caps in two increments. In 1999, the rates rose
from $20/hour out-of-court and $40/hour in-court, to
$30/hour and $50/hour, respectively. A second raise,
scheduled to occur on October 1, 2000, will raise the
rates to $40/hour out-of-court and $60/hour in-court.
Also, a recent Alabama Supreme Court decision
authorized court appointed counsel to charge
overhead costs in addition to hourly fees.
The anticipated impact of these changes on
indigent defense funding has caused many policy
makers to consider the creation of a statewide public
defender system. In 1988-89, The Spangenberg
Group conducted a comprehensive study in Alabama,
under the auspices of the American Bar Association’s
Bar Information Program. That study ultimately
recommended the establishment of a state indigent
defense commission and the implementation of a
statewide public defender system.
Those
recommendations were not adopted, however, due in
large part to the cost of such a system as compared to
the court-appointed counsel and contract programs in
place at the time of the study.
The committee had its first meeting in May
2000. The committee plans to submit recommendations to the Judicial Study Commission by the end
of calendar year 2000 and to begin to implement the
recommendations in January 2001. b
Illinois Task Force Issues Report Finding the Criminal
Justice System in Crisis and Recommends State Funds
Be Used to Assist Counties in Providing Indigent
Defense Services
On May 12, 2000, the Task Force on
Professional Practice in the Illinois Justice System
issued a report finding the Illinois criminal and juvenile
justice systems to be in “crisis.” The task force
consists of 19-members appointed by the Governor,
the Senate, the House, the Supreme Court, the State
Bar, the Attorney General, public defender offices,
district attorney offices, and others. To alleviate the
most critical issue, defined by the Task Force as “the
inexperienced prosecuting cases against the
overwhelmed,” the first recommendation states: “the
State of Illinois and its 102 counties must develop a
partnership to discharge the state’s obligation to
provide competent counsel.” Other recommendations
include: reducing the burden of attorney student loans
through a loan-forgiveness program; increasing
salaries for public defenders and state’s attorneys;
improving the pension plan for criminal justice
employees; developing a pilot program for a statewide
criminal justice case-tracking system; and, establishing
an expert witness fund for partially indigent clients.
The number one recommendation calls for state
money to partially fund indigent defense at the trial
level. This is especially significant because the Task
Force was created to study issues affecting the
professional development in both the defense and
prosecution functions. Though state funding currently
is used to reimburse Illinois counties two-thirds of
states attorneys’ salaries, funding for trial level
representation of indigents in all non-capital cases is
wholly a county responsibility. The state funds the
Office of State Appellate Defender, which has five
regional offices throughout the state and handles the
majority of direct appeals, and state money was
appropriated during the last legislative session to cover
the cost of death penalty representation in the
counties. Still, no state money is currently
appropriated for trial level, non-capital cases.
The Task Force report highlights several
problems resulting from the systemic underfunding of
the defense function, including: indigent defense
caseloads far in excess of national standards; high
turnover in public defender offices due to low pay; and
ever-increasing demands on public defenders due to
unfunded mandates in the form of new public acts
affecting the juvenile and criminal justice systems.
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 9
THE SPANGENBERG REPORT
Task Force Survey of Public Defenders
The findings were based, in part, on a 23question survey devised by the task force and
distributed to the public defenders in each of Illinois’
102 counties by Illinois State Bar personnel.
Currently, the majority of counties have county-funded
public defender offices (by statute, counties with
populations of 35,000 or more are required to have a
public defender); the balance use either contract
defenders or assigned counsel. The survey asked a
broad range of questions related to the delivery of
indigent defense services, including questions about:
public defender caseloads, attorney staffing, attorney
turnover, salaries, benefits, and available technology.
Additionally, the survey asked about the need for
statewide indigent defense standards, mandatory
continuing legal education and statewide oversight of
defender services. A supplemental one-page survey
instrument requested information on public defender
support staff (staffing levels and salaries) and
expenditure data. The Illinois State Bar received 70
responses to the main survey, a response rate of more
than 68%. The survey analysis was conducted by The
Spangenberg Group under a project jointly funded by
the American Bar Association and the U.S.
Department of Justice, Bureau of Justice Assistance,
called the State Commissions Project.
Public Defender Caseloads in Illinois: A Closer Look
The only national source that has attempted to
quantify a maximum annual public defender caseload
is the National Advisory Commission (NAC), which
published its standards in 1973. In that report,
Standard 13.12 on Courts states:
The caseload of a public defender attorney
should not exceed the following: felonies
per attorney per year: not more than 150;
misdemeanors (excluding traffic) per
attorney per year: not more than 400;
juvenile court cases per attorney per year:
not more than 200; Mental Health Act
cases per attorney per year: not more than
200; and appeals per attorney per year: not
more than 25.
Commentary to Standard 5-5.3 of the ABA
Standards for Criminal Justice Providing Defense
Services (3d ed., 1992) notes that the NAC standards
“have proven resilient over time, and provide a rough
measure of caseloads.”
In the summer of 1994, the MacArthur Justice
Center conducted a statewide survey of public
defenders in 101 of Illinois counties (the survey
excluded Cook County). Though the questions asked
in the MacArthur survey varied from those in the Task
Force study, several important comparisons can be
drawn between the two surveys. In the summary to its
1994 survey, the MacArthur Justice Center raise a
number of concerns, most notably that approximately
75% of public defender offices were exceeding
national caseload standards (36 of the 48
respondents). The MacArthur summary concluded:
“In some instances, public defender workloads are
many times over the ABA maximum. Of the counties
with caseloads greater than the ABA recommended
maximum, one half have caseloads that exceed the
ABA maximum by at least 50%.”
The Task Force survey showed that the concerns
raised in the MacArthur survey six years ago are still
relevant in Illinois today.
In Illinois, counties with populations between
25,000 and 100,000 have average annual caseloads of
474 cases, exceeding the national caseload standard
for misdemeanors alone (400) despite the fact that the
Illinois public defender caseload is a mix of felony,
misdemeanors, juvenile and other cases.
