LOUISIANA INDIGENT DEFENDER BOARD

REGULAR BOARD MEETING

ONE AMERICAN PLACE, BATON ROUGE

MARCH 24, 1995

MINUTES

BOARD MEMBERS PRESENT: Thomas Casey, Chair (by proxy); Dr. Ben Barron; Dorothy Bonsack; Samuel S. Dalton; Timothy Daniels; Leah Guerry; Rebecca Hudsmith; Wayne J. Lee; Herman Robinson; Walter M. Sanchez, Vice-Chair (acting Chair); and Henry Walker.

STAFF PRESENT: Jean M. Faria, Chief Executive Officer and Jelpi P. Picou, Jr., Staff Director.

1. Call to Order. The meeting was called to order by the acting Chair of the Board, Walter Sanchez.

2. Roll Call. The Chair recognized the members of the Board present for the meeting and noted the proxy executed by Thomas Casey and given to Jean Faria. On the basis of these introductions, it was noted that a quorum was present.

3. Welcoming Remarks of the Chair. The Chair welcomed the members of the board and the staff and briefly reviewed the agenda for the meeting, explaining its purpose and scope. The Chair then entertained a motion by Mr. Daniels to approve the minutes of the Board's February 10, 1995 meeting; Mr. Walker seconded the motion, which passed without opposition.

4. Changes in the LIDB By-laws. The Chair moved to the proposed changes in the by-laws of the LIDB, noting that the proposed changes had been discussed at the previous Board meeting and were before the Board for its consideration. As originally proposed by Mr. Gravel, changes to Article IV of the by-laws would make it possible to execute a general proxy and allow another Board member to present that proxy at the designated meeting. The proposed changes would restrict a Board member to one proxy for any particular meeting and make more flexible the time limitations for notice to any officer. The staff also presented a revised "proxy form" which would correspond to the changes to Article IV.

After some discussion concerning the mechanics of executing the revised proxy, Mr. Dalton moved that the changes as previously circulated to the Board be approved. Dr. Barron seconded the motion. The motion passed without objection. Mr. Dalton then moved that the revised proxy form be adopted by the Board, to which Mr. Lee seconded. The form was adopted without objection.

A copy of the revised Article IV and the proxy form, as approved by the Board, are attached to these minutes.

5. Consideration of LIDB Expenditures and FY 94-95 Budget. At the direction of the Chair, the staff delivered a briefing on the budget as of February 28, 1994. All programs were within budget, as were the administrative expenses. There was some concern about the capital program because of the marked rise in capital cases around the state. The Board noted that it was approaching saturation point in the funding of capital cases under its original budget and concern was expressed by Mr. Dalton and Mr. Daniels over these circumstances. The staff confirmed that a large number of conflict capital cases were appearing and that the Board would not be able to meet demand under its present budget if the trend continued.

The staff recommended that the Board work to set aside some of its undedicated funds to cover capital cases which may be presented to the Board for funding. Mr. Lee suggested that beginning with the April legislative warrant, the funds approved for the appellate program ($31,250/mo.) be placed in the capital program for the remainder of this fiscal year. There was discussion over whether the $125,000 presently in the appellate program be used for any upcoming expenses, with general agreement that these funds should remain in the appellate program and be used to supplement the District Assistance Fund in the event this was necessary. Mr. Dalton moved that Mr. Lee's proposal be adopted, which was seconded by Mr. Lee. The motion to move the appellate funding to the capital program for April, May, and June of 1995 was approved without opposition.

6. Consideration of FY 95-96 Budget. The Chair then directed the staff to deliver a briefing on the proposed budget for the upcoming year. The budget, based on the $10 million request for legislative funding was reviewed in detail, including administrative expenditures, program expenditures, and the creating of a pro bono program and a technical assistance program. Several questions were directed at the staff concerning the monies reserved for the various programs, with Mr. Lee questioning the need for $500,000 in the appellate program. The staff took the position that the appellate program would be in place by the beginning of the next fiscal year and recommended that the dedication of funds remain until that time which the Board could review requests for expenditures from this program.

Mr. Dalton moved, which Dr. Barron seconded, that the proposed budget for FY 95-96 be adopted by the Board. The acting Chair noted that the Board was free to revisit the budget, specifically the program allocations, when more information was available. The motion to adopt the budget passed without objection.

7. Review of February DAF Disbursements and Requests. With permission of the Chair, the staff presented a list of those districts which had requested funds from the district assistance fund and which had previously been approved by the Board. The staff noted that the monies had been disbursed in accordance with the Board approved schedule of payments.

The staff then presented two remaining requests for funds--the applicants being the seventh and twenty-sixth indigent defender boards. A review of each application was made and each was found to be complete and within the guidelines adopted by the Board. Mr. Walker moved that the request for $32,000 from the 7th JDC IDB and the request for $33,500 from the 26th JDC IDB be approved. Mr. Lee seconded the motion. There was discussion directing the staff to handle the disbursements in an expeditious manner. The motion passed without objection.

