R2C National Consortium Quarterly Webinar (June 2016)

R2C National Consortium Quarterly Webinar (June 2016)


DAVID CARROLL: Thank
you, Genevieve. The Sixth Amendment Center
is a nonpartisan technical assistance and
research center created to help state and
local governments in meeting the constitutional
obligation to provide attorneys to poor people facing
the loss of liberty at the hand of our
criminal justice systems. I’ve been asked today to speak
about current legislation on the right to counsel. But to give context to the two
most important pieces of right to counsel
legislation this year, I want to start talking
about the problems those pieces of legislation
sought to overcome. And with that,
I’m going to start with the story of one poor
defendant I encountered while conducting a statewide
study of indigent defense in Utah on behalf of the state’s
Utah Judicial Council, which is the state’s policymaking
body for the judiciary. During that study I personally
observed a young woman I will call Mary Smith. She appeared in
Grantsville, Utah Justice Court for a status hearing. She had pled guilty to issuing
a bad check sometime prior, and had been sentenced
to attend AA classes and to pay fines
and restitution. Though Miss Smith regularly
attended the AA classes the judge noted that
she had yet to put any money towards her
fines and restitution. Are you prepared to pay
anything today, the judge asked? The woman replied, judge,
I’m here to turn myself in. I’m ready to have the
whole thing over with. Somewhat incredulously,
the judge asked her point blank if she
was seeking to go to jail? Acknowledging that she had
no job, no money, and no job prospect, she stated,
I have no chance of paying so I
want to go to jail. Over the next five
minutes the judge diagnosed her with
depression and establish that she was on drugs. Seeking to get her medical
and psychological assistance, the judge had her
taken into custody. In an interview upon
conclusion of the docket, the judge admitted that at Miss
Smith’s original arraignment where the plea was
taken no lawyer was assigned to represent
her because she was only getting fines and restitution. Without jail on the
table, the judge told me, there’s no need for a lawyer. Therefore when Mr. Smith
appeared in court the day I was there, she is not under
a suspended jail sentence. When I asked the judge
by what authority he just put her in jail, the judge
scratched his head and said. Mr. Carroll, you
ask tough questions. Questioned if he thought
the defendant knowingly and intelligently decided to
go to jail without counsel to advise her, the judge
responded, absolutely. He believed this
despite his assumption that she was depressed,
and her own admission that she was on drugs. So how is it that
in 2016 poor people can still be jailed
in the United States with no legal authority
and no attorney to advocate on their behalf? The actual denial of counsel
occurs most frequently in our misdemeanor courts
because people generally think, well, it’s only a misdemeanor. But misdemeanors do matter. For most people, our
nation’s misdemeanor courts are the place of initial contact
with our criminal justice systems. Much of a citizenry’s confidence
in the courts as a whole, their faith in the
state’s ability to dispense justice
fairly and effectively, is framed through these
initial encounters. Although a
misdemeanor conviction carries less incarceration
time than a felony, the collateral consequences
can be just as great. Going to jail for
even a few days may result in that person’s
loss of professional licenses, exclusion from public housing,
inability to secure student loans, or even deportation. A misdemeanor
conviction in jail term may contribute to the breakup of
the family, the loss of a job, or other consequences
that may increase the need for both government
sponsored social services and future court
hearings, for example, matters involving parental
rights at taxpayers’ expense. But denying counsel is
not simply a bad idea. It’s unconstitutional. In 1984, the US Supreme
Court handed down its case called the
United States v. Cronic. Cronic states that if
certain systemic factors are present at the outset
of the case then the court should presume that
an ineffective assistance of counsel will occur,
the first factor that triggers a presumption
of ineffectiveness is the absence of
counsel for the accused at the critical
stages of a case as defined by the
US Supreme Court, and demonstrated in
Mary Smith’s story. As the US Supreme Court
further explained in Cronic, there may be
systemic deficiencies that make any lawyer, even
the very best attorney, perform ineffectively. If a defense attorney is
either incapable of challenging a state’s case or
barred from doing so because of a
structural impediment, a “constructive denial”
of counsel occurs. The court clearly advises that
governmental interference that infringes on a
lawyer’s independence to act in the stated
interests of the defendant or places the lawyer in
a conflict of interest is a cause of a constructive
denial of counsel. Here’s how such government
interference worked in Utah. In Utah all the indigent
defense services are a function of local
government with no state oversight. In the particular Utah
jurisdiction from the story, the city prosecutor is allowed
to hand select defense counsel, enter into contracts
with defense counsel, set the attorney’s
compensation rate, approve all requests for
experts and investigators, and then decide whether to renew
the indigent defense contract in each subsequent year. Obviously, it’s a direct
conflict of interest to have one courtroom
adversary controlling the other because
in this situation, the defense attorney must take
into account what he needs to do it please the prosecutor
to secure future contracts, rather than advocating
solely in the interests of the indigent accused. For the court in question,
the indigent defense contract pays the misdemeanor public
defender a flat $600 per month to handle representation of