Another factor should be weighed when
comparing Illinois public defender caseload numbers
with the national standards. More than 68% (47 of
69) of the respondents stated that the Chief Public
Defender in their county was allowed to have a private
practice in addition to his or her public defender
duties. Respondents in 36% (25 of 69) counties stated
that assistant public defenders could have an outside
practice, also. Therefore, the caseload numbers as
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 10
Volume VI, Issue 1
THE SPANGENBERG REPORT
revealed in the survey do not take into account the
private work public defenders are performing in
addition to their public defense caseloads.
For more information on the joint U.S.
Department of Justice, Bureau of Justice
Assistance/American Bar Association, Bar Information
Program State Commissions Project please contact us
at TSG@spangenberggroup.com or call us at (617)
969-3820. b
Chief Judge for the District of Columbia Superior
Court Issues Orders Affecting Court Appointed
Counsel
In May 2000, District of Columbia Superior
Court Chief Judge Eugene Hamilton, issued two
administrative orders aimed at producing more
efficiencies within the court-appointed counsel system.
Administrative Order no. 00-18 states that, beginning
in June 2000, “no claim for compensation or
reimbursement for matters in the District of Columbia
Superior Court ... shall be honored, if such claim is not
filed within sixty days following the termination of
representation.” No exceptions will be made except in
documented instances in which it is impossible to file
a claim due to physical or mental incapacity or death
of the attorney. The second order, no. 00-19,
established an ad hoc committee to create panels of
attorneys for appointment to indigent defense cases in
the Superior Court. The committee is ordered to
recommend a panel of no more than 250 attorneys to
handle cases prosecuted by the United States and a
second panel of no more than 100 attorneys to
represent indigent defendants in criminal cases brought
by the District of Columbia. This is a substantial
reduction from the number of attorneys previously
accepting indigent defense appointments.
In the District of Columbia, federal funds pay for
all indigent defense services. Representation in felony
cases is generally provided by Public Defender
Services (PDS), a private, nonprofit public defender
organization overseen by a board of trustees. By
statute, PDS can receive up to 60% of all indigent
cases, but traditionally the organization has handled far
fewer. PDS’s relative percentage of the indigent pool
increases as the seriousness of the crime increases,
however PDS handles roughly 60% of all DC
homicide cases, 40% of all other serious felonies, 30%
of serious juvenile delinquency cases, and 25% of less
serious felony cases. The remaining cases are handled
by private attorneys through a court-appointed
program administered by PDS.
Several events prompted the changes to the
court-appointed system. Under the Prompt Payment
Act, federal agencies are required to pay vendors
within 30 days of receipt of an invoice. Despite this
requirement, court-appointed attorneys were not paid
for several months in 1999, prompting lawsuits by
court-appointed attorneys and a Congressional audit
of the program. The audit found poor bookkeeping
practices in the Superior Court administration,
including the use of court-appointed attorney funds to
pay other court bills.
Prior to the administrative order, attorneys were
required to submit vouchers within sixty days of the
termination of representation, but requests for waiver
of the sixty-day time limit were regularly sought in a
growing number of cases. According to Order no.
00-18, “it is not unusual for requests for waiver to
exceed the sixty-day time limit by months, and there
have been recent instances where the time limit has
been exceeded by years.” Noting that such untimely
claims undermine the Court's budgetary efforts, the
order essentially ends any extension except
in extreme circumstances.
Though the orders do address issues of
efficiencies, some court-appointed attorneys think that
the new regulations will not allow them to be paid any
quicker. In a move criticized as undermining the
Prompt Payment Act, Chief Judge Hamilton ordered
judges not to consider a court-appointed voucher as
“received” until it had been formally “approved”,
which effectively extends the date on which the
payment must be made. b
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 11
THE SPANGENBERG REPORT
North Carolina Legislature Gives Green Light to New
Statewide Indigent Defense Program
In July 2000, the North Carolina General
Assembly enacted the Indigent Defense Services Act
of 2000, which creates an independent agency within
the state's Judicial Department called the Office of
Indigent Defense Services (the "Office") and includes
a 13-member Commission on Indigent Defense
Services (the "Commission"). The Office and
Commission will have broad authority over the
delivery of indigent defense services in North Carolina.
The stated purpose of the act is to: “(1) Enhance
oversight of the delivery of counsel and related
services provided at State expense; (2) Improve the
quality of representation and ensure the independence
of counsel; (3) Establish uniform policies and
procedures for the delivery of services; (4) Generate
reliable statistical information in order to evaluate the
services provided and funds expended; and (5) Deliver
services in the most efficient and cost-effective manner
without sacrificing quality representation.”
The legislation requires persons appointed as
members of the Commission to have significant
experience in criminal defense or a strong commitment
to quality indigent defense representation. The
Commission's members will be appointed as follows:
The Chief Justice of the North Carolina Supreme
Court will appoint one member, who is an active or
former member of the North Carolina judiciary.
The Governor will appoint one member, who is
a non-attorney.
The General Assembly will appoint one member
recommended by the President Pro Tempore of the
Senate and one member recommended by the Speaker
of the House of Representatives.
The North Carolina Public Defenders
Association, the North Carolina State Bar, the North
Carolina Bar Association, the North Carolina
Academy of Trial Lawyers, the North Carolina
Association of Black Lawyers and the North Carolina
Association of Women Lawyers will each appoint one
member (with no restrictions).
The Commission will appoint three more
members, who must reside in different judicial districts
from one another. One appointee must be a
non-attorney, and one appointee may be an active
member of the North Carolina judiciary. One
appointee must be Native American.
