Indigent Defense Assistance Board
Minutes
of the Board Meeting
Members Present: Jerri
G. Smitko, Chair; Alfred Boustany;
Ex Officio Members Present:
Staff Present: Edward R. Greenlee and Marsha Austtun Oliver.
Guests Present: Barry Gerharz, Michelle Ghetti,
Call to Order and Opening Remarks. The meeting was called to order at
Review and Adoption of
Minutes from the December 14, 2005 Meeting. Mr. Sanchez moved to dispense with the
reading of the minutes of the meeting held on
Study Panel for Expert Witness Funding Administrative Rules. Mr. Greenlee advised
the Board that the administrative rules for payment of expert witnesses and
specialized testing had been published in the February issue of the Louisiana
Register, the first step in the promulgation process. Mr. Greenlee also advised that if there were
no requests for public hearings and no objections to the rule, it would be
finalized in May, 2006. At this time Mr.
Greenlee informed the Board that the rules currently being promulgated only
addressed expert funding in capital cases and that there was a need to develop
rules for expert funding in other cases.
He proposed that a panel consisting of the staff attorney, Marsha
Oliver, the director of the Capital Appeals Project, Jelpi P. Picou, Jr., the
directors of all of the LIDAB conflict offices, Richard Goorley, Kerry Cuccia,
Neal Walker and David Price, and himself study the issue and prepare a draft of
such rules for presentation to the Board.
Mr. Boustany moved that the panel be formed of the members as suggested
by Mr. Greenlee. Ms. Hoeffel seconded
the motion which passed without opposition.
Emergency Funding for Districts Affected by Katrina. Mr. Greenlee informed
the Board that approximately $500,000 was available to provide emergency
funding to the indigent defender boards in hurricane affected areas. Mr. Greenlee explained that $500,000 of the
funds had not been previously allocated by the Board within its budget. Mr. Greenlee also explained to that the Board
had previously set aside $100,000 for a study of the indigent defense system in
Louisiana, but due to these funds being frozen under professional services by executive
order of the Governor, it was too late in the fiscal year to go through a bid
process and obtain contract approval for the study should the funds be exempted
from the freeze and suggested to the Board that these funds be rededicated to
district assistance. Mr. Greenlee said
he had spoken with the Chiefs of all the indigent defender boards in the
hurricane affected areas and at this time would propose that $65,000 of the
funds be distributed to St. Bernard Parish and the remainder be distributed to
Orleans Parishes as these 2 parishes were in the most financial need. Mr. Sanchez advised the Board that Mr.
Greenbaum, Chief Indigent Defender for the Orleans Parish Indigent Defender
Program, had recently reduced the caseload of his attorneys to meet LIDAB
standards to receive a grant from the Louisiana State Bar Association. Mr. Sanchez suggested that LIDAB also require
that the emergency funds to be distributed subject to the Boards compliance with
LIDAB caseload standards. Mr. North inquired
as to what the Board usually did with unallocated funds. Mr. Greenlee said that unallocated funds went
to the District Assistance Fund. Mr.
Greenlee also explained that historically the Board had not withheld money from
district boards that did not comply with its caseload standards as Board
members had disagreed on the issue of whether the Board statutorily had the
authority to do so. Ms. Smitko pointed
out that LIDAB currently does not have rules in place for district board
compliance with caseload standards and that given the emergency situation in
Orleans Parish it would not be wise to withhold these funds pending
promulgation of such rules. Mr. Sanchez agreed
that the Orleans Parish situation was dire and moved that the emergency
district assistance funds be distributed as suggested by Mr. Greenlee. Mr. Goff seconded the motion. Mr. North voted in opposition, noting that he
did not oppose allocating the emergency funding, but opposed distribution of
the funds without requiring adherence to the LIDAB caseload standards. The motion passed.
District Assistance Fund Distribution. Mr. Greenlee proposed that
$1 million that the Board had previously held back from the primary District
Assistance Fund distribution be distributed based on a change in the formula
that would assist the district boards that were most affected by the lack of
tickets issued after Hurricanes Katrina and Rita. He presented the Board with 2 different
proposals for the distribution. One
would distribute the remaining funds to the boards with 50% or less of annual operating
funds in reserve, the other would distribute the funds to boards with 25% or
less of annual operating funds in reserve.
