LOUISIANA INDIGENT DEFENDER BOARD

REGULAR BOARD MEETING

LOUISIANA SUPREME COURT BUILDING

SECOND FLOOR CONFERENCE ROOM

AUGUST 18, 1995

MINUTES

BOARD MEMBERS PRESENT: Thomas Casey, Chair; Dr. Ben Barron; Dorothy Bonsack; Victor Bussie; Samuel Dalton (by proxy); Timothy Daniels; Camille Gravel (by proxy); Leah Guerry (by proxy); Rebecca Hudsmith; Wayne Lee; Robert McLeod (by proxy); Herman Robinson; Sonja Spears, Secretary-Treasurer; Walter M. Sanchez, Vice-Chair; and Henry Walker.

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

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 Chair of the Board.

2. Roll Call. The Chair recognized the members of the Board present for the meeting and noted the proxy executed by Robert McLeod and given to Thomas Casey, the proxy executed by Samuel Dalton and given to Jelpi Picou and the proxies executed by Camille Gravel and Leah Guerry 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 Dr. Barron to approve the minutes of the Board's June 23, 1995 meeting. Mr. Walker seconded the motion, which passed without opposition.

4. Schedule for Board Meetings. The Chair then moved to set the dates for the remainder of the fiscal year. After discussion, the Board set the following meeting schedule: October 13, 1995, December 1, 1995 (tentative), January 26, 1996, March 15, 1996, May 3, 1996 and June 14, 1996. It was agreed that the next Board meeting would be in New Orleans at a location to be announced. The Chair instructed the staff to inquire about the availability of the Supreme Court Conference Room for the October 13, 1995 meeting.

5. Review of the Annual Report. The Chair then directed the staff to distribute the Annual Report. After discussion of the Report, Mr. Bussie moved that the Board adopt the Annual Report. The motion was seconded by Mr. Walker and passed without objection.

6. Review of 1994-1995 Fiscal Year. At the direction of the Chair, the staff reviewed the financials for the prior fiscal year. The staff reported that it could not complete the report on fiscal year 1994-1995 without the financials from the Judicial Administrator's Office. Those financials will not be available to the staff until September. The staff noted that all funds for the year had been dedicated and the sum of expended and dedicated funds totaled five million dollars.

7. Capital Grant Disbursements. Upon request of the Chair, the staff gave an update on the capital block grants approved by the Board on June 23, 1995. All grants approved by the Board were disbursed except the grant to the First Judicial District. The First Judicial District grant was not disbursed as the district had implemented legislation raising court costs to $30.00 in that district. The staff explained that it had had several discussions with Mr. Gordon Bartage, former Chair of the First Judicial District Indigent Defender Board, regarding its legislation to increase the statutory maximum and the effect the legislation would have in the event the district judges did not vote to increase court costs from $25.00 to $30.00. Mr. Peter Flowers, Chair of the Indigent Defender Board of the First Judicial District, told the staff that the district was not at the statutory maximum at this time.

The staff recommended that the $50,000 previously dedicated to the First Judicial District be rededicated to the Second Judicial District to cover existing capital cases being funded by the LIDB. Upon motion of Mr. Sanchez, seconded by Mr. Walker, the motion to rededicate the funds from the First Judicial District to capital cases in the Second Judicial District passed without opposition.

8. Capital and Expert Witness Programs Review. The staff presented a review of the Capital and Expert Witness Programs, at the direction of the Chair. The Board has funded fifty-nine capital cases in whole or in part. In the Expert Witness/Testing Fund, the Board had authorized funding in twenty-three cases. A recent decrease in applications to this fund was noted by the staff. When asked the cause of the decrease in applications, the staff opined that local boards are concerned about the confidentiality of LIDB records.

The Board was informed that the Executive Committee had authorized the staff to pursue a capital conflict panel contract with the Orleans Indigent Defender Program. The district judges and the chief public defender had given approval of the concept. The Board was presented with proposed figures for the panel as well as a financial update on the costs associated with LIDB funding of capital conflict cases in Orleans Parish.

Under the proposal the LIDB would contract with the Orleans Indigent Defender Program. Funds would be paid on a monthly basis to the OIDP, which would in turn pay the panel managing attorney. The managing attorney would assign and monitor the cases and have a case load of six pending cases. In exchange for funding, the panel attorneys would keep accurate hours and train members of the civil bar willing to accept capital appointments. This arrangement would enlarge the pool of certified counsel.

In the course of investigating the feasibility of such a panel it was learned that as of the last week in July, there were 92 pending first degree murders in Orleans Parish. Not all of these are OIDP cases, however the number was nearly three times the capital case load of 36, reported by the OIDP in its year end case load report.

Upon motion of Mr. Lee, seconded by Mr. Sanchez, and without opposition, the conflicts panel proposal was approved, giving authorization to the Executive Committee to approve the final contract.

At the request of Ms. Hudsmith, the staff reported on its discussion with Mr. David Brock, Federal Death Penalty Resource Counsel, regarding a ranking system to more accurately determine which of the capital cases would actually proceed to trial. According to Mr. Brock, the Federal Death Penalty Resource Counsel utilizes the same method currently employed by the LIDB staff.

