LOUISIANA INDIGENT DEFENDER BOARD

ORGANIZATIONAL MEETING

LOUISIANA SUPREME COURT BUILDING

SECOND FLOOR CONFERENCE ROOM

JULY 13, 1994

MINUTES

BOARD MEMBERS PRESENT: Dr. Ben Barron; Dorothy Bonsack; Thomas A. Casey; Samuel S. Dalton; Timothy F. Daniels; Camille F. Gravel, Jr.; Leah Guerry; Rebecca L. Hudsmith; Wayne J. Lee; Walter M. Sanchez; Sonja M. Spears; and Henry Walker.

SUPREME COURT JUSTICES PRESENT: Chief Justice Pascal F. Calogero, Jr.; Associate Justice James L. Dennis; Associate Justice Jack Crozier Watson; Associate Justice Harry T. Lemmon; and Associate Justice Pike Hall, Jr.

STAFF PRESENT: Dr. Hugh Collins, Judicial Administrator; Anthony Gagliano, Deputy Judicial Administrator; and Jelpi P. Picou, Jr., Interim Staff Director.

GUESTS PRESENT: Anthony Champagne; John Holdridge; Honorable Michael S. Ingram, Judge; G. Paul Marx; Clive A. Stafford Smith; Richard M. Tompson; and Nick Trenticosta.

1. Call to Order. The meeting was called to order by Chief Justice Pascal F. Calogero, Jr., acting Chairperson. Following the Call to Order, the Chief Justice introduced the Supreme Court Justices in attendance, the Board members, staff, and guests. The Chief Justice then thanked the members of the Board for agreeing to give their time to such an important and pressing concern.

2. Roll Call. The Chief Justice noted the members of the Board present for the meeting. On the basis of this roll call, it was noted that a quorum was present.

3. Welcoming Remarks of the Acting Chair. The Chief Justice welcomed the members and guests to the organizational meeting of the Board and noted that the press was informed, in the spirit of the Sunshine Law, of the meeting. The Chief Justice noted that the Supreme Court was an unwilling participant in the process of establishing the Board, but that it realized that action was necessary in light of the crises in the defense of indigent defendants throughout Louisiana--individuals were being inadequately represented and perhaps denied their constitutional rights. The situation caused many problems, including higher costs of retrials and other injustices. Working with the Legislature and the Governor's Office, the judiciary was successful in getting only five million dollars of the ten million dollars requested for a one-year budget. The Chief Justice pointed out that a Sunset provision was written into the rule in hopes that the Legislature will act and move the Board, through legislative action, into the Executive branch of government. As part of the Board's establishment, it will work to present legislation to have the Board fully funded and established through law. The Chief Justice added, however, that in the event the Legislature does not act, the Supreme Court reserved the option of extending the Board's existence under the Judicial branch. It was not the hope of the Supreme Court, commented the Chief Justice, that it would be forced to continue the Board under the present interim emergency rule.

With respect to the expenditure of funds, the Chief Justice admonished the Board to intelligently and soundly utilize the funds budgeted by the Legislature. The Chief Justice finished by cautioning the Board members to carefully consider the resolutions scheduled for consideration, particularly the interim emergency rules concerning the Capital Program and the Expert Witness/Testing Fund.

4. Staff Briefing on Supreme Court Rule. The Chief Justice called upon Dr. Hugh Collins, Judicial Administrator, to deliver a briefing on Rule XXXI of Part I of the Rules of the Louisiana Supreme Court, which established the Louisiana Indigent Defender Board. [See Appendix I.] Dr. Collins began by explaining the membership, terms and qualifications of the members. He then turned to the creation of officers of the Board and the required number of meetings each year. Dr. Collins then reviewed the most relevant powers and duties of the Board, including appointing a Chief Executive Officer and the establishment of the four major programs of the Board: Capital Litigation Program; Appellate Program; Expert Witness/Testing Fund; and District Assistance Fund.