8. Review of May DAF Application Process. At the behest of the Chair, the staff presented the guidelines and forms drafted for the next disbursement from the District Assistance Fund. The guidelines made no changes in those previously adopted by the Board and approved by the Supreme Court. The application itself added the requirement that those boards applying for funds supply the LIDB with a complete list--including name, address, and phone number--of all attorneys working for the district board. A streamlined version of the application was also presented, which did not change the substantive requirements for the applicants but made it easier for second-time applicants to update previously submitted data.

The preliminary benchmark, based on the original disbursement formula adopted by the Board and approved by the Supreme Court, was presented based on the budgeted $1 million fund balance. It was noted that the minimum award was set at $2,500, half the amount set as the minimum in the original $2 million disbursement. The setting of the minimum grant amount resulted in a total fund disbursement of $1,130,258, assuming every district board was eligible for a grant and that every district board applied for these monies. Mr. Lee suggested that the $130,258 be approved by the Board and that these monies be dedicated from undedicated funds. There was some discussion over which program should be used, with general agreement that the monies should be reserved in the appellate program and the expert witness/testing program.

Mr. Lee moved that the $130,258 expenditure be approved and that these funds should be reserved in both the appellate program and the expert witness/testing program in equal amounts. Mr. Dalton seconded this motion. Following discussion the motion passed without objection. Dr. Barron then moved that the application guidelines and forms be approved by the Board; Mr. Walker seconded the motion. The motion passed without objection. The staff was directed to notify the district boards of the next disbursement from the district assistance fund and immediately begin the application process.

9. Briefing on the Capital Program. With the Chair's permission, the staff presented a report on the capital program spending and the certification process. The capital spending was being funding near 100% of the allotted budget and, as discussed above, it appeared to the staff that a higher than predicted number of cases would be presented to the Board for financial assistance. It was reported that 50 applications for capital certification had been received by the Board and that these applications were being evaluated by the staff and a report prepared for the certification review committee. The staff requested that the Board approve a certification schedule targeting June 1, 1995 as the date to have the certification program in place. The staff also asked for permission to communicate with judges and applicants concerning the time line and the procedure in place for the continued update of the certification lists. The Board agreed that the educational materials should be sent out and approved the June 1, 1995 date as advisable. This motion was made by Mr. Walker, seconded by Mr. Dalton, and approved without opposition.

The staff briefed the Board on various options it had investigated to meet the need in the area of capital defense, including the regional approach and entering into agreements with offices of attorneys to handle a set number of cases at trial or on appeal. The Board revisited the proposals submitted by the Louisiana Crisis Assistance Center and the Loyola Death Penalty Resource Center and the staff related that it had spoken with various chief indigent defenders in an effort to organize contiguous geographical regions into areas to be covered under a contract with attorneys in the region. Ms. Guerry requested a briefing on the staffing of the Louisiana Crisis Assistance Center and whether that office would be available for contracting with the Board and/or district indigent defender boards in one of the regions. The staff related that LCAC was investigating the feasibility of a regional pool, which would include some attorneys in its offices.

It was also related that Michael Mitchell, chief indigent defender in East Baton Rouge, was interested in receiving the Board's assistance in establishing a regional panel--because of the large number of new capital cases--for conflict cases in the 19th judicial district. There have also been preliminary discussions with Numa Bertel of the Orleans Indigent Defender Program concerning the possibility of the establishment of a conflicts panel for that region.

Mr. Dalton moved that the staff be directed to seriously investigate the possibility of regional pools of attorneys willing to handle capital cases on the trial and appellate levels, work up proposed contracts and present them to the Executive Committee, which would be responsible for reviewing the work prior to any contract being presented for Board approval. Ms. Guerry seconded the motion, which passed without objection.

10. Expert Witness/Testing Rule. The Board next took up the proposed permanent rule for the allocation of funds from the Expert Witness/Testing Fund as forwarded by the Rules Advisory Committee. Ms. Hudsmith, Chair of the RAC, briefed the Board on the proposed changes, including opening the fund to all felony offenses, a streamlining of the application form, and the change in the cap for DNA testing from $1,300 to $2,000. Ms. Hudsmith also noted that the Committee recommended that the Board adopt a hierarchy of priority based on the charged crime. The Committee recommended that available funds should be channeled first to capital cases, then to cases involving charges carrying mandatory life imprisonment upon conviction, and then to all other felony charges. Ms. Hudsmith also impressed upon the Board that the Committee strongly recommended retaining the requirement that applications for supplemental funding be based on a trial court ruling finding the need for the expert or specialized test constitutionally required.