9. Address by the Chief Justice. The Chief Justice welcomed Justice Lemmon and Justice Dennis. He acknowledged and praised the Board for its work, stating that he respected the Board's independence. The Chief Justice also acknowledged the work of Anna Paxton, the Human Resources Coordinator for the Supreme Court.

He then discussed the sunset provision of paragraph (S) of Rule XXXI, as well as paragraph (C)(8) which requires the Board to draft and present a plan to the legislature for the continuation of a statewide Board. The Chief explained that while the Board had been diligent in its work, there was insufficient data regarding the Board and its programs to take to the legislature. The Chief Justice asked the Board for a resolution extending the sunset provision in paragraph (S) of Rule XXXI from December 31, 1995 to December 31, 1997 and extending the drafting and presentation of a plan to the legislature to March of 1997. In addition to the resolution, the Chief Justice requested an update on the Board's activities, to be presented to the Conference.

After further discussion, the Board on motion of Mr. Lee, seconded by Mr. Sanchez, approved the resolution extending the sunset provision to December 31, 1995 without objection. Mr. Bussie then moved to extend the date for presenting a plan to the legislature from March, 1995 to March, 1997. Mr. Walker seconded the motion which passed without objection.

10. Capital Certification Program Update. The Chair directed the staff to present the number of attorneys who had been certified as Trial Lead Counsel, Trial Associate Counsel, Appellate Lead Counsel and Appellate Associate Counsel. Based on the action taken by the Review Subcommittee and the Executive Committee earlier in the morning the number of certified counsel is as follows: Trial Lead Counsel, 78; Trial Associate Counsel, 61; Appellate Lead Counsel, 21; and Appellate Associate Counsel, 27. The staff noted that the number of applicants had increased since the first list was published on June 12, 1995.

11. Update on the NLADA Conference. With the permission of the Chair the staff presented an update on the National Legal Aid and Defender Association Annual Conference (NLADA). All panelists have agreed to attend.

12. Other Business. The staff presented the new travel vouchers approved for use by the Judicial Administrator's Office. Copies of the applicable federal tax laws were also made available.

A letter sent by Mr. James Boren acknowledging and thanking the Board members for their work was presented to the Board.

At the direction of the Chair, the staff presented a request from Mr. Sanchez regarding Board policy as to whether the Board would allow Board members appointed in capital cases to receive payment from Board funds. Mr. Sanchez asked to be recused from this discussion and vote. The staff circulated the opinion of the Commission on Ethics for Public Employees issued under Ethics Commission Docket No. 88-164. In that opinion the Commission concluded that the Code would prohibit members of the district indigent defender board from being appointed by that Board to represent for compensation indigents accused of crimes.

Mr. Lee and the Chair questioned whether this Ethics Commission opinion regarding district indigent defender boards was distinguishable. The Board engaged in a general discussion of the Ethics Commission opinion and the problems associated with board member remuneration. Mr. Lee moved, and Ms. Spears seconded, that the Board adopt a policy prohibiting its Board members from receiving LIDB compensation when serving as appointed counsel in capital cases. The motion passed without objection.

The Chair then asked the staff to present the action taken by the Executive Committee on the Court approved language of Chapter 5 Early Notification, Assignment and Continuous Representation of Indigents. The staff briefed the Board and invited them to comment prior to the Board's next meeting in October.

At the request of the Chair, the staff discussed the growing concern regarding the absence of specific guidelines regarding screening, the uniform determination of indigency and recoupment, expressed by members of the Cost Containment Advisory Committee. The staff noted that the Board had issued Chapter 3: Determination of Indigency and that the Rules Advisory Committee was working on a recoupment statute but that the committee members seemed to feel that more guidance regarding these issues should be forthcoming.

Based on its lack of expertise and current work load, the staff recommended that it be authorized to gather proposals for a study which would address the issues of screening, the uniform determination of indigency and recoupment. The staff also suggested that the study should provide the Board with several workable options for screening, recoupment and indigency determinations which have worked well in other states as well as proposed legislation. The proposed deadline for the recommendations and legislation would be early winter.

Mr. Lee moved that the Board authorize the staff to seek such proposals and make a recommendation to the Executive Committee which would authorize the expenditure. The motion was seconded by Ms. Bonsack and passed without opposition.

The proposed amendments to the Recruitment, Selection and Promotion Policies and Procedures of the LIDB were presented. The staff explained that Anna Paxton, Human Resources Coordinator for the Supreme Court, had suggested two changes in the policies. After discussion, Mr. Sanchez moved that the amendments be adopted. Mr. Walker seconded the motion, which passed without objection.

The staff then presented Mr. McLeod's concern that perhaps the staff should not be given proxies by Board members. After a general discussion, Mr. Lee moved to table the discussion until Mr. McLeod had an opportunity to present his views.

At the request of the Chair the staff presented a request for reimbursement from the Board for Louisiana State Bar Association dues and membership fees as well as payment of American Bar Association dues and membership fees. The staff reported that this was the policy of the Judicial Administrator's Office and explained its desire to receive certain ABA publications. On motion of Mr. Sanchez, seconded by Mr. Walker and without opposition the Board approved the reimbursement and payment of these membership dues and fees.

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