The chief responsibility of the Commission is to
develop and improve programs by which the Office of
Indigent Defense Services provides legal
representation to indigent persons. The Commission
will appoint the Director of the Office of Indigent
Defense Services, who will be chosen on the basis of
training, experience, and other qualifications. The
Commission will consult with the Chief Justice and
Director of the Administrative Office of the Courts in
selecting a Director, but will have final authority in
making the appointment. The Commission will
develop standards governing the provision of services
under the Indigent Defense Services Act. The
standards will include:
• Standards for maintaining and operating
regional and district public defender offices
and appellate defender offices, including
requirements regarding qualifications, training,
and size of the legal and supporting staff;
• Standards prescribing minimum experience,
training, and other qualifications for appointed
counsel;
• Standards for public defender and
court-appointed attorney caseloads;
• Standards for the performance of public
defenders and appointed counsel;
• Standards for the independent, competent, and
efficient representation of clients whose cases
present conflicts of interest, in both the trial
and appellate courts;
• Standards for providing and compensating
experts and others who provide services
related to legal representation;
• Standards for qualifications and performance in
capital cases; and
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 12
Volume VI, Issue 1
THE SPANGENBERG REPORT
• Standards for determining indigency and for
assessing and collecting the costs of legal
representation and related services.
The Commission will also be responsible for
determining the methods for delivering legal services
to indigent persons eligible for legal representation
under the Act and will establish in each district or
combination of districts a system of appointed counsel,
contract counsel, part-time public defenders, public
defender offices, appellate defender services, and other
methods for delivering counsel services, or any
combination of these services.
The Commission is required to establish policies
and procedures with respect to the distribution of
funds appropriated under the Act, including rates of
compensation for appointed counsel, schedules of
allowable expenses, appointment and compensation of
expert witnesses, and procedures for applying for and
receiving compensation. The Commission will approve
and recommend to the General Assembly a budget for
the Office of Indigent Defense Services. The
Commission will adopt other rules and procedures as
it deems necessary for the conduct of business by the
Commission and the Office of Indigent Defense
Services.
The Director of Indigent Defense Services will:
(1) prepare and submit to the Commission a proposed
budget for the Office of Indigent Defense Services, an
annual report containing pertinent data on the
operations, costs, and needs of the Office, and such
other information as the Commission may require; (2)
assist the Commission in developing rules and
standards for the delivery of services under the Act (3)
administer and coordinate the operations of the Office
and supervise compliance with standards adopted by
the Commission; (4) hire professional, technical, and
support personnel deemed reasonably necessary for
the efficient operation of the Office of Indigent
Defense Services; (5) keep and maintain proper
financial records for use in calculating the costs of the
operations of the Office of Indigent Defense Services;
(6) apply for and accept on behalf of the Office of
Indigent Defense Services any funds that may become
available from government grants, private gifts,
donations, or bequests from any source; (7) coordinate
the services of the Office of Indigent Defense Services
with any federal, county, or private programs
established to provide assistance to indigent persons in
cases subject to the Indigent Defense Services Act and
consult with professional bodies concerning improving
the administration of indigent services; (8) conduct
training programs for attorneys and others involved in
the legal representation of persons subject to this Act;
and (9) perform other duties as the Commission may
assign.
The Office will begin with a staff of five: a
Director, Chief Financial Officer, Information Systems
Manager, Research Analyst and Administrative
Assistant. Absent a veto by the Governor, the Act
goes into effect immediately, with the first
Commission meeting set for October 1 and full
operations of the Office and Commission beginning
July 1, 2001.
In North Carolina, the state pays for all indigent
defense expenditures, but until now, counties have had
the responsibility of organizing trial-level
representation. Of North Carolina's 100 counties, 11
have public defender offices; the rest use assigned
counsel or contract defenders. Appellate
representation is provided by the State Appellate
Defender. Under the new legislation, a legislative act
is still required to establish a new or abolish an existing
public defender office.
The Indigent Defense Services Act is largely the
result of efforts of a joint study commission created in
1999 which was broadly representative of the three
branches of government, the bar, and others interested
in the delivery of indigent defense services in North
Carolina. The study commission was greatly aided by
John Rubin, professor with the Institute of
Government at the University of North Carolina in
Chapel Hill. The Institute helps legislatively-authorized
study committees conduct research, analyze data, and
shape recommendations on various public policy
issues. Additional assistance was provided by The
Spangenberg Group, under the auspices of the joint
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 13
THE SPANGENBERG REPORT
U.S. Department of Justice, Bureau of Justice
Assistance and American Bar Association, Bar
Information Program State Commissions Project. b
National Committee to Prevent Wrongful Executions
Created
Former Florida Supreme Court Chief Justice
Gerald Kogan announced the formation of the
National Committee to Prevent Wrongful Executions,
on May 11, 2000. According to the Committee's press
release, recent events motivated the creation of this
organization, such as the moratorium on executions in
Illinois by Governor George Ryan; television news
programs detailing stories of individuals on death row
denied DNA testing; poor representation of defendants
in Texas; and the recent cutbacks in the courts review
of wrongful conviction claims. Kogan will chair the
organization, which is composed of former judges,
prosecutors, police and prison chiefs, as well as
scholars, journalists and religious leaders. Former FBI
Director William Sessions and Beth Wilkinson, lead
prosecutor of Timothy McVeigh, are also members of
this committee. The National Committee to Prevent
Wrongful Executions is an initiative of The
Constitution Project, an organization that strives to
create bipartisan solutions to constitutional and
governmental problems. The organization takes no
official stance on the death penalty and will not
sponsor any legislation.
The National Committee to Prevent Wrongful
Executions intends to examine the United States
criminal justice system and possible measures to
prevent wrongful convictions and executions. Charles
F. Baird, former Judge of the Texas Court of Criminal
Appeals and member of the newly-formed committee
stated : “After serving on the highest criminal court in
Texas and seeing my state execute more people than
all other states combined, I am convinced that
individuals have been and will be executed without
having their constitutional rights vigorously protected
and enforced. Those executions were wrong. I joined
the Committee to Prevent Wrongful Executions in an
effort to ensure that the rights of those accused of
capital crimes are guaranteed, and that only those who
are both guilty of the crime and deserving of the
ultimate punishment are executed.”