everyone determined to be indigent in that courtroom. The contracted private
attorney from the story estimated that he handles
about 20 such cases per month. This means he is compensated
at approximately $30 per case. To improve his income, the
misdemeanor lawyer in question sought contracts from
other prosecutors too. In addition to his contracted
Justice Court work, this attorney handled
representation in the County District Court, and conflict
representation in the County Juvenile Court too. In total, this attorney
handled 423 cases in 2013, including 101 felonies. Totaling all
contracts, the attorney was paid $37,200 annually. That means on average, he
is compensated just $87.94 for each and every
case he handled regardless of the complexity
of his felony and delinquency cases. To put it another
way, let us estimated that the attorney worked
40 hours every single week of the year. Under that scenario,
the attorney is paid $17.88 per hour. Though critics will admit that
earning nearly $18 per hour may sound like a lot of money
to the average person trying to scrape by in hard
economic times in rural Utah, it is not a lot of money
given the parameters of what is required of a
practicing attorney. For example, the
maintenance costs to operate a law practice in
Utah, commonly referred to as overhead expenses, are many. Overhead costs must be
paid each month in order to stay open for business. And so the lawyers take home
pay is whatever amount remains after accounting for office
rent, telecommunications, utilities, accounting,
bar reviews, business travel, and professional
liability insurance. As a means of comparison,
the Mississippi Supreme Court determined in a case challenging
that state’s assigned counsel compensation rate, that
indigent defense attorneys are entitled to a reasonable
hourly fee in addition to overhead expenses. Though that case is now
nearly 25 years old, the Mississippi
court heard testimony from the Mississippi
State Bar Association that the average overhead
rate in that state was $34.86 per hour at that time,
or nearly twice the hourly rate paid to this attorney in
rural Utah without taking into account any overhead costs. No attorney, even the most
well-intentioned lawyer, can ever provide
adequate representation under this type of
financial pressure. The lawyer decided the
only way to make it work was simply not to staff Justice
Courts in the early appearance dockets, as was
the case with Mary. Now just one more point on this. Any trial related
expenses, experts, investigations also came out
of that attorney’s flat fee contract. But happily, this story
does not end there. Utah criminal justice
stakeholders and policymakers jumped into action when these
deficiencies were revealed. Following the recommendations of
nationally recognized standards of justice, such as the
American Bar Association’s 10 principles, most states
eliminate the potential for direct government
interference with the right to
counsel by establishing an independent commission to
oversee the defense function. This year, Utah Senate Bill 155
passed on a near unanimous vote and was signed by the governor. What it does is it creates
a new Utah indigent defense commission made up
of members appointed from diverse
appointing authorities so that no one branch of
government has undue influence. Specifically, the
Utah commission is composed of 11 voting and two
ex-officio non-voting members. The governor, with the
consent in the senate, appoints nine
members recommended by the following, the Utah
association of Counties. the Utah League of
Cities and Towns; the Utah Association of Criminal
Defense Lawyers; the Utah Minority Bar Association;
and the Utah legislature. The Utah Judicial Council
and the Commission on Criminal and Juvenile Justice
appoint the other two voting members. The principal duty
of the new commission is to adopt guiding
principles for the oversight and assessment of public
criminal defense services that happen to align with
the ABA 10 principles. Senate Bill 155
includes the first ever state funding for trial
level public defense services in Utah. On a side note, this
isolates Pennsylvania as the only state in America
with no state funding of the constitutional
right to counsel. The new Utah commission
is statutorily required to develop
policies and procedures for how best to disseminate
these new monies. However, it is important to note
that all local governments are bound by the
commission’s standards, whether they seek
state funding or not. Now I focused on Utah
in this presentation. But I could easily
have focused on Idaho, which share many of the same
systemic deficiencies as Utah, and detailed in a 2010
National Legal Aid and Defender Association report. And like Utah, in
March of this year, the Idaho legislature
on a near unanimous vote enacted House Bill 504, a bill
with the express legislative intent of improving the delivery
of trial level indigent defense services by providing
funding to counties and creating standards with
which counties must comply. The bill authorizes the state’s
Public Defender Commission to promulgate and enforce
uniform indigent defense standards. Additionally, a
companion $5.4 million appropriations bill was passed,
authorizing the commission to disseminate
grants to counties to offset the
costs of compliance with the new standards. All Idaho counties must comply
with standards without regard to whether they apply
to the commission for financial assistance or not. The hammer to compel
compliance with standards is quite significant
and very interesting. If the commission determines
that a county willfully and materially failed to comply
with commission standards, the commission is authorized
to step in and remedy the specific
deficiencies, including taking over all
services, and then charge the county for the cost. And if those costs are
not paid within 60 days, the state treasurer
shall immediately intercept any payments
from sales tax monies that would be distributed
to the county, and redirecting those funds