Following general questions concerning the procedures used to review the applications and the rationale behind some of the Committee's recommendations, Mr. Lee moved that the Expert Witness/Testing Fund rule be adopted by the Board as proposed by the Committee. Mr. Daniels seconded this motion, which passed without opposition. Ms. Guerry then moved that the schedule of charges, as proposed by the Committee, be adopted to reflect a recommended cap of $2,000 for DNA tests. This motion was seconded by Mr. Dalton and passed without objection. Mr. Daniels next moved that the revised application form, as forwarded by the RAC, be approved by the Board; Mr. Lee seconded the motion. The motion passed without objection.

The Chair directed the staff to communicate the change in the rule to the Supreme Court and all interested parties, including the district indigent defender boards and the Louisiana District Attorneys Association.

A copy of the rule, schedule, and application form are appended to the minutes.

11. Expert Witness/Testing Fund. At the direction of the Chair, the staff briefed the Board on the expenditures from the expert witness/testing program, noting that applications were picking up and that thus far the Board was able to meet the need demonstrated by the applications. It was noted that applications were increasing as more districts learned how to navigate the application process and that a number of applications should be expected in light of the Board's approval of opening the program to all felonies.

The staff then asked to be allowed to address the Board on the issue of expert witness and specialized testing bills which pre-dated the Board-imposed July 13, 1994 review date. Mr. Sanchez noted that the revisiting of this tabled issue was due in part to an application arising in the 14th JDC Indigent Defender Board, on which he serves as chair. In light of these circumstances, he recused himself from any discussion or vote on the issue.

The staff then related some confidential and privileged information on the pending requests, noting that alternative funding sources had been foreclosed by the legislature and that the district boards could not afford to satisfy the financial obligations. The staff also presented its educated calculation of the Board's financial obligation in the area of past bills, and stressed that the staff's position was that such applications should be evaluated on a case-by-case basis with funding going only to those district boards which could demonstrate actual financial need and only after the Board considered its own financial status.

Mr. Lee noted that the Board was required, by its own rules, to evaluate its budget and the availability of funds prior to approving any application for supplemental funds and expressed his opinion that the rule would protect the Board from over extending itself. He then moved that Board consider the pending applications, and all similarly situated applications if submitted, on a case-by-case basis and approve grants only after a review of the program budget. Dr. Barron seconded the motion. The motion, as made, passed without objection.

12. Technical Assistance Program. At the direction of the Chair, the staff briefed the Board on the final disbursements to district indigent defender boards to cover the costs associated with the last chance capital seminar co-sponsored by the LIDB. The staff also reported that the capital manuals and motions discs were purchased and were being distributed to attorneys presently handling capital cases who were not able to attend the seminar.

13. Recess. At the recommendation of the Chair, the Board meeting was recessed for ten minutes.

14. Staffing. The meeting was called back to order by the Chair. Mr. Picou, LIDB staff director, was excused from the meeting while Jean Faria, the Chief Executive Officer, reviewing staffing matters.

Ms. Faria presented to the Board a proposal that the employment position of Deputy Chief Executive Officer be approved by the Board. A copy of the job description, previously reviewed by the members of the Board, was distributed and discussed. Dr. Barron moved that the position of Deputy Chief Executive Officer be approved, that the salary reflect the level approved in the FY 95-96 budget, and that the board allow promotion from within. Mr. Dalton seconded the motion, which passed without objection.

The Board then moved to consider the position of Grants Manager I, previously reviewed by the members. Ms. Faria recommended that the Board approve the position in place of an attorney position in an effort to more adequately address the Board's staffing need. The position would allow for grants management and require someone who would be able to handle clerical overflow and computer management. The position would also demand a lower salary than previously approved by the Board. Mr. Lee moved that the Board adopt Ms. Faria's recommendation, open the position, authorize the staff to advertize, and authorize the Chief Executive Officer to fill the position. Mr. Daniels seconded the motion, which passed without objection.

At the direction of the Chair, the Board opened discussion on the hiring of the administrative secretary. Ms. Faria reported that she was in the process of reviewing applications and planned, with the Board's permission, to begin the interviewing process for the finalist. Mr. Lee moved that the position, previously approved by the Board, be filled at the Chief Executive Officer's discretion. Ms. Bonsack seconded the motion, which passed without objection.

15. Legislative Briefing. At the direction of the Chair, the meeting was opened to a general discussion of legislative initiatives and articulated positions of the Board. Ms. Guerry recommended to the staff that it communicate with legislative staff and offer any assistance the Board could provide to them. She also suggested that the staff speak with staff persons in the governor's office and the district judges association in order to clearly articulate the Board's position on funding for the upcoming fiscal year.

Board members were given lists of representatives and senators and general discussion was had concerning each member's ability to contact legislators in his or her area. With some revision, the Board approved a one page brochure highlighting the Board's services and accomplishments since its inception on July 1, 1994.

At this point, the Chair directed the staff to work toward developing a meeting schedule for the Board which would run through the end of the fiscal year, paying particular attention to conflicting dates for legislative meetings.

No other business was called to the attention of the Board.

16. Adjournment. After completion of business, a motion was made, seconded and adopted to adjourn.