LOUISIANA INDIGENT DEFENDER BOARD

REGULAR BOARD MEETING

PHELPS DUNBAR

BATON ROUGE, LOUISIANA

MARCH 15, 1996

MINUTES

BOARD MEMBERS PRESENT: Thomas Casey, Chair; Dr. Ben Barron; Dorothy Briggs; Samuel Dalton; Timothy Daniels; Robert McLeod; Walter M. Sanchez, Vice-Chair (by proxy); and Henry Walker.

GUEST: Robert Spangenberg.

STAFF PRESENT: Jean M. Faria, Chief Executive Officer.

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 the proxy executed by Walter Sanchez and given in favor of Henry Walker and noted that a quorum was present.

3. Welcoming Remarks of the Chair. The Chair welcomed the members of the Board and the staff. Mr. Spangenberg was welcomed and introduced by the Chair as guest speaker and author of the preliminary paper on indigency. The Chair briefly reviewed the agenda for the meeting, explaining its purpose and scope. The Chair then entertained a motion by Mr. Dalton to approve the minutes of the Board's January 26, 1996 meeting. Dr. Barron seconded the motion, which passed without opposition.

4. Review of Budget. At the direction of the Chair, the staff reviewed the LIDB fiscal year 1995-1996 Budget Report through February 29, 1996.

5. Program Review:

A. Capital Program: At the direction of the Chair, the staff presented a review of the Capital Program. The Board has funded in whole or in part 60 cases directly, 37 through block grants and 11 cases through capital conflicts panels. The staff is aware of 5 to 6 cases which, in all likelihood, the Board will be asked to fund.

The staff presented the Capital Conflicts Panel proposed by East Baton Rouge Parish district indigent defender board. After discussing the project several times with the indigent defender board and the executive director, the most feasible plan was to fund three attorneys, at this time, at annual salaries of $35,000.00. The twelve month period would begin April 1, 1996 and run through March 31, 1997. Based on the number of conflict cases tried in 1995, the Board was told that a fourth attorney may be needed within the year. Mr. Dalton moved that the Board approve funding for three attorneys. The motion was seconded by Dr. Barron and passed without opposition.

At the direction of the chair, the Capital Consultation Project was explained and letters of support from Board members were presented. Mr. McLeod expressed his concern that the Project as defined may be too broad and that there were insufficient checks and controls to monitor potential abuses. The Chair suggested that the Board adopt the Project and develop the monitoring process. It was suggested that the Project require attorneys to execute contracts which included the requirement that attorneys keep contemporaneous time sheets. Mr. McLeod agreed to work with the staff to develop a monitoring process which would provide sufficient protection of public funds.

Mr. McLeod suggested that the Project be approved with the provision that there be a $1,000.00 maximum associated with each case. A consultant may exceed the cap only upon prior approval of the chief executive officer or her designee. With these modifications and amendments, Mr. Walker's motion to institute the Project retroactive to January 1, 1996 was seconded by Dr. Barron and passed without objection.

B. Expert Witness. The Board is currently funding 44 cases. Eleven court orders for Expert Witness/Testing Fund monies were received in the past two months.

C. Technical Assistance. The complex litigation systems are now in place in the Orleans Indigent Defender Program, the Orleans Capital Conflict Panel, the 24th Judicial District Indigent Defender Program. The system in the 1st Judicial District is scheduled to be installed on March 18, 1996. Pursuant to the Board's request that these systems be utilized as pilot programs, written reviews of the system have been requested for the first three pilot programs which are due near the first of April. The First Judicial District will be asked to provide its written review in May.

D. District Assistance Fund. The second disbursement went out as planned. The third disbursement is planned for the first week in April. The last disbursement will go out in the first week of June.

The staff reported that the 33rd Judicial District Indigent Defender Board, Allen Parish, and the 37th Judicial District Indigent Defender Board, Caldwell Parish, had opted to participate in the District Assistance Fund.

E. Non-Capital Appellate Program. The Board had previously voted by mail to contract with Mr. James Looney to serve as executive director. The contracts are being prepared and the appropriate paper work filed to establish the Louisiana Appellate Project, a not-for-profit organization.

6. The Preliminary Spangenberg Report. At the request of the Chair, Mr. Spangenberg discussed policy issues which must be resolved prior to drafting a final report and legislative package. Mr. Spangenberg discussed the general issues the Board needed to resolve. Should the LIDB create legislation to be introduced, suggest a Supreme Court rule or create LIDB standards and guidelines? Having decided that issue, what should be the client's responsibility? Assuming some user fee is imposed, should the client discharge the financial obligation before or after sentencing and who should collect such a fee? Additionally, what recommendations should the Board make regarding partial indigency?