to reimburse the commission for fixing the deficiencies. As stated in House Bill
504, the foregoing intercept and transfer provision shall
operate by force of law. Finally, the
legislative sessions have not ended in all states. Right now, today,
the New York Senate is debating a bill already
passed by the General Assembly that will shift the funding
of indigent defense services from upstate counties to
the state over the course of the next five years,
New York has already created an office of
Indigent Legal Services that has direct oversight of
services in five counties that were the focus of an ACLU
systemic Cronic challenge. The idea is that ILS
will expand oversight to all upstate counties, as the
county to state funding change is implemented. Now, the legislative
session in New York ends at midnight
tonight, so we’ll know. But there’s the potential for
three states in a single year to go from county based
systems to state directed and state funded systems. That has never happened in the
past 50 years since Gideon. It’s a really important
year, 2016, and one that we hope the states
that still need reform will emulate in future years. Thank you for listening and
I’m happy to take any questions now. SPEAKER 1: Great, thank
you so much, David. We’ll all be watching news
in the next couple of days to hear what
happens in New York. We haven’t received any
questions in the Q&A. But at this time, I’d like
to just pause for a minute and see if anybody has
any questions for David. You do need to raise your hand
or type them in that Q&A box. [INAUDIBLE] We have one from Josh Berkhart. Kara, can you
un-mute Josh, please? KARA: Yes, you
have been unmuted, so you should be able to speak. SPEAKER 1: Great. Josh, are you there? All right. Well, maybe we’ll
come back to that one. Josh, I’m not sure if
you’re able to speak or not. I’m not sure if
you’ve called in. But if you can’t,
or you’re trying to, if you can please send
it in the Q&A box, we will then be able
to ask it verbally. Do we have any other questions? Looks like we have one more. KARA: Yes. There’s a question
from Ernie Lewis. Mr. Lewis, I have
unmuted you, but if you would like to ask it verbally. Otherwise, the question is,
what other states remain? It says, what other states
remain that you’ve identified? I know you mentioned three
states in that last little bit there. What are the other two? DAVID CARROLL: The
other states remaining that need comprehensive reform? Is that the question? If so, there’s a number,
probably the biggest of which is California. California currently only funds
state post-conviction death penalty representation. Everything else,
including direct appeals and all other
post-conviction, it’s a requirement of the counties. There is an ACLU lawsuit
against Fresno County and the state for
failure to provide effective representation. But other states that
have similar qualities to New York, Utah,
and Idaho are states such as Arizona, South Dakota,
Mississippi, Pennsylvania, which is a huge one, as
I mentioned in my opening remarks. Pennsylvania is
now the last state that does not
contribute anything to indigent defense services. Washington is similar in nature. They do have a series
of state Supreme Court rules that make them a
little better off in regards to workload and others. But basically, the
idea of the state not having any capacity to tell
us if counties are indeed doing what they’re
supposed to be doing in regards to the
Sixth Amendment, Washington is in
that group as well. Then there’s a couple others. Kansas, for instance,
has a statewide system for appeals and felonies only. Juvenile representation and
misdemeanor representation are all county functions
without any oversight. So you can start getting into
a whole other set of states that may have some
oversight of one piece. For instance, the
state of Illinois has a state appellate
defender that’s state funded, but all trial level services
are a function of the county and there’s no
state organization whose aim it is is
to make sure they meet standards of practice. SPEAKER 1: Great. And Karen Nelson is
asking about Alaska. Do you know what
their situation is? DAVID CARROLL: I do. So the state of Alaska
actually has two state funded organizations. Indigent defense is entirely
state funded in Alaska. One handles primary
representation, the Alaska State Public Defender. And then the Office
of Public Advocacy handles conflict
representation and then some of the civil work, like
termination of parental rights. The interesting thing
is the directors of both those organizations
are a direct gubernatorial appointee, which means
that as governors come and go you get
turnover in the head of those organizations. The other thing is
that the directors can be conflicted because if
the governor says, for instance, take a 10% cut in funding
they know they either have to take that 10% cut
or lose their job and have the governor
appoint somebody else that would be willing to do it. So I think there’s much to
like about the Alaskan system, but that’s a major problem
that still needs to be fixed. There is no commission
to appoint directors nor set standards of which
the people practicing in the systems must meet. SPEAKER 1: Great. Thank you. And it’s like Josh, you
are you are now unmuted. So if you would like to
ask your question go ahead. AUDIENCE: Oh, great. Can you hear me? DAVID CARROLL: Yes. KARA: He can hear you. AUDIENCE: Great. Sorry about that. There was trouble, and I
think it was on my end. I was just wondering,
David, if you have any other
thoughts on New York and the passage
of the bill there? I’ve just talked to a
couple of people there and nobody I’ve talked
to seems to have a good sense of the governor’s
veto or anything like that. I just wondered if you had
any additional insight? DAVID CARROLL: I’ve heard
it’s a coin flip, or maybe even worse than that whether
Governor Cuomo will sign it. My understanding is that a
lot of the negotiations taking place right now
with some amendments is aimed to try to get enough
to override a veto if it comes. So it really is– nothing is secured. I think the fact that
