LOUISIANA INDIGENT DEFENDER BOARD

 

                                        REGULAR BOARD MEETING

 

                              LOUISIANA SUPREME COURT BUILDING

                                SECOND FLOOR CONFERENCE ROOM

                                                OCTOBER 13, 1995

 

 

                                             MINUTES

 

 

 

BOARD MEMBERS PRESENT:  Thomas Casey, Chair; Dr. Ben Barron; Samuel Dalton; Camille Gravel (by proxy); Rebecca Hudsmith (by proxy); Wayne Lee (by proxy); Robert McLeod; Sonja Spears, Secretary-Treasurer; Walter M. Sanchez, Vice-Chair; and Henry Walker.

 

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

 

GUESTS PRESENT:  Anthony Gagliano, Deputy Judicial Administrator.

 

          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 Rebecca Hudsmith and given to Jean Faria, the proxy executed by Wayne Lee and given to Henry Walker and the proxy executed by Camille Gravel 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 August 18, 1995 meeting.  Mr. Walker seconded the motion, which passed without opposition.

 

          The Chair then noted with regret that Camille Gravel had communicated to the Chair and to the Supreme Court that he was resigning from the Board because he was no longer able to devote the necessary time and energy required of board members.  The Chair praised the work done by Mr. Gravel during the infancy of the Board, congratulated him on having given so freely of his expertise, time and wisdom during his service on the Board, and wished him well for the future.  The Chair noted that Mr. Gravel had recommended Mr. J. Michael Small as his replacement.  The Supreme Court concurred in Mr. Gravel's recommendation and Mr. Small had accepted appointment.  Mr. Small is to serve the remainder of Mr. Gravel's term, beginning October 27, 1995.

          Due to a conflict in scheduling, the Chair executed a proxy in favor of Ms. Faria and excused himself from the remainder of the meeting.  Mr. Sanchez assumed direction of the meeting as acting chair.

 

          4.  Review of Budget.  At the direction of the Chair, the staff reviewed the financials for the prior fiscal year.  The staff reported that the Board had achieved its budgetary goals for the 1994-95 fiscal year, with approximately $452,635 being dedicated for cases which had not come to completion.

 

          The staff presented its budget report for the months of July and August of 1995, noting that the Board had kept to its previously approved budget.  The Board was reminded that the first disbursement from the District Assistance Fund--totaling approximately $1 million would be expended on the first of November.

 

          Capital Program:  The staff noted that the Board was funding all or part of 73 capital cases throughout the state and was working closely with several district indigent defender boards to supply funding for future cases.

 

          Expert Witness/Testing Program:  The staff noted that the Board was funding all or part of the expert witness or scientific testing expenses of 26 cases throughout the state and that several applications were pending at the present time.

 

          District Assistance Fund:  The staff explained that the applications for grants from the DAF had been mailed to each of the judicial district indigent defender boards and that the application process would result in disbursements being sent by the first of November.  The staff noted that five districts continued to be ineligible to receive assistance because the districts did not assess the maximum court costs allowed by law and that another five to six districts have historically declined to participate in the grant program.

 

          Mr. McLeod commented that the heading "Disbursement Summary" should be modified so that it would not mislead district indigent defender boards into assuming that they would receive specific sums of money simply by asking.  Mr. Dalton and Dr. Barron agreed with Mr. McLeod's position.  Mr. Dalton recommended that the summary be labeled "Projected Disbursement" to avoid any confusion.  Mr. McLeod moved that the heading be changed in accordance with Mr. Dalton's recommendation; Dr. Barron seconded the motion, which passed without objection.

 

          Mr. Walker asked that the staff compile a report on those districts which--for whatever reason--have not participated in the grant program and to send this report to members of the Board.  The Chair directed the staff to comply with Mr. Walker's request.

 

          5.  Proposed Chapter 5 of Louisiana Standards on Indigent Defense.  At the direction of the Chair, the staff presented its report on the changes to Chapter 5 of the Louisiana Standards on Indigent Defense recommended by the Supreme Court.  The staff noted that the changes both expanded and contracted the duties of district indigent defender boards and that while no major problems existed in the language the staff wished to attempt once more to communicate with the Supreme Court to ensure that the possible ramifications from the changes in the language were anticipated.  The staff took the position that one further attempt would fulfill the Board's obligation to make the Court aware of possible problems with the language and that, absent the Court's reconsideration of the standard, the Board should proceed to promulgate Chapter 5 as approved by the Court.

 

          Mr. Walker expressed strong disagreement with the staff's recommendation.  Mr. Walker noted that without specific language directing indigent defender boards to make counsel available upon arrest that only pro-active boards would actually fulfill the spirit of the standard.  Mr. Walker encouraged the Board to make further attempts to revise the chapter and work with the Supreme Court to have it approved with a more detailed provision concerning the availability of counsel upon arrest.

 

          After further discussion, Mr. Dalton moved that the staff's recommendation be adopted; Dr. Baron seconded the motion.  Mr. Walker voted against the motion and exercised Mr. Lee's proxy as an abstention.  The remainder of the members, including the proxies executed in favor of Ms. Faria, voted in favor of the motion.  The motion passed:  7 yeas; 1 nay; 1 abstention.  The Chair directed the staff to make the appropriate inquires with the Court concerning the approved language of Chapter 5.

 

          6.  Partial Indigency Issue:  The Chair next directed the Board to turn its attention to the issue of partial indigency, prompted by an application for funding from retained counsel.  The staff reported the actions of the Executive Committee in deferring any decision on the specific funding request until the staff could further study the issue.