The National Committee's mission statement
mentions that the increasing availability of DNA
evidence for capital defendants is sabotaged by the
“New federal and state restrictions (that) include short
filing deadlines, limits on evidentiary hearings that may
preclude defendants from presenting new evidence,
and other procedural hurdles that prevent
consideration of the merits of cases.” The committee
will focus on greater access to DNA testing,
competent lawyering, and integrity for both
prosecution and law enforcement in order to prevent
wrongful capital convictions. It will create consensus
guidelines on representation reforms and present these
topics through public education programs. b
Congress Considers Several Reforms to Capital
Punishment
With the recent nationwide focus on the death
penalty, three pieces of legislation regarding capital
punishment are currently pending in the United States
Congress.
Innocence Protection Act of 2000
On June 7, 2000, Senator Patrick Leahy (D-VT)
reintroduced his Innocence Protection Act (S. 2690,
106th Cong., 2nd Sess. (200) [originally introduced
February 10, 2000 as S. 2073]; H.R. 4167, 106th
Cong., 2nd Sess. (2000)) with Senator Gordon Smith
(R-OR). Leahy described the act as “a carefully
crafted package of criminal justice reforms designed to
protect the innocent and to ensure that if the death
penalty is imposed, it is the result of informed and
reasoned deliberation, not politics, luck, bias or
guesswork.” The bill provides for greater access to
DNA testing, published annual reports by the Justice
Department on the administration of capital
punishment, greater compensation for the unjustly
condemned, and the option for juries in Federal death
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 14
Volume VI, Issue 1
THE SPANGENBERG REPORT
penalty prosecutions to recommend life imprisonment
without parole.
The bill also proposes important changes in the
representation of capital defendants. The bill
recommends amendments to the Byrne grant program,
which provides Federal financial assistance for crime
and violence prevention and control. The amendments
would cap a state’s Byrne grant funding at the FY
2000 level (plus $50 million) until “the State has
established and maintains an effective system for
providing competent legal services to indigents at
every phase of a State criminal prosecution in which a
death sentence is sought or has been imposed.” The
bill also proposes to alter the ways in which attorneys
are appointed to represent indigent defendants facing
capital charges. Rather than relying on individual
judges to make appointments, the bill calls for “a
centralized and independent appointing authority”
that will recruit and appoint attorneys for capital cases.
These attorneys would have to meet qualification and
performance standards drafted by the independent
appointing authority. The bill also proposes greater
compensation for private attorneys on an hourly,
reasonable basis and the reimbursement of private
attorneys and public defender organizations for
attorney expenses and costs involved in a death
penalty case.
The National Moratorium Act of 2000
Senators Russell Feingold (D-WI) and Carl
Levin (D-MI), co-sponsors of the Innocence
Protection Act, recently introduced legislation for a
national moratorium on the death penalty, S. 2463,
106th Cong., 2nd Sess. (2000). The National Death
Penalty Moratorium Act of 2000 advocates a
moratorium at the Federal and State levels “until a
National Commission on the Death Penalty studies its
use and policies ensuring justice, fairness, and due
process are implemented.” The bill notes that the poor
are more likely to receive a death sentence, and that
“no state has met standards developed by the
American Bar Association (ABA) for appointment,
performance, and compensation of counsel for
indigent prisoners.” This bill also reiterates the
documented evidence of racial bias in application of
death sentencing: “Although African-Americans
constitute only 13 percent of the American population,
since 1976 African-Americans (have) account(ed) for
35 percent of those executed, 43 percent who wait on
death row nationwide, and 67 percent of those who
wait on death row in the Federal system.” The bill
also focuses on recent cutbacks in prisoner appeals,
especially for prisoners presenting “compelling
evidence of innocence.”
The bill proposes the creation of a commission to
present findings and recommendations regarding the
current state of the capital system to Congress.
Fifteen members would be appointed by the President,
in conference with the Attorney General and the
Chairs and Ranking Members of the Committees on
the Judiciary of the House of Representatives and the
Senate, to “conduct a thorough study of all matters
relating to the administration of the death penalty to
determine whether it comports with constitutional
principles and requirements of fairness, justice,
equality, and due process.”
Accuracy in Judicial Administration Act of 2000
Representative Jesse L. Jackson, Jr. (D-IL)
reintroduced legislation April 14th, 2000 for a
temporary moratorium on the death penalty “to assure
that persons (who) are able to prove their innocence
are not executed.” The bill, H.R. 4162, 106th Cong.,
2nd Sess. (2000), proposes a temporary moratorium on
both Federal and State levels while standards are
drafted by the Attorney General to “provide
overwhelming confidence that innocent parties will not
suffer the death penalty.” The standards would
include procedures to make certain each defendant has
the opportunity for pretrial discovery of forensic
evidence in the possession of the prosecuting
authority. The standards would also establish a
complete opportunity for defendants to produce any
evidence (such as DNA) that was unavailable at the
time of trial in which the death sentence was imposed;
it would also allow for a nullification of the conviction
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 15
THE SPANGENBERG REPORT
and capital sentence if, in post conviction procedures,
a review of evidence indicates a reasonable doubt of
the defendant's guilt.b
FBI Reports Eighth Consecutive Annual Decrease in
Serious Crime Nationwide
The Federal Bureau of Investigation's Uniform
Crime Reporting (UCR) Preliminary Annual Report
indicates a seven percent decline in serious crime,
when compared to 1998 totals. This report only
reflects the incidents actually reported to law
enforcement. Law enforcement agencies in all regions
reported declines in their respective crime totals.
The preliminary report indicates the drop in
serious crime is due to the seven percent decrease in
both violent and property crimes. According to the
UCR system, violent crimes include murder, forcible
rape, robbery, and aggravated assault. Within the
violent crime category, murder and robbery both
recorded 8 percent drops, the largest decreases in this
category. All regions exhibited a decrease in the
amount of murders for 1999. The South reported the
greatest drop, ten percent. The Midwest and the West
each reported a seven percent drop; the Northeast a 4
percent drop. Forcible rape and aggravated assault
both decreased by 7 percent.