the Assembly passed it on an overwhelmingly majority
basis is a good sign. But we will know by
the end of the day today exactly what’s going on. And if a bill
passes then there’s going to be a period
when people just don’t know what the
government is going to do in regards to a veto. AUDIENCE: Thanks. DAVID CARROLL: Great. Thank you so much, David. And thank you all for
those great questions. And now, at this point,
I’d like to turn it over to Nancy Beldon and
John Russonello. NANCY BELDON: Can
you guys hear me? SPEAKER 1: Yes, we
can hear you now. NANCY BELDON: OK. Sorry. I think that you guys need
to change to our slides. KARA: Yes. And you have control
of them now as well. NANCY BELDON: I’m sorry. There we go. Sorry. KARA: You’re fine. NANCY BELDON: This
is Nancy Beldon. And I have John
Russonello here with me. And we are happy to be able
to present the findings from the first phase
of a two part project that we are doing for
the Right to Counsel national campaign on
American attitudes. We are looking to
update the findings and understanding
that we have based on some old research and other
things about the perceptions that Americans have of
the public defense system, of public defenders themselves,
and the importance of right to counsel. And from that we will also
be developing messages to help build support
for the national campaign to try to improve funding and
policies around public defense all across the country,
much like the things that David has
just spoken about. So what we’ve done so
far is six focus groups. We did them in Columbus,
Houston, and Richmond in April. And we divided people up by
their gender, and their party affiliation, and their
race and ethnicity. So we had some
white groups, which had separate people by
party and by gender. We had a group of
African-American men and women of all parties, and
same thing with Latinos, Although those two final groups
were, as you might imagine, naturally fell into more of the
Democratic, Independent camp. So we’re going to go through
seven points of things that we have seen so far
that we have a digested down for presenting here. And the first one is
that the public really sees the right to counsel
as very fundamental. They believe that
the right to counsel is the key factor in achieving
the justice and fair play that Americans really
think are part of America, and that the defendants
need a lawyer to get a chance at that fairness. So they see things both from the
point of view of the principle that we believe in
justice and fair play. And they see the
practical application of that means that people
have to have a lawyer that’s able to represent them. What a Latino told
us in Houston, he said, “This is America. This is the only country I know
of where we assume people are innocent until proven guilty. It’s what makes us
different and special, the fact that we assume
people have rights and the ability to be protected. So it’s easy to say, oh, that’s
not going to happen to me, but you never know when
it could happen to you. So I think it’s something
that’s a protected right that should be defended.” A Republican woman
and Houston told us, “Anybody who has
committed a crime, they have the right to an
attorney no matter who they are or whether they can
afford it or not, even if you have a
different nationality.” I’m not going to read every
single quote that we had here, but you can see that
over and over again people expressed a
high level of interest in having the fairness defended,
and that they immediately moved to the issue of income,
and affluence should not be the governing principle. The second point is that
referencing the Constitution is really helpful. That it’s a
constitutional guarantee. We found that people
really, in these groups, very, very few people could tell
us where the right to counsel comes from, where it
is in law, and that is in the Constitution. Basically, when we asked people
that, we got a lot of blanks. So when they were
struggling to answer the question in the
groups, a lot of people came up with the
idea that Miranda is a piece of legislation
that provides for the right to counsel. That that’s where
they would find it if they look in a law book. So that was really interesting. And when we told
people in the groups that it’s part of
the Constitution and it’s in the Sixth
Amendment, it really established the
importance to them. It made it all the more salient. People said things
like this woman and Columbia said, “At
the end of the day, if it’s in the
Constitution then we should do whatever we need
to do to abide by it.” A woman in Richmond
said, “Everybody should have the opportunity
to have representation. States will have their
excuse, (such as) it’s not in the budget,
we’re a small town, we don’t have the resources. But it’s the Constitution. It’s a federal right to do it.” Point number three is
that the federal role in providing the
counsel and making sure is that it happens is
pretty much accepted by the people in our
groups, although, not wholly, particularly
the Republicans pushed back some bit on whether
on the federal role almost entirely because
of the cost issue. Although sometimes,
too, ideologically. JOHN RUSSONELLO: Two
points on the Republicans. The men felt that they didn’t
want federal government involved in anything. And some of the women were
more OK with the federal role but worried about the
cost to taxpayers. NANCY BELDON: So let’s
see if we can’t see– so we have a Republican
woman here telling us that, “The Constitution
trumps everything. I’m big into letting states make
their own decisions but there are certain subjects in
which there’s no question the Constitution says,
‘(such and such),” and that’s it
Conversation over.” A Democratic woman
said, “The Constitution is for everyone in
the country so it should be for the
federal government to make sure that those
rules are followed.” A very typical type of
statement from somebody. But then again, you see
some of the Republicans push back a little bit. “Who’s going to pay for it?”