The Board discussed the pros and cons of each distribution formula. Mr. Greenlee pointed out that the average
amount of reserve funds for the boards was 30% of annual operating funds. Mr. Gamble asked if caseloads were taken into
consideration in this formula and Mr. Greenlee responded affirmatively. Mr. Gamble also expressed concern that money
may go to boards that were not in an emergency situation. Ms. Hoeffel asked for an explanation of the
District Assistance Fund formula. Mr.
Greenlee explained that it was developed by Tony Gagliano of the Louisiana
Supreme Court in 1994 and is based on caseload, number of jury trials and the
amount of reserve funds for each district board. Members expressed concern that some of the
hurricane affected districts may not receive funds under the 50% reserve fund
distribution formula. Mr. Goff suggested
that the Board distribute the funds based on 30% reserve funds because that
formula would include all district boards that had reserve funds below the
average for all boards. Mr. Goff then
moved that the distribution of the remaining $1 million be made to all boards
having 30% or less of reserve funds. Mr.
Sanchez seconded the motion which passed without opposition
Executive Session –
Attorney General’s Potential Litigation.
Ms.
Hoeffel moved that the Board proceed in an Executive Session for the purposes
of discussing the following potential litigation with the Louisiana Attorney
General. Mr. North seconded the motion
which passed without opposition. Burton Guidry and Susan Severance of the
Attorney General’s office addressed the Board within the executive
session in regard to the Attorney General’s demand for discovery.
Resumption of Regular Meeting for Discussion of the Attorney
General’s Potential Litigation. Upon
resumption of the regular meeting Mr. Boustany moved that the LIDAB comply with
the discovery demand of the Louisiana Attorney General with the exception of
matters containing confidential and privileged client information and subject
to the financial resources and ability of the staff to produce such documents
as its main office has still not re-opened following severe damage from
Hurricane Katrina. Mr. Sanchez seconded
the motion. Mr. North opposed the
motion. The motion passed.
Task Force on Legal Representation in Child Protection Cases
– Fee Review Panel Recommendation. Mr.
Greenlee requested the Board make its recommendation for a member of the Fee
Review Panel of the Task Force on Legal Representation in Child Protection
Cases. Mr. North moved that Luceia
LeDoux be recommended by the Board. Ms.
McGough seconded the motion which passed without opposition.
Capital
Post-Conviction Project of Louisiana Director Position. Mr.
Greenlee suggested to the Board that due to substantial costs of advertising in
newspapers statewide and the previous lack of response to those ads, that
newspaper advertising for the position of the director of the Capital
Post-Conviction Project of Louisiana (CPCPL) be omitted and that advertising be
done via disbursement of information to all 41 judicial district indigent
defender boards, on websites of the LIDAB, LAPDA, LACDL, and national websites
of other defender organization. Mr.
Greenlee also requested that the Board set a deadline for submission of
applications. Gary Clements, interim
director of CPCPL, briefly addressed the Board regarding his intent to apply
for the position of director. Mr.
Sanchez moved that the Board authorize Mr. Greenlee to contract with CPCPL with
Mr. Clements as the interim director and the staff advertise as outlined by Mr.
Greenlee for a qualified individual to apply for the director position and that
a deadline of
Annual Reports from
the Local Boards. Mr. Greenlee informed the Board that all district
indigent defender boards had submitted annual reports as required by the new
statute with the exception of the 27th Judicial District IDB, 34th
Judicial District IDB and Orleans Indigent Defender Program. The 34th Judicial District IDB is located in
St. Bernard Parish, whose records, along with the
Task Force on Indigent
Defense Services. Mr. Gamble had requested the Board discuss the
status of the Task Force on Indigent Defense Services. Mr. Gamble expressed
frustration with the fact that indigent defense in Louisiana is still in
disarray, the Task Force has not met since the last legislative session and now
the Attorney General’s Office was attempting to assist with indigent defense
reform. Other board members expressed
concern on the process. Mr. Gamble
stated that it was incumbent upon the LIDAB to push for the Task Force to
complete its work, aid with the advancement of indigent defense and not just be
a conduit for funding. Ms. Hoeffel
suggested a subcommittee be formed to study the mandate of the LIDAB. The Board briefly discussed the issue. Ms. Smitko then assigned Mr. Gamble the task
of reporting on the status of the Task Force and on suggestions of what action
can be taken by the Board to enhance indigent defense in
Executive Director’s
Report. Mr. Greenlee advised the Board that the LIDAB had
finally received the FEMA grant funds in the amount of $54,000 from the
Louisiana Commission on Law Enforcement for distribution to indigent defender
boards in hurricane affected areas. Mr.