Dr. Collins then spoke to the standards and guidelines which are to be required of those district indigent defender boards wishing to take part in the programs. The Rule also requires, pointed out Dr. Collins, that the Board must work to draft legislation to extend and continually provide for the Board. It was additionally noted by Dr. Collins that the Rule places a duty upon the Board to develop standards and guidelines for practicing criminal defense attorneys and to develop a program to encourage pro bono participation by the bar.

Speaking to the Capital Litigation Program and Appellate Program, Dr. Collins pointed out that the Board is charged with setting standards for attorneys defending individuals charged with capital crimes and handling cases on appeal. The Rule calls for a minimum of two attorneys to represent indigent defendants in capital cases and calls for the establishment of a certification program for such attorneys. Dr. Collins explained that the Expert Witness/Testing Fund was designed to work as a supplemental fund, calling for matching funds from the local indigent defender boards seeking assistance from the Fund. The District Assistance Fund was reviewed, with Dr. Collins stressing that guidelines must be established to provide resources on the basis of need in the various districts. As an ancillary to the establishment of the programs and funds, the Board is to set standards for local indigent defender districts, including minimum and maximum fees for attorneys and limiting the outside practice of law by indigent defender board staff attorneys.

Moving to a discussion of the promulgation of Rules by the Supreme Court, Dr. Collins explained that the Supreme Court retains oversight authority over the Board and has the authority to promulgate and/or take notice of the programs, guidelines and standards developed by the Board. As noted by Dr. Collins, the Rule requires the Board to keep financial and personnel records and to justify all expenditures of public monies. Dr. Collins also informed the Board that the Rule provides that he be acting Chief Executive Officer until that time the Board is able to hire permanent staff.

The Rule establishes an Executive Committee and a Cost Containment Advisory Committee. The Executive Committee's powers and duties are explained in the rule. The Cost Containment Advisory Committee is charged with reviewing and commenting on the expenditures of the Board and such other financial matters as may be determined by the Board's chairman.

Dr. Collins ended by noting that a sunset provision was written into the Rule, with hopes that the Legislature would act prior to December 31, 1995.

5. Swearing In by Justice Jack Crozier Watson. With an introduction of the Chief Justice, Associate Justice Watson began by recognizing, on behalf of the associate justices, the leadership demonstrated by Chief Justice Pascal F. Calogero, Jr. in developing and implementing the Rule and the Board. Associate Justice Watson then administered the Oath of Office: "I do solemnly swear that I will support the constitution and laws of the United States and the constitution and laws of this State and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a member of the Louisiana Indigent Defender Board according to the best of my abilities and understanding. So help me God."

6. Election of Officers. The Chief Justice then moved to the election of officers of the Board. Upon the opening of elections, Mr. Dalton nominated Thomas A. Casey for Chairperson, which nomination was seconded by Mr. Gravel. Without further discussion, Mr. Sanchez moved to close the nominations and Wayne Lee seconded. Thereafter, by unanimous vote, Thomas A. Casey was elected Chairperson. [See Appendix II.]

Upon Mr. Casey's election, the Chief Justice welcomed Mr. Casey and turned the meeting over to the newly-elected Chair.

The Chair moved to the next order of business, that of electing a Vice-Chairperson. Camille Gravel, Jr. nominated Walter Sanchez, which nomination was seconded by Mr. Walker. Upon motion of Mr. Dalton, and without objection, the nominations were closed. Unopposed, Mr. Sanchez was elected Vice-Chairperson. [See Appendix II.]

Moving to the election of Secretary-Treasurer, Ms. Guerry nominated Sonja M. Spears for Secretary-Treasurer, which motion was seconded by Mr. Lee. Upon motion of Mr. Sanchez, the nominations were closed, without opposition, and the Chair recognized Sonja M. Spears as Secretary-Treasurer. [See Appendix II.]

The Chief Justice, following the election of officers, commented that the Supreme Court had taken the position that it would not recommend particular individuals as officers and commended the Board for having chosen capable and qualified officers.

7. Adoption of Bylaws. The Chair called upon Mr. Gagliano and Mr. Picou to brief the Board on the proposed Bylaws. [See Appendix III.] Mr. Gagliano noted that Articles I through III of the Bylaws essentially tracked the requirements of the Rule as adopted by the Supreme Court, including the creation of the Board, its powers and duties, the qualifications and terms of the members, quorum, and actions.