a Republican woman asked. “Federal government will
make you do it but will it pay for it? Probably not. And if the state can’t pay
for it, they can’t afford it, then the states are
going into debt.” Then back on the other
side of more supportive, you have the Latino
man in Houston saying, “It’s what the
Constitution says, that person has a
right to defense. How many people on death
row now have been innocent? I say, yes, you have to have
adequate representation. If we need to pay for
it, the government, it needs to pay for it.” Fourth point. The voters in these groups
recognize pretty easily that the public defenders
would be overworked. But they did not
arrive at the idea that there’s a crisis,
that this is really a serious, deep problem. They basically understand that
you need public defenders. There’s no question
that they think there are a lot of poor
people and a lot of people who aren’t going to be able
to afford their own counsel. But they just didn’t see it
as a big issue, a big hole. I’m not going to read
everything we have here. So just a couple of things
to illustrate that point. This Republican man in Columbus
said, “The majority of crimes are committed by people around
and below the poverty line and they don’t have the
money to pay for it.” So they felt there was
that recognition there. There’s also the sense that
a lot of public defenders are not particularly
well equipped or that they are overworked. If you look at that
third quote there, we asked people how they
imagined public defenders were, what were they like? And here is a man in Richmond
saying, “In TV and movies public defenders
are always frazzled, mixing up who they’re with, and
not knowing what’s going on. I think we can safely
say that you’re not going to get as
good representation as if you paid for a lawyer.” We had a lot of
discussion around that, that they understand
that it’s adequate. But as I said before,
they didn’t really– whoops– didn’t really
come to the conclusion very much on their
own that there was a big, huge hole
out there or a big need to do something about it. That was something that
needs to be communicated. The fifth point is
that as began to try to talk to the [INAUDIBLE]
participants as you all talk to the public
about these issues, we found that three things
that we put in front of them made a lot of
difference in trying to get people to recognize the
importance of doing something about the financing and
resources for public defense. Training, inadequacy of
the lawyers themselves, time to do their work,
and the resources to support building a
defense for their clients were all really important
pieces of information that would be things, good
things to try to communicate. Here are three statements
that we put in front of people in the groups that were
the things that what I just said grow from, the things
that we put in front of them and then they told us about– that we noticed their
reactions to them. The first thing was– so this starts to be the
educational component, where we start telling people
this is the situation. What do you think of that? And get feedback. So the first one was
that, “In some instances, jurisdictions have
reported caseloads to be so high that
defenders average just seven minutes per case.” I think that we can safely
say that even if this is an extreme case, when you
provide the kind of things that like this, or are
the kinds of data that David was talking about
earlier, when you demonstrate that to people
they really, really start to see the problem as
opposed to just the system. The second statement that
we were talking about is the second one. “Many times a person will remain
in jail as long as six months, waiting for a court hearing
because he or she is still waiting for a public
defender to be appointed in his or her case.” We had an in each of
our groups somebody who either personally
had experienced this or had a relative or friend who
had had this happen to them. And the unfairness
of this really, really does start to
build salience for people. And the third one was that,
“Indigent defender caseloads can range from 500 to 900
cases each, five times the recommended ceiling set
by the National Advisory Commission on Criminal Justice.” Again, the same kind of facts
that David was talking about really helped to illustrate to
people that we have a problem. And that they don’t
really know about it, as this man in Richmond told us. He said, “I was not
aware that there are not enough public
defenders to go around. And I probably should’ve been. My wife watches all
those court shows. I certainly wasn’t aware
of some of this stuff. The six to 10 months really
sticks with me, and the seven minutes, that’s just nuts.” We heard just over and over. I was particularly interested
in the second quote here that the
Republican woman said. “It should be innocent
until proven guilty. How can you expect to prove
someone innocent if you only have seven minutes?” And the African-American
woman who said, “With proper
legal representation many of those people would
not even be in jail.” So they really get the
problem when they start hearing about these specifics. And I think that we would say
that in lots of cases, in lots of communication issues with
our clients over the years we’ve been in the position
to say don’t drill them with a whole bunch of facts,
that sometimes it diverts from the principal issue. But in this case, it
really makes the case. Point six. Relating to public
defense to other issues may have less impact. What we’re hearing
here too is we all heard a lot of other
statements and other ideas to people in the groups. And some of them were helpful. They don’t go in
the wrong direction but they really
didn’t drive people to getting agitated
about the issue as much as those previous ones
that we just talked about, when they actually hear
about the inadequacy of time and resources for defense. Some of those things
that we tested are the idea that the
consequences could be life-altering,
over-incarceration as a outcome of the weak
system, and racial bias in criminal justice system. They’re important
to a lot of people but they’re not as directly