Property crimes consist of burglary,
motor-vehicle theft, and larceny-theft. Burglary
decreased the most (by 11 percent); motor vehicle
theft by 8 percent; and larceny-theft by 6 percent.
Arson is not included in property crime category, yet
is included in the Modified Crime Index total. It
dropped 5 percent in 1999.
Cities nationwide reported drops in serious
crime. Cities with 25,000 to 99,999 inhabitants
recorded an 8 percent decrease; cities with over
500,000 in population registered the smallest decrease
of 6 percent. At the county level, suburban counties
registered an 8 percent decline in serious crime, and
rural counties a 7 percent drop.
The UCR 1999 Preliminary Annual Report is
available at www.fbi.gov . Final figures from the
Uniform Crime Reporting Program will be available
this fall. The FBI's UCR Program compiles statistics
submitted each year by over 17,000 city, county, and
state law enforcement agencies; the UCR publishes
this information annually in Crime in the United
States. b
Gains Achieved by Georgia Indigent Defense Council
in 2000 Legislative Session
Increased state appropriations, the expansion of
an alternative funding program, and approval to hire a
new mental health specialist for the death penalty
division were all hailed by representatives of the
Georgia Indigent Defense Council as significant gains
during the most recent legislative session.
The Georgia Indigent Defense Council (GIDC),
first created by the Georgia General Assembly in 1979,
is charged with providing technical and research
assistance, clinical and training programs, and
administrative support to local programs and attorneys
who represent indigent defendants. Since 1989, GIDC
has distributed state funds to those counties that meet
its guidelines for the operation of local indigent
defense programs. The guidelines concern, among
other things: timely appointment of counsel, indigency
determination, hiring of contract defenders, fees for
court-appointed attorneys, procedures to assure the
independence of court-appointed counsel, and
caseload levels. During the most recent legislative
session, GIDC received an FY2000 supplemental
increase of $240,000, an increase of nearly six percent
(from $4,100,000 to $4,340,000). State funding for
assistance to counties will increase nearly 13% for
fiscal year 2001, up $550,000 to almost $4.9 million.
In addition to the state appropriation, GIDC
receives non-general-fund assistance from the Clerks
and Sheriff’s Trust Account. The clerks of Georgia's
superior, state and magistrate courts must deposit
funds paid in for security or judicial disposition into an
interest-bearing trust account. Similarly, sheriffs
holding cash bonds must likewise deposit the funds
into a trust account. All interest accrued on these
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 16
Volume VI, Issue 1
THE SPANGENBERG REPORT
accounts is transferred to GIDC and is redistributed to
the counties complying with GIDC standards.
Beginning in July 2000, the state’s 96 probate courts
handling criminal and traffic matters will join the
Clerks and Sheriff’s Trust Account program. The
impact of the expansion of the program on GIDC's
funding is not known, but last year the program
collected more than $1.3 million.
Finally, GIDC has a separate, state-funded death
penalty division, the MultiCounty Public Defender,
which provides direct representation and support in
capital cases at the trial and direct appeal levels
throughout the state. The legislature also approved
funding to hire a mental health specialist to assist the
MultiCounty Public Defender in death penalty cases.
b
Case Notes
Second Circuit Says There Is No per Se Rule that a
Defense Attorney Must Advise Client on Plea
The U.S. Court of Appeals for the Second
Circuit ruled that counsel must give advice relevant to
the plea decision, but must leave the final decision up
to the client. Purdy v. United States, No. 99-2461 (2d
Cir., March 27, 2000). As measured against the
performance prong of the Sixth Amendment test for
counsel effectiveness, the court stated counsel’s
decision on how to give enough information without
coercing the ultimate plea “enjoys a wide range of
reasonableness.”
The petitioner, after being convicted of violating
a federal anti-kickback law, sought habeas relief on
the ground that counsel violated the Sixth Amendment
by failing to convey certain information from the
prosecutor relevant to the decision of whether to plead
guilty, and by not giving him specific advice on
whether or not he should plead guilty. The Appeal
Court agreed with the District Court and held that
there was no per se rule requiring a duty to advise his
or her client to plead guilty.
The Court held that while counsel must give
advice relevant to the plea decision, the final decision
must be left to the defendant. The court declared that
“... reasonable professional conduct does not under all
circumstances require a lawyer to give an explicit
opinion as to whether a client should take a plea
offer.”
The Court distinguished the present case from
Boria v. Keane, 99 F.3d 492 (1996). In Boria, the
Court relied on the ruling in an earlier case, Von
Moltke v. Gillies, 332 U.S. 708, 721 (1948), that a
defense lawyer must “make an independent
examination of the facts, circumstances, pleadings and
laws involved and then... offer his informed opinion as
to what plea should be entered.” In the present case,
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 17
THE SPANGENBERG REPORT
the difference between the sentencing range
contemplated by the plea offer and the range the
petitioner faced if convicted after trial was not nearly
so stark as that in Boria, and the chance of an
acquittal at trial was not as hopeless as it was in that
case.b
The Supreme Court Rejects Per Se Rule Concerning
Failure to File a Notice of Appeal
In Roe v. Flores-Ortega, No. 98-1441 (U.S.,
Feb. 23, 2000), a majority of the U.S. Supreme Court
set forth guidelines for determining whether a defense
lawyer’s failure to file a notice of appeal for a
convicted defendant violates the Sixth Amendment
right to effective assistance of counsel. The Supreme
Court reversed the U.S. Court of Appeals for the
Ninth Circuit, which had ordered habeas relief under
a bright line rule that counsel’s failure to file a notice
of appeal is ineffective assistance per se unless the
client has specifically instructed counsel not to do so.