In Article IV, it was recommended that "designated representatives" be restricted in the Bylaws, including that the designated representative could not be another board member, that the officers of the Board be advised of the use of a designated representative, that a written proxy form be used, that specific votes on official actions be written, that the designated representative would count toward a quorum, that a majority of board members present must concur in the adoption of any official resolution of the Board, and that designated representatives would not be entitled to per diem or reimbursement of expenses.

Article V, it was noted, provided for the establishment of an Executive Committee and a Rules Advisory Committee. The staff recommended that an Executive Committee be established as allowed by the Rule and that a Rules Advisory Committee be approved, which would include representatives from the Board, the Louisiana State Bar Association, the Louisiana Public Defenders' Association, the Louisiana Criminal Defense Lawyers, and the District Judges Association. Other ad hoc committees were authorized, with members being appointed by the chairperson.

Article VI, dealing with Fiscal and Personnel Management, was explained. The article spelled out the relationship between the Board and the fiscal department of the Judicial Administrator's Office. Per diem and reimbursements were fixed in the Bylaws as $0.29 a mile for travel, coach rate for air fare, $40 a day for meals, $75 a day for lodging, and actual cost plus 10% tip for taxi service.

Articles VII, VIII and IX, as noted by Mr. Gagliano, dealt with the Board's domicile, fiscal year, and amendments to the Bylaws.

The staff recommended that the Bylaws be adopted as an interim measure in hopes that the Board will later have the opportunity to further develop the Bylaws.

Mr. Gravel moved that the Bylaws be adopted, to which Mr. Sanchez seconded the motion. Without objection, the Bylaws were adopted by the Board. [See Appendix IV.]

The Chief Justice, recognized by the Chair, further explained that the Bylaws should be viewed by the Board as interim in nature and that after further study, the Board should feel free to amend the Bylaws as it saw fit.

8. Schedule of Meetings. The Chair then moved to set a schedule for meetings of the Board for the remainder of the calendar year. After discussion, the Board adopted the following schedule through December 1994: Meeting 1: Saturday August 27, 1994 (full-day retreat); Meeting 2: September 16, 1994 at 2:00 p.m. (alternate date is September 23, 1994); Meeting 3: October 14, 1994 at 2:00 p.m. (alternate date is October 21, 1994); Meeting 4: December 2, 1994 at 2:00 p.m. (alternate date is December 9, 1994). [See Appendix V.]

The Chair noted that a schedule of the meetings of the Executive Committee and Rules Advisory Committee would be finalized at a later date, after the members of the committees were appointed. The Chair also asked that any board member interested in serving on the committees contact him.

A motion by Mr. Sanchez was made to adopt the schedule of meetings as noted above, which motion was seconded by Mr. Lee. Without objection, the schedule was adopted by the Board. [See Appendix V.]

9. Delegation of Responsibility for Development of Forms/Report Formats. The Chair then moved to Resolution 4.94, which delegated the responsibility for the development of forms and report formats to the Executive Committee. The Executive Committee would have discretion to present any developed format back to the entire Board. Without discussion it was moved by Mr. Gravel and seconded by Dr. Barron that Resolution 4.94 be adopted. The motion was passed without dissent. [See Appendix VI.]

10. Adoption of Emergency Interim Rules. The Chair moved to the consideration of Resolution 5.94. Mr. Gagliano was called to give a briefing, wherein he introduced the emergency interim rule of the Capital Program. [See Appendix VII.] The Rule provides for the procedure whereby local indigent defender boards could apply to the Board for assistance in those capital cases falling within the authority of the Rule.

Section I of the Rule provides the discretionary nature of the Board's authority to provide assistance to applicants, including considering the overall availability of funds from the Board's budget.

Section II of the Rule provides that the Rule applies only to those indigent defendants charged with a capital crime, provided the grand jury indictment was issued on or after May 1, 1994 and an order of appeal has not been lodged.

Section III of the Rule provides that a qualified capital defense attorney is one who has performed defense services as lead counsel in at least one previous capital case. It was also recommended that an experienced attorney not be considered available if he or she is presently involved in a capital case or has an active felony caseload of 200 or more.