related to public defense. We have to be sensitive
to these things as we move into our next
phase of this research and get closer to developing
methods to which things can be helpful some of the time
but they’re not as compelling. For example, the
Latino in Houston told us, “Shoplifting
is normally teenagers, they might be 16 or 17 or
whatever, and like you said, it’s on their record forever. We’re trying to help them out at
this point, not make a mistake. They’re young. We as a society don’t have
to condemn it forever. And that’s what happens when
you don’t have representation.” It was helpful, yeah. He got this kind of
thing it’s helpful. It’s just, in the
final analysis, is not as powerful as some
of those other things. But they’re helpful. A man in Richard
told us, “I think overcrowded prisons are not
as much a problem because of improper of
legal representation but the laws themselves. I think the number at this point
is over 200,000 people a year getting arrested for minor
marijuana possession is ridiculous, and that’s what’s
driving this in my opinion. I don’t think it has to
do with representation so much as the laws in general.” So he’s not rejecting the
idea that the jails are over and prisons are overcrowded,
but that other things might be underlying that more seriously. JOHN RUSSONELLO:
We got agreement from all three political types,
Democrats, Republicans, and Independents, that there is
an over-incarceration problem in this country. There’s broad
agreement that we’re incarcerating too many people. It was the direct relationship
to right to counsel that sometimes
didn’t make the link. NANCY BELDON: Yeah. And some thing with that
linking right to counsel to racial issues. The final sentence here
of this woman in Columbus, where she says, “This is the
bigger issue, racial issue here, bigger issue altogether. A million public
defenders won’t help.” JOHN RUSSONELLO: The
difference in the racial issue is that there wasn’t as much
agreement across the board on Democrats and
Republicans and Independents that there’s a racial
bias in the system. Some of the Republicans refused
to acknowledge the racial bias in the system at all. Whereas most of the
Democrats and Independents accepted that there’s a
racial bias but thought it was a little bit more
complicated to fix it than just fixing the
right to counsel issue. NANCY BELDON: Point seven. We put some solutions, some
policies in front of people just to see how far
they might go with them. And they were not
exactly the same things that David was
talking about earlier, but they serve very much to– well, there are pieces
of them are in here. We talked about four
sets of reforms. “Setting national
standards for states to that assure a minimum level
of resources are available. Setting national standards
for the qualifications of public defenders and
court appointed attorneys.” So those two national
standards things. And then, establishing
oversight commissions that ensure that defender
systems are serving people and requiring states
to assign a lawyer who will meet them within, we have
three business days in here. People could talk
about different times. We were trying to
see how people felt about those kinds of solutions. And we got a mixed
solution system of this. JOHN RUSSONELLO:
Mixed reactions. There was nothing that was
overwhelmingly positive. And nothing that was
overwhelmingly negative. There were some somewhat
more appealing than others. But it was generally mixed. NANCY BELDON: The idea that
there would be standards, however, is really important. The two– I’ll go
back just here– that we had the
two that we tested that were national standards
for a minimum level of resources and for qualifications. That kind of thing starts to
make a lot of sense to people. When you get to things
like commissions they start to have reasons why
commissions might be political, or they had a bad experience
with a local commission, that start to erode– it gets not quite as interested. The standards are
much easier to defend. And practical things, like
having the standards be that someone has to
meet with their lawyer within a reasonable point
of time is also helpful. A woman in Columbus
told us, “The concept of national standards is
pretty important– to make sure that a person in State A is
getting the same representation and the exact things offered
as a person in another state does.” And you do get, again, from
Republicans some pushback. This man in Columbus
told us, “I like the idea of national
standards, but there’s this concern about the
federal government being able to come in and
tell us what to do. Look at how it worked
in some other areas. And it’s worked in some
areas, and not in other areas. Equality is something
we all love and desire and want to get behind. But the reality of, wow, that
never happens because people in DC are so far
away, so far removed that the disconnect between
their policy and situational, whatever else, that
equality can’t exist. I’m torn in that sense. I understand that fear
even though in my desire is what a working federal
standardization would create. Even though I know we know
from experience that it won’t.” So people want,
even the Republicans want things to work. But they have their
classic objections. These are just a couple of
comments on the commissions that people could come up with
reasons why they might not be so helpful. A man in Richmond said, “I have
a problem with commissions. They can be very costly
and bureaucratic.” So this takes us to
our initial thinking on the message
components, which we’ll be working on additionally. We tried to have in the
things that we recommend this messaging is something
that references a value that’s deeply held by the listeners, a
definition of what the problem is, and an offer of a solution. So in this case, we’re going
to be further testing the idea that the value is people
accused of a crime in America, regardless of their income,
have a right to a lawyer, established in the 6th
Amendment of the Constitution is fundamental to our
justice system of justice. We have a problem
statement, which again we’ll be working on about how