Greenlee also announced that the Louisiana Appellate Project, the first program
initiated by the LIDB, predecessor to the LIDAB, was celebrating its 10th
anniversary. Mr. Greenlee noted that the
Louisiana Appellate Project has been very successful in providing assistance to
the local indigent defender boards by handling all non-capital and juvenile
appeals for indigents in
Public Comments.
Jelpi Picou, Jr., director of the Capital Appeals
Project addressed the Board regarding the crisis in the Orleans Parish Indigent
Defender Program (OIDP). He stated that
the world was watching the LIDAB and its response to the indigent defense
crisis. He went on to say that the LIDAB
should take steps to make sure that the OIDP is financially sound and
professionally managed and that the LIDAB has the authority and the obligation
to do more than just provide funding.
Frank Neuner, president of the Louisiana State Bar
Association, addressed the Board stating the he echoed the comments of Mr.
Picou. Mr. Neuner said that the LSBA had
contributed $105,000 to OIDP in emergency funding, its use conditioned upon
OIDP adhering to LIDAB caseload standards.
Mr. Neuner said that the LSBA was also providing an additional $35,000
to fund an NLADA study of indigent defense in Orleans Parish.
Michelle Ghetti addressed the Board stating the
LIDAB did have the authority to withhold funds from indigent defender boards
that fail to comply with LIDAB caseload standards, but that in the past the
Board has chosen not to take such action.
Ms. Ghetti advised the Board to not wait for action from the Task Force
but to take action itself. Ms. Ghetti
suggested that the Board meet more often to address indigent defense reform
issues.
Barry Gerharz of Safe Streets questioned the Board’s
requirement of reporting caseload information, but not requiring that the
indigent defender boards meet caseload standards. He spoke of the extreme crisis in Orleans
Parish and said he was aware of indigent defendants that had been incarcerated
and not seen an attorney in six months and he requested the Board take action
to help alleviate the situation.
Neal Walker spoke in support of OIDP compliance with
LIDAB caseload standards. He reiterated
the comments of others regarding the crisis in Orleans Parish where many
indigents have gone without counsel for months.
Burton Guidry, assistant attorney general, addressed
the Board regarding Attorney General Charles Foti attempts to aid indigent
defense in
Additional Discussion and Action on Emergency Funding for
Districts Affected by Katrina. After Mr. Neuner spoke, Mr. Sanchez
moved that the Board deviate from the agenda to revisit the emergency funding
of Orleans Parish Indigent Defender Program.
Ms. Hoeffel seconded the motion which passed without opposition. Mr. Sanchez stated that after hearing the
comments of Mr. Picou and Mr. Neuner, he felt that the LIDAB should also
require that the OIDP adhere to the LIDAB caseload standards as a condition of
its use of the emergency funding provided by the LIDAB. Board members again discussed the
advisability of such a requirement when the Board had no formal rules to
address the failure of the OIDP to follow caseload standards. Mr. Sanchez moved that the Board require that
the OIDP adhere to the LIDAB caseload standards for the use of the emergency
funding. Ms. Hoeffel seconded the
motion. More discussion ensued and Mr.
Boustany moved to amend the motion by requiring all indigent defender boards
receiving emergency funding from the LIDAB be required to adhere to LIDAB
caseload standards. Mr. Sanchez accepted
the amendment, which was seconded by Mr. North.
The motion, as amended, passed without opposition.
Adjournment. There being no additional business brought to
the attention of the Board, Mr. Sanchez moved that the meeting be adjourned. Mr. North seconded the motion which passed
without objection.