Section IV of the Rule provides that within the discretion of the Board, it may provide to a local indigent defender board, at the request of the local board and a judicial finding of need, an experienced capital defense attorney if none is available to the local board.

Section V of the Rule provides that within the discretion of the Board, it may provide assistance to a local indigent defender board in need of supplemental funds to pay a qualified capital defense attorney within its district. Under this Section, the local indigent defender board must demonstrate financial need, including that the maximum court costs are assessed by the board and other relevant financial information.

Section VI of the Rule provides that the Board may, if the previous criteria are met, provide the requesting local board with an experienced capital defense attorney or the funds to defray, in part, the costs associated with appointed counsel.

Section VII of the Rule provides that in addition to the cases specifically covered by the Rule, the Board may act in cases it finds compelling.

At the recommendation of the staff, paragraph B of Section VII was deleted as unneeded in light of the inclusion of this provision in the Expert Witness/Testing Rule. This recommendation, not substantive in nature, was accepted by the Board.

Mr. Gravel spoke to the emergency nature of the Rule, and recommended that the Board take some action today. Mr. Marx, a guest, recommended to the Board that limiting counsel to only one active capital case would overly restrict the Board's ability to appoint competent capital defense attorneys. Mr. Sanchez agreed. Several members of the Board voiced the opinion that the number of active capital cases referenced in the Rule should be raised to three. Mr. Holdridge addressed the board, noting that restricting caseload levels to any specific number might be problematical. Mr. Marx added that perhaps the Board could look to caseloads on a case-by-case basis. At the suggestion of Mr. Gagliano, the Chair recognized that paragraph B of Section III could be amended to simply reflect the discretion of the Board to consider caseload statistics. Ms. Guerry suggested the following language on this point: "For purposes of this Rule, the qualifications of an attorney under paragraph A shall be considered by the Board taking into consideration the attorney's involvement in current capital cases and the attorney's present caseload." At the request of the Chair, discussion was entertained on this recommendation, which was adopted by the Board without dissent. The staff was directed to make the necessary changes in Section III, Paragraph B of the Emergency Interim Rule for the Implementation of the Capital Program.

Mr. Daniels voiced his opinion that the Board should keep in mind the interim and emergency nature of the Rule and that, given the changes previously recommended, the Board should work to adopt this measure. With these remarks, the Chair then closed discussion on the Capital Program and requested a briefing from the staff on the Expert Witness/Testing Fund Rule. [See Appendix VIII.]

Section I of the Rule provides the discretionary nature of the Board's authority to provide assistance to applicants, including considering the overall availability of funds from the Board's budget.

Section II of the Rule provides that the defendants covered by the Rule are those charged with a capital crime--provided the grand jury indictment was handed down on or after May 1, 1994--and those indigent defendant charged with crimes which, if the accused is convicted, carry a mandatory sentence of life imprisonment at hard labor, provided the grand jury indictment was handed down on or after July 1, 1994.

Section III of the Rule provides that all requests for assistance must be accompanied by a judicial determination of the type of expert witness or specialized test required and the costs associated with such witness or test.

Section IV of the Rule provides that the local indigent defender board would be required to demonstrate financial need, including that the local board is assessing the maximum court costs allowed by law and would provide to the Board all necessary financial information.

Section V of the Rule provides that the Board would typically provide only 50% of the necessary funds, looking to the local board for the remainder of the costs.

Section VI of the Rule provides that the Board shall obtain information from national associations on the average fee schedules of expert witnesses and specialized testing and base its funding levels on these criteria.

Section VII of the Rule provides that the Board reserves the right to consider granting assistance to indigent defendants who are able to demonstrate a compelling need although not falling strictly within the confines of the Rule.

Mr. Lee opened a discussion on the level of fees to be paid to an attorney under the Capital Program or for witnesses and tests under the Expert Witness/Testing Fund. At this point, Mr. Sanchez moved to adopt the Rules as amended, which motion was seconded by Mr. Dalton.