the tens of thousands accused, their overburdened
public defenders, high caseloads, seven
minutes per case. Things like that
we’ll be testing that definition of a problem. We’ll be working through that. And then I’ll be offering
some solution statements. And these obviously
could vary by what piece of legislation or
policy that you’re working on at any one time. But it references again
that we should all have a national– for example,
in this case, a standard of justice for all people. If we had to boil it down
at this point to a 30-second message, we’d say, “Today, the
right to an attorney guaranteed in the Constitution exists
in name only in many parts of the country where caseloads
are so high the public defenders can average just
six minutes per case– seven minutes per case. It’s time to set
national standards to ensure that public defenders
and court appointed attorneys have the training,
time, and resources necessary to do their job.” Thank you. SPEAKER 1: Thank you so
much, Nancy and John. That was really helpful
and really interesting. Before we move on to our last
piece of the presentation today, does anybody have any
questions for John and Nancy you can either text
them into the Q&A box, or raise your hand? I’ll just pause for a minute
to see if anybody does. Great. Well thank you very much, again. And now last but not least– KARA: I’m sorry to interrupt
but there is one more question. Actually, there are a couple
of questions coming through. The first one is
from Ernie Lewis, and his question is, what
is the biggest change you’ve seen since the last
study on indigent defense in the early 2000s? NANCY BELDON: Hmm. John? JOHN RUSSONELLO:
That’s a good question. NANCY BELDON: Let me say that
I think that what we’ve seen is that there’s not
a lot of change. There isn’t a lot of– we haven’t done the
quantitative yet. So the things that we heard
in the groups this time were very similar to– and the levels of
lack of understanding to what we’ve known from before. JOHN RUSSONELLO: I can say,
probably the only changes– and this is not
related primarily to the indigent defense, they’re
related to capital issued– id there is more of a pushback
against the federal government doing things. That’s something. But we didn’t hear
as much of that I think it was about six years
ago, seven years ago, when we did the last study
seven or eight years ago. That’s the only difference
that I can see right now just on the focus groups. We’ll look at it more
carefully in the polling. But there’s more
of a the pushback against the federal
government doing anything. NANCY BELDON: If any
of you have ideas about you’re hypothesis
about what that might be, you should shoot
us an email and let us know because
we’re in the process now of starting to draft the
questionnaire for the survey. KARA: And it looks like we
do have a couple more here. From Andrew Davies,
I have, what do you think people
meant when they said they wanted national standards? Are they thinking of a
document that simply states those standards, or
are they really saying they want the
services themselves to be standardized nationally? JOHN RUSSONELLO: I’m not
sure they made a distinction between those two things. I think their idea of
national standards, from what I can tell, could
be a standard guideline that the states would enforce. NANCY BELDON: Yeah. I’m not sure that– we’re the ones that put national
standards in front of them. We define them you
know the way that– and I can go back to
where we were here. Do I still have the control? KARA: Yes, you do. NANCY BELDON: These first two
up here, “national standards for states to follow,”
and qualifications, that’s as far as we went. And as John said, I’m not sure
that we really were deeply in– we didn’t really make people
think deeply about this. KARA: And then I have
a question from– I’m sorry, I might mispronounce
your name, but [? Kaytren ?] Johnson. And the question is,
did any of the panelists have experience with
the criminal justice system either themselves or
close family and friends? And if, so did you see a
difference in their responses? NANCY BELDON: We absolutely
had people in the groups who had experience. I would say that the
groups rallied around them. We had one woman
who had herself– she was the classic
example of having done something small, like
shoplifting when she was drunk. She didn’t know
what she was doing, walked out of a
store with something. And it snowballed into
a major thing of her in jail a long time, losing her
job, her kids going to foster care, et cetera, et cetera. In other groups, we had
people whose children had been defended by
a public defender. And I think that
those experiences were things that actually did of
course, color the conversation. And people did sympathize
with those people. And it did help illustrate
the needs, and make it real. Because everything we
proposed, we put out there as ideas were backed up by the
actual experiences of people. JOHN RUSSONELLO: The experiences
of people, especially people who had knowledge
of the system, we very similar to the perceptions
or prejudices of people who had no knowledge of the system. They were very similar. For instance, there
was nobody who had knowledge, who had been
through the system themselves, who said, I had the best
lawyer I could possibly have had as a public defender. Or somebody who said
the public defender didn’t care at all about me. They didn’t say that. Those two extremes
they didn’t hear. You heard somewhere
in the middle, that they were under
resourced and overworked. It was, they did
the best they could. That was the view
of the people who had experience in the system. And it was also the view
of the people who had no experience in the system. So that was interesting. NANCY BELDON: It was
interesting to me that here are groups that are
pulled how focus groups are. They are pulled more
or less at random from people who are willing to
come to a group and take part. They had to get the
requirements we wanted. They had to be Democrats,
or Republicans, or whatever. Then you get this group of
random people in the room. And in every group, you had