 

          The staff then briefed the Board on the history of partial indigency in Louisiana and noted that several cases were percolating through the courts, including a case in the 16th JDC.  Ms. Faria explained that she had previously organized a study group to review these issues and hoped to produce a report for the Board to consider before it made a final decision on this issue.  At Ms. Faria's request, the study group was recognized as a working committee of the Board.

 

          Mr. Dalton expressed his concerns that the Board continue to segregate requests for expenses for attorneys from requests for experts and scientific tests in these partial indigency cases.  He also voiced some concerns over the possibility of any entity being able to monitor funds accepted by an attorney from a third party on behalf of an indigent citizen.  Mr. Walker directed the staff to study and report on possible negative reactions by the general public if the Board were to consider funding attorneys in partial indigency cases.  Mr. McLeod noted that some private attorneys do find themselves accepting cases as "retained" counsel without any hope of recovering costs or fees from the client.  He proffered that the indigent defender boards were in a position to take advantage of these private attorneys in not having to provide counsel in those specific cases.

 

          Mr. Walker called the question, moving that the staff continue to study the question and make periodic reports to the Board; Dr. Barron seconded the motion, which passed without objection.

 

          7.  Contract for Professional Services.  The staff reported that several proposals had been received and reviewed for the study to be done on the issues surrounding legislative changes to the laws dealing with the determination of indigency and appointment of counsel.  The Executive Committee had previously approved the proposal submitted by The Spangenberg Group, based in Boston.  The staff noted that the study and report should be completed by the end of the calendar year.

 

          8.  Request from 32nd JDC IDB for Investigative Pilot Program.  The staff briefed the Board on the Executive Committee's previous approval of the first of three pilot programs aimed at improving attorney support services through direct grants to defray the expenses of an investigator in targeted judicial districts.  At Mr. McLeod's request, the staff detailed the program, limited to three districts, and the data the staff wished to compile concerning the value of investigators in the defense of serious felony cases.

 

          9.  Request from 9th JDC IDB for Capital Conflict Grant.  The staff briefed the Board on the approval of a grant request from the 9th JDC to defray a portion of the expenses associated with four capital cases being prosecuted in that district.

 

          10.  Briefing on State v. Moses.  At the direction of the Chair, the staff briefed the Board on a writ application pending before the Supreme Court.  The staff, after communications with the Court and members of the Executive Committee, was in the process of preparing a position paper on the case.  In response to questions posed by Mr. McLeod and Mr. Dalton, the staff explained that it was concerned only with the narrow issue of whether the retained counsel in this case could access Board funds to defray the expenses of necessary experts for the defense.  The staff noted that Mr. Picou had testified at the ex parte as a representative of the staff and answered specific questions posed by counsel for the 15th JDC IDB. 

 

          Mr. Dalton, Mr. McLeod, and Dr. Barron agreed that the staff should inform the Court, in the form of a letter to the Chief Justice, of the Board's position on this issue.  The Chair directed the staff to prepare the necessary memorandum and forward it to the Court.

 

          11.  Capital Program.  The staff informed the Board of the ongoing capital cases in Louisiana which it was monitoring.

 

          The staff related to the Board the concerns of several attorneys that a reserve panel of attorneys should be compiled who would be eligible to take capital cases but who, not being full-time public defenders, would not be forced to take every capital assignment in a particular district.  Mr. Dalton moved that the staff should report to the Board with a specific mechanism for affecting such a panel to be presented at the next regularly scheduled Board meeting.  Ms. Spears seconded the motion, which passed without objection.

 

          The staff reported that it was investigating a way to provide capital consultation services throughout the state, including a toll-free phone line and making counsel available to answer questions and assist on legal issues.  On the recommendation of Mr. Walker and Dr. Barron, the Board directed the staff to continue this line of inquiry and report back to the Board at its next regularly scheduled meeting.

 

          12.  Other Business.  The Chair next directed the staff to brief the Board on any other matters pending on the agenda.

 

          NLADA Conference:  Ms. Faria informed the Board that she had accepted requests to speak on three panels during the 73rd Annual Conference of the National Legal Aid and Defender Association. 

 

          LPDA:  The staff reported that it will be present for and deliver a lecture at the upcoming seminar sponsored by the Louisiana Public Defenders Association on November 10th and 11th.

 

          Judicial College Panel Discussion:  Ms. Faria informed the Board that she delivered a lecture at the Judicial College on October 1, 1995.

 

          Private Political Activity:  The staff requested the Board to turn its attention to some guidelines attending political activity of its staff.  At the request of the Chair, Mr. Gagliano was recognized.  Mr. Gagliano explained that the Board's staff did not fall within the directives of the employment regulations published for the judiciary.  Ms. Faria noted that she found the regulations too restrictive and that the Board should consider adopting a more expansive approach to political activity.  Dr. Barron noted that the staff should avoid political activity which would be highly publicized until the Board was able to study the issue.  Mr. Picou noted that attorneys working directly for the Supreme Court are traditionally expected to keep within the strictures of the Judicial Code.  Mr. McLeod, supported by Mr. Dalton, proffered that the staff should abide by the Judicial Code until the Board is able to articulate a firm position.  At the direction of the Chair, discussion on this issue was tabled until the next regularly scheduled meeting of the Board.

 

          Proxy Changes:  Revisiting this issue, Mr. McLeod noted that he was raising the issue not out of any perceived problem then existing but merely to address a potential problem.  Mr. Dalton moved that the staff draft proposed changes to the bylaws which would prohibit a general proxy executed in favor of a staff member.  Mr. Walker seconded the motion, which passed without opposition.

 

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