In this case, the habeas corpus petitioner
pleaded guilty to second degree murder. The trial
judge told him he had 60 days to file an appeal, but
defense counsel failed to file a notice of appeal within
the allowable time period.
A majority of the U.S. Supreme Court held that
the Appeal Court ruling ignored the “critical
requirement that the counsel’s deficient performance
must actually cause the forfeiture of the defendant’s
appeal.” To show prejudice in these circumstances, the
majority opined, a defendant must demonstrate that
there is a reasonable probability that, but for counsel’s
deficient failure to consult with him about an appeal,
he would have timely appealed. Absent such a
showing, counsel’s failure will not be said to have
deprived the defendant of his rights under the Sixth
Amendment. b
Conflict Not Extinguished by the Fact That No Other
Lawyer Would Have Been Privy to Confession
In Lettley v. State, a Maryland Court of Appeals
held that a lawyer should have been allowed to
withdraw from the representation of a criminal
defendant after reporting to the trial court that another
client had confidently confessed to the crime of which
the defendant was accused of. This was a conflict of
interest that adversely affected representation, the
court said, and the conflict was not dissipated by the
fact that no other lawyer would have had the
information that the defendant’s lawyer had but could
not use. Lettley v. State, No. 53-1999 (Md. Feb. 15,
2000).
The defense attorney informed the trial court that
an existing client, whom she represented on an
unrelated matter, had come to her in confidence and
confessed to the shooting. The trial court refused to
allow the lawyer to withdraw on the basis that no
other lawyer would have access to the confidential
communication and thus would not in any case be in a
position to improve the defendant’s position. The
defendant was convicted of attempted murder and
related crimes.
The appellate court overturned the conviction
on the ground that “an actual conflict of interest
endangered Appellant’s right to undivided loyalty and
assistance.” The Appellate Court agreed with
defendant’s contention that the attorney’s interest in
warding off any renewed investigations of the crime
that might jeopardize the interests of the confessing
client had restricted the manner in which counsel could
investigate the crime and cross-examine the witnesses.
The court held that conflict was “inherent in the
divided loyalties” with which counsel was faced. The
court concluded that even if new counsel would not be
privy to the confidential information known to
appellant’s counsel, the counsel’s fear of misusing
confidences of another client can create the risk of
failure to cross examine witnesses fully. b
Waiver of Counsel Not Knowingly Made When
Defendant Not Warned That Waiver Is the Result of
His Dilatory and Obstructive Behavior
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 18
Volume VI, Issue 1
THE SPANGENBERG REPORT
In Trujillo v. State, no. 98-205 (Wy., April 18,
2000), the Wyoming Supreme Court held that the
defendant was entitled to be resentenced on the basis
of the lower court’s failure to warn the defendant that
his dilatory and obstructive behavior would force the
court to proceed without counsel and that “such an
undertaking is wrought with danger.”
In this case, the defendant’s fourth lawyer
moved to withdraw a week before the defendant was
to be sentenced. The trial court granted the motion
and sentenced the defendant without counsel. Though
the Wyoming Supreme Court acknowledged that a
defendant could waive his or her sixth amendment
right to counsel, the Court ruled that a waiver must be
preceded by the warning a defendant receives upon
affirmatively invoking the right to self representation.
Defendant Is Denied Effective Assistance of Counsel
by the Absence of His Lawyer During Presentation of
Evidence Against His Jointly Tried Co-Conspirators
In United States v. Russell, no. 98-50804 (5th
Cir., March 1, 2000) the U.S. Court of Appeals for
the Fifth Circuit held that even though the government
obeyed the trial court’s order not to present any
evidence directly implicating the defendant during a
period when his lawyer was absent from the trial, the
nature of the charges and the nature of the evidence
the government did present, made that period a
“critical stage” of the trial for Sixth Amendment
purposes. Therefore, counsel’s absence is presumed to
have been prejudicial.
In United States v. Russell, the Counsel for a codefendant claimed to be temporarily “standing in” for
the lawyer with the defendant’s permission, but it is
unclear whether the trial court accepted the claim. It
therefore treated the case as one in which the
defendant neither had counsel nor waived the right to
counsel during the period of his lawyer’s absence.
The court commented that United States v.
Cronic did not define what constituted a “critical
stage” of trial for a showing of denial of counsel at
such a stage. The abstract standards enumerated in
Cronic have left courts grappling to identify what
stage of trial constitutes a critical stage. The present
case was distinguishable from Vines v. United States,
28 F.3d 1123, a post-Cronic decision in which the
Court upheld the defendant’s conviction on a
possession charge. The Vines court stated that the
lawyer’s absence did not come at a critical stage of the
trial because no evidence implicating the defendant
was present during that period. The defendant in Vines
was acquitted of a conspiracy charge, whereas the
defendant in the present case was convicted of a
conspiracy.
In the present case, the government’s evidence
of the defendant’s money laundering was followed by
the presentation, in the absence of the defendant’s
lawyer, of extensive evidence against co-conspirators
in the money laundering operation. The Court
concluded that, “without counsel present in such
circumstances, neither is the client in a position to
challenge the implicit connection between himself and
his co-conspirators nor is counsel available to cross
examine the witnesses presented. The adversary
process becomes unreliable when no attorney is
present to keep the taint of conspiracy from spreading
to the client.” b
Prosecutor’s Intention Irrelevant for a Showing of
Coercion
A potential witness for a murder defendant was
driven from the stand, in violation of the defendant’s
constitutional rights to present a defense, when the
prosecutor supplemented the advice the witness
received from the trial court about the privilege
against self-incrimination, and made what could be
interpreted as a threat to recharge the witness in the
victim’s death if she testified. The Kansas Supreme
Court acknowledged that the prosecutor’s conduct
could be interpreted as more benign, but concluded
that the defendant had carried his burden of showing
that the witness was coerced into not testifying. State
v. Finley, no.81,953 (Kan. February 25, 2000).