close personal experiences with this. And which will be another
thing that we will want to look at in the polling. For example, we know
in lots of things where you have personal
experience, what a difference that
makes for attitudes. SPEAKER 1: Great. Thank you both so much. And I think at that point,
we will move on to Ivan to bring us on home. IVAN DOMINGUEZ: Great. Let me bring up the slide. So while I’m speaking everyone,
if you could make a note or save this slide
of my email address, the campaign’s Facebook and
Twitter handles, as well as the website,
r2cnationalcampaing.org. As you can see on these
various platforms, and as I’m certain
you heard today, there is a whole lot
going on in the campaign. And it’s all very,
very exciting. I had the privilege
of getting to attend focus groups live and see
Beldon, Russonello strategies in action. And Nancy and John are
really the gold standard. I’m really thrilled that they
were selected for this project. And very much looking forward
to continuing to work with him and see the final product
come in a few months after the next
stage is completed. As far as social media
and website are concerned, I would be remiss
not to give a shout out to my incredible colleague
Ezra Dunkle-Polier, who is a driving force behind the
robust social media campaign that we have been on
for several months now as a part of this campaign. And again, I encourage
you to follow on Twitter, to like on Facebook, and
to visit the website. The website aggregates
a host of material from reports and publications to
news stories to organizations’ websites, and much more. And what I would like
to very much encourage all of you on this call to
do, and anyone who is not on this call who listens to
this webinar at a later date, is to keep in mind that this
is about the right to counsel consortium, the
campaign, it’s about you, it’s about your participation. If you’ve got people in
your organization who have written op-ed pieces,
if you’ve got reports, if you’ve got news
articles of interest, whether they feature the
work of your organization or are just third party
articles that you think are important to bring to the
attention of the consortium members and the general public
who is keeping up with what’s going on in this
campaign, by all means, please send me links so that
we can get that on the website, include materials
in the newsletter, and on Twitter, and on Facebook. This is what we make of it. And I want to strongly encourage
you to be sending materials our way so that
we can share them with the community
of interested folks who are working very
hard on this campaign. So thank you. And like I said, all
of the information you need to do all the
things I just articulated in three minutes or less are
on the slide in front of you right now. Thank you. SPEAKER 1: Thank
you, Ivan so much. And thank you
everyone who’s been listening in this whole time. I know that we’re
a little bit over, so I understand that some
people need to close. But before ending
this webinar, I would just like to open up
the floor to other consortium members. If there are any
updates and activities that are going on, if
people want to share. Or if anybody has
any other question, please either send it into
the Q&A or raise your hand and we will call on you now. It looks like we do have one
comment and question here. And I will let you,
panelists, if you guys maybe want to take a stab
at this one first. Warren Johnson
says, I just heard from a friend of mine
in Washington state that the people there who
need appointed attorneys are charged as much as
$10,000, and especially in the instances when
those people go to prison, the state adds hefty
interest charges. How can we fix that? Guys? David, let’s start with you. David, do you have any
thoughts on that question? DAVID CARROLL: Well, it’s a
big problem in our country, the attempts to
have the poor carry the funding for the
right to counsel through these types of
recoupment programs. I’m not so sure that
numbers get up to $10,000. That may be what– it’s called a partial
reimbursement, where someone’s been determined
to be partially indigent. And if it’s a significant felony
case, where representation is several tens or even hundreds
of thousands of dollars, it might be something like that. But that doesn’t change
the question, which is when someone is indigent
they shouldn’t then have all these fines and
fees assessed on them, including their costs
of representation because it becomes a spiral
where they’re then jailed for failure to pay, and
they get a whole other set of charges assessed on them. We need to realize that when
someone is declared indigent, they’re indigent. And the best way to do
that is to challenge it through litigation, but also
build structured indigent systems where the defense
attorneys are free to advocate in the interests of the
attorney, including fighting the costs of reimbursement if
that person can’t afford it, or simply not have these
types of recoupment programs out there. So it’s a combination
of the continuing to challenge the system
through litigation but also doing system
building so that states have truly independent
systems to fight these problems on their own. SPEAKER 1: Great. Thank you so much, David. And it doesn’t look
like it this time we have any other
questions or comments. Once again, I just really
want to thank our panelists for taking the time
out of their day to share all of this
information with us. And also thank all of you
for staying on the call the entire time and
participating in the webinar. If anybody has any
other questions, please feel free to reach out to us
at the Justice Programs office. As you can see right
now, our project contacts are Preeti Menon and Kim Ball. Their email addresses and
phone numbers are there. You can also email the
Justice Programs office here at [email protected] Thank you again so much. If you could please participate
in the survey at the end of this when you close out. It should only take
a minute or two. And that will be very
helpful, as well. So thank you so much and
have a wonderful day.

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