Some discussion was had concerning the privacy issue involved in the handling of requests by the Board. Many members and guests voiced concern that the Board's actions on specific requests could be made public, which would not serve the purposes of the indigent defendants requesting assistance. It was unanimously agreed that the Rules should reflect that the Board would keep confidential all privileged matters supplied to the Board by applicants. Mr. Lee noted that there could be difficulty with processing applications prior to the Board's next meeting. The Chair suggested that the time it would take to fulfill the application requirements would more than likely result in any application being completed sometime around the next meeting of the Board. The Chair also suggested that the Board, as allowed in the Bylaws, could delegate the authority to process applications to the Executive Committee, although the Chair recommended that any action on this issue be delayed until the Board's next meeting.

Mr. Stafford Smith returned to the issue of the confidentiality of details of an application. Speaking as a practicing attorney, he voiced concern over the privacy issue, warning that without assurances of privacy, attorneys may decide not to apply for necessary funds. Mr. Sanchez agreed with these views, adding that delegating the authority to process the applications to the Executive Committee would keep the number of persons having access to the information small and further assure privacy to the applicants during this interim period before more specific procedures could be put into place. Mr. Dalton stated that the Board should strive to keep information private prior to the case's finality. Mr. Walker expressed his opinion that the confidentiality of applications to the Board should be extended beyond just "work product" included in the application. Ms. Hudsmith urged that the Board adopt an in camera procedure similar to that in place in federal jurisdictions, where all requests for expert witnesses and specialized testing be handled in private. The Board agreed with these positions and resolved to have Ms. Hudsmith work with the staff to clarify the private nature of the applications in the interim rules.

Mr. Marx expressed some concern over the process whereby he believed that any attorney could petition the Board for payment of his fees. He was concerned that the Board would be inundated with such requests and suggested that the Rule should be tailored to take requests only from local indigent defender boards. After some discussion, it was agreed that the Rule was designed to accept applications only if the local board, in conjunction with the trial court, agreed to the process. Mr. Dalton noted that the local boards, by the Rule itself, would be required to become involved in the application process.

Mr. Sanchez moved, and it was seconded, that the Board transfer to the Executive Committee the authority to process applications until the next meeting and that such applications should not be made public. Mr. Daniels expressed concern over the fact that the nature of the Board's rulings would forever be held from the public, taking the position that at some point the decisions of the Board to fund some applications and not fund others should be available to the public. Mr. Daniels agreed that information should be private only until the case is final. Mr. Walker posited that he believed the information provided in the applications should be held private no matter the circumstances of the case. Mr. Sanchez suggested that for purposes of the interim rules, all applications should be held private at least until the Board could further study the issues.

At the close of discussion, the Chair returned to the previous motion and second urging adoption of the Rules, with the Board directing changes in the Rule to insure confidentiality of the applications in addition to the previous amendments. Without dissent, the Emergency Interim Rule for the Implementation of the Capital Program and the Emergency Interim Rule for the Allocation of Resources from the Expert Witness/Testing Fund were adopted. [See Appendix IX.]

11. Appointment of Committees. The Chair noted that the committees were established with the adoption of the Bylaws. He again stated that any person wishing to be a member of any committee should contact the Chair.

12. Briefing on Per Diem and Reimbursement. Mr. Picou delivered a briefing on the requirement of members to provide the Judicial Administrator's office with appropriate documentation to allow for the payment of per diem and the reimbursement of expenses.

13. Briefing on the Cost Containment Advisory Committee. The Chair then called upon Dr. Collins to deliver a briefing on the Cost Containment Advisory Committee. Dr. Collins noted that the members of the committee had not yet been appointed, but that its first meeting was scheduled for September 26, 1994.

14. Other Business. When the Chair called for other business, Mr. Dalton expressed his position that the local indigent defender boards and district judges should be informed of the Board's actions and the adoption of the interim rules. The staff notified the Board that it would be responsible for disseminating the information. Mr. Lee stated that the Board should direct the staff to quickly develop a budget for the next meeting, attempting to project financial need across the state.

15. Adjournment. After completion of business, a motion was made, seconded and adopted to adjourn until August 27, 1994.