A. Partial Indigence. Mr. Spangenberg started his presentation with the issue of partial indigency. Specifically, should a retained lawyer, whose client is subsequently declared indigent by the trial court, be allowed to access public funds for expert witnesses and/or for attorney's fees.

In analyzing this issue, Mr. Spangenberg opined that there are competing issues of the Sixth Amendment right to the effective assistance of counsel as defined in Ake v. Oklahoma: the defendant's wishes in the case and ethical considerations. The defendant's wishes must be considered as he has developed an attorney-client relationship with counsel which cannot be severed. Normally an indigent defendant does not have the right to choose counsel. Ethical considerations concerning the contractual relationship between the defendant and retained counsel and interference by the public defender and/or court also exist.

1. Expert Witness Fees. Mr. Spangenberg's view on the question of experts is that there is no choice but to fund expert witnesses and testing when retained counsel's client has subsequently been declared indigent, upon proper motion and showing to the court. He cited the jurisprudence provided in his preliminary report which supported his view. Further, allowing retained counsel to access the funds lightens the workload of the public defenders. Had the client been declared indigent and the public defender appointed for the purpose of accessing public funds for experts, the public defender increases his or her workload and incurs additional public expense by taking over the case, thereby providing both legal services and court appointed experts at public expense.

A hypothetical was then posed by Mr. Spangenberg. If a defendant paid retained counsel $150,000 for representation in a capital case and one year later the trial court determined that the defendant was indigent for the purpose of appointing expert witnesses, could the trial court, under its inherent authority, have an ex parte hearing for the purpose of examining the terms of the contract and the services rendered by counsel? In order to determine whether an expert is constitutionally necessary, trial counsel necessarily will have to reveal his strategy. At the hearing, is the trial court empowered to determine whether there are sufficient funds available from the original $150,000 and to order retained counsel to pay for the experts? Could the court review the contract and determine that the public fisc is responsible for the costs associated with experts? Other than this rare hypothetical, the issue is whether the Sixth Amendment's guarantee to effective assistance of counsel requires an indigent to receive the services of a court ordered expert at public expense.

Mr. McLeod voiced his concern that some public defenders would not be happy with this policy decision, however, given the current state of federal and state law, compensation for court ordered experts for indigent defendants would have to be approved. Essentially, the lawyer is quasi pro bono in this situation, asking only for payment of the experts.

Mr. Dalton felt that the hypothetical represents the rare case. Rather, the more common contract for services would be that which set the $150,000 to take the case to the United States Supreme Court and except the costs associated with experts and investigation. Mr. Spangenberg's hypothetical was the exception and not the rule.

Mr. McLeod agreed but felt that the LIDB could not ignore the fact pattern of the hypothetical as it accurately reflects the pending case of State v. Bourque from the 16th judicial district. The problem is that the hypothetical appears to be planned indigency, which is offensive to the Board as protectors of the public fisc, and unacceptable.

Mr. Spangenberg felt that the appropriate way to deal with these competing policy concerns is to create a statute allowing for partial indigency and which includes commentary detailing the conflicting policy concerns which the Board considered in reaching its decision. Mr. Spangenberg commented that no Board could make a recommendation or rule to cover every problem. It is was agreed that it is more important to cover the most frequent problems and explain the Board's reasoning in so doing.

2. Attorneys Fees. The second aspect of partial indigence is whether retained counsel, whose client is subsequently declared indigent, should be entitled to attorney's fees in a capital case. An extensive debate ensued on the issue of whether a court could sever an attorney-client relationship based on contract, on motion of the public defender. Mr. Spangenberg counseled against such a position as the interference with the contractual relationship between the attorney and the client raises serious problems. Can the court be permitted ex parte to look behind the contract and gather facts to determine whether the contract between counsel and the defendant or a third party has been met?

Mr. Spangenberg asked whether a judge should be required to inform all retained counsel entering any criminal case, that attorney's fees will not be available should the client subsequently be declared indigent during the case. Mr. Dalton felt that such a policy would lead to zealous advocates forced off cases based on the trial judge's decision of whether to compensate counsel. In a capital case, the court should first determine whether counsel is certified by the LIDB. If counsel is certified and the client is declared indigent then the court should appoint previously retained counsel. At the time of the appointment the court should examine the fee, contemporaneous time sheets, and out of pocket expenses and retroactively impose the LIDB rate of compensation against all time previously expended in the case. Should there be any residuum of the fee, the court would then order newly appointed counsel to bill against the balance of the fee at the LIDB capital rate.