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 19
THE SPANGENBERG REPORT
In the present case, the defense planned to put
the defendant’s girlfriend on the stand as an alibi
witness. The girlfriend had originally been charged
with the same offense as the defendant, and when the
defense announced it was prepared to call her as a
witness, the prosecutor advised the trial court that the
charge against her might be reinstated. The trial court
responded by advising the girlfriend that the
prosecutor was seriously considering a new felony
murder charge and that she had a right to remain
silent. The prosecutor further asked the court to tell
the girlfriend that she could not invoke her Fifth
Amendment privilege selectively and that she would be
subject to cross examination if she testified.
The court commented that the “record strongly
suggests” that the prosecutor’s conduct “exerted
duress” sufficient to drive the witness from the witness
stand, thus infringing upon the defendant’s right to
present his defense. The court concluded that the
defendant “satisfied his burden of establishing that the
remarks of the prosecutor were of such a nature that
they exerted such duress on the witness’ mind as to
preclude her from making a free and voluntary choice
whether to testify.” b
Hearing on the Ineffective Assistance of Counsel
Granted to Defendant Alleging Trial Counsel
Undermined Duty to Defendant in Attempt to
Safeguard the Interests of a Third Party Co-Defendant
Paying His Fee
The U.S. Court of Appeals for the Second
Circuit determined that a defendant’s mail fraud drug
conviction must be vacated for ineffective assistance
of counsel if she can prove her allegations that her
lawyer’s trial strategy was swayed by loyalty to a codefendant-- the client’s mother-- who was paying for
the defense. Amiel v. United States, no. 98-2135 (2d
Cir., April 13, 2000).
The defendant had been convicted of mail fraud
and conspiracy for her involvement in a counterfeit
artwork ring with her mother and aunt, each of whom
were tried separately. The defendant asserted that she
had wanted to testify but that her lawyer forbade it,
telling her it was not in the best interest of her mother.
The defendant also alleged that her lawyer failed to
present evidence that she was a very minor participant
in the counterfeit ring and that she was away at college
during the conspiracy.
Based on the facts of the case the court ruled
that the defendant had alleged an actual conflict of
interest and the requisite lapse in representation. To
make such a showing, the court continued, a defendant
need not demonstrate that the lapse resulted in
prejudice-- that is, that the outcome of the trial would
have been different but for the conflict. Instead, the
defendant must demonstrate only that a “plausible
alternative defense strategy or tactic might have been
pursued but was not and that the alternative defense
was inherently in conflict with or not undertaken due
to the attorney’s other loyalties or interests.”
In support of this argument the court cited New
York’s DR 5-107 (b), which states that a lawyer shall
not permit a person who pays the lawyer to render
services to another to direct or regulate the lawyer’s
professional judgment, and ABA Model Rule 1.7 (b)
under which a lawyer may not represent a client if the
representation may be materially limited by the
lawyer’s responsibilities to a third person, unless the
representation will not be adversely affected and the
client consents. b
A Defendant Who Invokes the Sixth Amendment
Right to Counsel Need Not Reiterate the Invocation
after the Attachment of That Right
The U.S. Court of Appeals for the Ninth Circuit
held that a defendant who, with the government’s
knowledge, retained counsel to represent him
regarding matters that subsequently led to the bringing
of formal charges need not re-invoke the right. United
States v. Harrison, no. 99-10496 (9th Cir., May 30,
2000).
The defendant retained counsel at the point he
was subpoenaed to testify before a grand jury that was
looking into the activities of a drug ring of which he
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 20
Volume VI, Issue 1
THE SPANGENBERG REPORT
was a member. His counsel helped negotiate an
immunity deal, pursuant to which the defendant later
testified on the events surrounding the murder of one
of the drug ring’s customers. The defendant was later
indicted for murder and drug offenses. At the point
that the defendant was arrested by FBI agents and
advised of his rights under Miranda v. Arizona, 384
U.S. 436 (1966), the defendant signed a written
waiver and made incriminating statements. He later
argued that the statements should be suppressed on
the basis that they were obtained in violation of his
right to counsel.
The court agreed with the defendant that his
ongoing relationship with counsel carried over into the
post-indictment stages of the case. The court further
pointed out that though under McNeil v. Wisconsin,
501 U.S. 171 (1991), a defendant’s pre-indictment
retention of counsel cannot preempt interrogation
about any or all crimes, McNeil is limited to cases in
which police question a defendant in custody about
charges unrelated to those prompting the defendant’s
confinement.
The court noted that the Sixth Amendment right
to counsel does not come into play until it has both
attached, through the initiation of formal adversary
proceedings, and been invoked by the defendant. The
court noted that attachment must generally come
before invocation.
Summing up, the court held: “... whether there
is a close nexus between the focus of a preindictment
investigation and the ultimate charges brought in the
indictment, a defendant’s ongoing relationship with
counsel that is known or should be known by the
government invokes the Sixth Amendment Right to
Counsel once that Right attaches.”
Court Remedies the Violation of Sixth Amendment
Right to Effective Counsel by Reducing Sentence
Under U.S. Guidelines
The U.S. District Court for the Southern District
of New York held that giving a defendant the sentence
he would likely have received had his lawyer timely
advised him of the importance of cooperating with the
government is the proper way to remedy the violation
of the Sixth Amendment Right to the effective
assistance of counsel that occurred as a result of the
lawyer’s failure to give that advice. The court
therefore calculated a guidelines range on the basis of
its determination as to the plea agreement the
government would have offered to the defendant, had
he contacted the government at an earlier stage and
been willing to testify against his co-defendants.
United States v. Fernandez, No. 98 (S.D.N.Y. May 3,
2000).
The attorney took the person paying the
defendant’s legal bills to be a well meaning relative of
the defendant. The attorney later learned that this was
the more culpable co-defendant in a drug distribution
case. The attorney did not speak with his client about
the possibility of cooperating with authorities until
such a time that prosecutors no longer needed the
defendant’s help. The court looking at the case before
it stated that “... It should have been evident that the
best way to obtain a favorable sentence for the
defendant was to persuade the prosecutor that he was
less culpable than his co-defendants and should be
allowed to enter into a cooperation agreement.”
The court stressed that “this possibility was never
explored.”
In United States v. Amiel 67 Cr.L. 190 (2000)
the U.S. Court of Appeals for the Second Circuit
reiterated the principal that a defendant can make out
a counsel ineffectiveness claim by showing that
counsel suffered from a conflict of interest, and that
this conflict resulted in a “lapse in representation” that
does not necessarily amount to a showing of prejudice.
In the instant case the court decided that “the
unreasonable lapse in representation occurred when
counsel failed to advise the defendant early in the case
of the importance of cooperation with the government
as a means of reducing his sentence.”
The Court drew attention to the ABA’s Model
Code of Professional Responsibility, Ethical
Consideration 7-7 which spells out that defense
counsel has a “duty to advise his client fully on
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 21
THE SPANGENBERG REPORT
whether a particular plea to a charge appears to be
desirable.”
The Court was careful to add that imposing a
sentence within the guideline range that he would have
been facing if he had effective counsel does not realize
the issue of downward departure. The court affirmed
that United States v. Bicaksis, 194 F.3d 390,398 does
not apply in this case. Although in Bicaksiz, the
Second Circuit stated that a “downward departure on
ineffective assistance grounds is impermissible because
it simultaneously assumes the validity of a defendant’s
conviction and conspicuously calls its validity into
doubt,” the ruling in Bicaksiz did not leave the
defendant without an effective remedy in the present
case. However, the court emphasized that a defendant
cannot establish a right to a downward departure by
alleging that his lawyer failed to explain to him the
importance of cooperation. To obtain relief, a
defendant has to prove that he was prejudiced by this
failure or that the lawyer’s failure may have been the
result of a conflict of interest. b
The Spangenberg Group is looking for an
attorney to work as a Senior Research Associate. The
Senior Research Associate is a professional position
for attorneys with a background in the criminal justice
system who are interested in policy and research.
Ideal candidates should possess a J.D. and have prior
experience working in the delivery of indigent criminal
defense services. The position requires outstanding
writing and organizational skills. Ability to travel a
must. Salary commensurate with experience. Please
send resumes to: The Spangenberg Group, 1001
Watertown Street, West Newton, MA 02465. E-mail:
TSG@spangenberggroup.com.
Transitions at The Spangenberg
Group
We bid farewell and good luck to Senior Research
Associate Bill King, who is moving to Vancouver,
British Columbia to begin a new career: he will be
attending web production school! And we extend
congratulations to David Carroll, who has been
promoted from Research Associate to Senior Research
Associate and Business Manager.
Job Announcement
The Spangenberg Group Seeks Senior Research
Associate
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Page 22
Volume VI, Issue 1
THE SPANGENBERG REPORT
b b b b b b b b b b b b b b b
b
b b b b b b b b b b b b b b b
b
We welcome your comments on this issue and
would be pleased to consider your suggestions for
future articles. The Spangenberg Report is written
and produced by members of The Spangenberg
Group:
Please pass on this order form to others who might be
interested in subscribing.
Robert L. Spangenberg, President
Marea L. Beeman, Vice President
William R. King, Senior Research Associate
David J. Carroll, Senior Research Associate &
Business Manager
Rangita de Silva-de Alwis, Research Associate
Jaime Bailey, Research Assistant
David J. Newhouse, Computer Analyst
Michael R. Schneider, Of Counsel
b b b b b b b b b b b b b b b
b
b b b b b b b b b b b b b b b
b
ORDER FORM
THE SPANGENBERG REPORT
(Federal Identification # 04-2942765)
Name:
__________________________________________
Organization:
__________________________________________
Address:
__________________________________________
__________________________________________
__________________________________________
Telephone:
__________________________________________
Please send completed form, with $100 annual
subscription (4 issues) to:
The Spangenberg Group
1001 Watertown Street
West Newton, MA 02465
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820
Volume VI, Issue 1
Page 23
THE SPANGENBERG REPORT
THE SPANGENBERG
GROUP
•
•
Specialists in Justice System Reform
Indigent Defense • Civil Legal
Services
The Spangenberg Group is a research and
consulting firm specializing in improving justice
programs both nationally and internationally. Created
in July 1985, The Spangenberg Group has conducted
research and provided technical assistance to justice
organizations in every state in the union on behalf of
state and local indigent defense organizations, legal
services organizations, the federal government, state
and local governments, the courts, the American Bar
Association, state bar associations, private
foundations and other private sources.
Our knowledge and experience can help your
organization to:
•
•
•
Address Systemic Deficiencies
Develop Alternative Funding
Programs
Create Computerized Case
Tracking and
Computer Modeling Systems.
Develop Statewide Civil Legal
Services Plans
Conduct Specialized Civil Legal
Needs Studies.
The Spangenberg Group’s quarterly newsletter,
The Spangenberg Report provides up-to-date
information on the latest trends and developments
affecting indigent defense! As a subscriber, you will
receive timely information on such topics as:
•
•
•
•
New Sources of Funds for Indigent
Defense
Improving Indigent Defense
Representation Through Standards
and Guidelines
Recent State and Federal
Legislation Affecting Indigent
Defense
Recent Court Decisions Affecting
Indigent Defense.
*****
Please Contact Us for More Information:
The Spangenberg Group
1001 Watertown Street
West Newton, MA 02465
(617) 969-3820
TSG@spangenberggroup.com
In criminal defense matters, we can help your
organization to:
•
•
Evaluate State and Local Indigent
Defense Programs
Formulate Caseload and Workload
Standards.
In civil legal needs matters, we can help your
organization to:
•
Evaluate Civil
Programs
Legal
Services
Copyright © 2000 by The Spangenberg Group - 1001 Watertown Street, West Newton, Massachusetts 02465 (617) 969-3820