Mr. Walker noted that the threshold problem is whether we should, for policy reasons, entertain the idea that retained counsel should receive compensation from public funds once the client is declared indigent. Mr. McLeod expressed his concern that such a policy would encourage marginally competent lawyers to undercharge competent attorneys and then access the public fisc to pay their attorneys' fees. Mr. Walker shared this concern. The staff shared the views of several district judges who were opposed to payment of any attorneys' fees in retained cases.

Mr. Dalton argued that many criminal defense lawyers enter cases based on family members' requests. Frequently the lawyer is promised funds which are only paid in part. The LIDB should have a policy which encourages struggling attorneys to stay on cases and allows them to receive compensation. In capital cases, Mr. Dalton felt that attorneys who are approached by the defendant's family with minimal fees, should direct the family to hire investigators and experts. The attorney should direct the family to use the public defenders office for provision of counsel. Dr. Barron directed the Board's attention to its obligation to select the best option. Mr. Spangenberg suggested that these policy concerns be stated in the commentary to the legislation.

After extensive discussion, and on motion of Mr. McLeod, seconded by Mr. Walker, the Board voted, without opposition, to recommend against retained counsel receiving attorneys' fees and to allow compensation for second counsel in capital cases after the client is declared indigent. Mr. Walker moved to recommend that the legislation reflect the policy that constitutionally necessary experts be provided to retained counsel. Mr. Dalton seconded the motion which passed without opposition.

B. Recoupment and Administrative Fees. The next topic which Mr. Spangenberg raised was recoupment. The question a state should ask is, "recoupment at what cost?" To meet constitutional muster, at the conclusion of the trial the trial court must hold a hearing to determine the defendant's present ability to pay. Further, should the state designate probation and parole as the agency to collect recoupment, the court cannot revoke the defendant's probation or parole based on the defendant's failure to pay recoupment costs if he is indigent. Recoupment involves the use of limited trial court resources. The evidence shows that it does not work and expends valuable trial court resources. More often than not, the evidence has shown that it costs more to administer the system to collect recoupment than is actually recovered.

According to Mr. Spangenberg, a cost recovery method being used by many states is to impose a user fee, generally known as an up front administrative fee. The fee is also known as a "pay as you go" fee. With proper personnel, the up front administrative fee is easily collected with little difficulty. The evidence shows that up front fees create a better relationship between the client and the attorney. In the event that the administrative fee is not paid up front the client is ordered to appear for a recoupment hearing. The experience of those states with up front administrative fees shows that more defendants are able to pay the fee than are not.

Mr. Dalton raised the question of what would happen to a defendant's administrative fee in the event he or she was acquitted at trial. Mr. Spangenberg answered that the Board could recommend reimbursement of the fee in the event the defendant was acquitted at trial.

In all instances, the court would have the ability to waive or reduce the fee depending on the circumstances of the defendant. In conjunction with the uniform indigency standards proposed by Mr. Spangenberg and included in the preliminary report, it is more likely than not that any change in the rate of indigency will be negligible, leaving the administrative fee as a reasonably simple and effective means of containing costs.

The Board discussed the amount of any administrative fee. After considerable debate the Board determined that the administrative fee should be no less than $25.00. On motion of Mr. McLeod, seconded by Mr. Walker, the motion to impose an administrative fee of no less than $25.00 passed without opposition.

The next question which needs to be answered is how and by whom shall indigency be determined. The proposed statute was discussed. It was suggested that either through court rule, Board guidelines or the statutory scheme in Louisiana, there should be a category of defendants created, "indigent but able to contribute." The Board could create a sliding fee scale or set a fixed fee for misdemeanors and felonies.

Mr. McLeod suggested that the Board survey the trial judges about the screening process and determine from them their recommendation as to who should screen for indigency. He also expressed concern that should their response be to create another entity to perform screening that there would be concerns that the Board was developing a bureaucracy.

Mr. Spangenberg then raised the question of where will the collected funds go. Mr. Dalton suggested that they be collected and paid to the LIDB. Mr. McLeod felt there would be little local support for such a provision and that the public defenders would want the fees to remain in the district. Mr. Spangenberg suggested that all administrative fees be deposited in a newly created LIDB Trust Fund which could be created to administer the cost-containment funds. In no event should the money be returnable to the general fund. National experience with such provisions shows a lack of incentive to collect the funds and therefore little effect on cost containment.

Mr. Spangenberg promised to return to Louisiana and produce a legislative package that could be used to assist in the Board's transition to the executive branch.

7. Adjournment. Due to the length of the discussion on the preliminary Spangenberg Report the remaining topics on the agenda were not covered and a motion was made, seconded and adopted to adjourn without addressing the remaining agenda items.