Gideon Alert: MA Governor proposes disbanding statewide defender commission

BY David Carroll on Wednesday, January 26, 2011 at 10:50 AM

On January 24, 2011, Massachusetts governor Deval Patrick proposed sweeping changes to the delivery of indigent defense services in the state.  Changes include abolishing the existing independent commission that oversees the Committee for Public Counsel Services (CPCS) and creating a new public defender department under the executive branch.  The Governor would also end CPCS’ primary reliance on the private bar and instead provide most services through full-time staffed public defender offices.  Under the Governor’s plan, the new department would also be responsible for conducting eligibility screening and collecting fees from indigent clients for services.

Massachusetts is one of the few states in the nation that have been able to implement the ABA Ten Principles of a Public Defense Delivery System. Disbanding the independent oversight committee entirely, or eliminating the diversity of appointing authorities, would lead to undue political interference in the delivery of indigent defense services.  Were this to occur, it would significantly impair the ability of Massachusetts to meet all of the other ABA Principles related to oversight, training, workload control and attorney performance, among others.  National experience dictates that public defense delivery programs that fail to guarantee independence compromise the integrity of the attorney-client relationship and work to the detriment of public defense clients by providing them with counsel whose professional judgment may be influenced by concerns that are, at best, irrelevant to clients' adequate representation.

A review of CPCS and its method of providing services shows what is at risk.  A 2003 report by the U.S. Department of Justice, National Institute of Justice on the implementation and impact of national standards highlights why CPCS is considered a model for other states.  CPCS’ independent board has statutory oversight of the delivery of services in each of Massachusetts’ counties and is required to monitor and enforce standards.  Private attorneys, compensated at prevailing hourly rates, provide the majority of defender services.

At the local level, attorneys who accept cases must first be certified by CPCS.  To accept District Court appointments (misdemeanors and concurrent felonies), attorneys must apply, be deemed qualified, and attend a five-day state-administered continuing legal education seminar offered several times throughout the year.  Attorneys are appointed by region, and no attorney may receive appointments in more than two regional programs (unless she is certified as bilingual).  Attorneys seeking assignment to felony cases must be individually approved by the Chief Counsel of CPCS.  That decision is informed by the recommendation of a Certified Advisory Board, composed of eminent private attorneys from each geographical region. To be certified for appointment to these more serious cases, attorneys must have tried at least six criminal jury trials within the last five years or have other comparable experience.  Proof of qualification, including names of cases, indictment numbers and charges, names of judges and prosecutors, dates, and a description of the services provided must be included in the application. Recommendations from three criminal defense practitioners familiar with the applicant’s work are also required.  Certification is only valid for a term of four to five years, after which all attorneys must be revaluated.

All newly certified attorneys in Massachusetts must participate in a mandatory program of mentoring and supervision overseen by regional advocacy centers.  For attorneys seeking appointment to children and family law matters, for example, counsel must meet with their mentor prior to any new assignments and bring writing samples to help the mentor develop a skills profile.  The mentor and mentee are required to meet at least four times per year.  The mentor is instructed to follow CPCS’ performance guidelines in assessing the attorney’s ability.  Participation in the program is mandatory for an attorney’s first eighteen months and may continue longer at the discretion of the mentor.

By being certified, an attorney agrees to abide by the rigorous performance guidelines that set out attorney responsibilities at every stage of the case, for each specific type of case the attorney is qualified to handle.  Assigned counsel attorneys are also bound by numerical caseload limits: an attorney may handle no more than 125 Superior Court criminal cases per year, 250 District Court criminal cases, 165 delinquency cases, 125 children and family law cases, or 125 mental health cases. (Edit: the original posting of this article included attorney caseload figures that predated 2006. These figures have now been updated.) An attorney may not bill more than 10 hours in a day (unless this limit is specifically waived by CPCS) nor more than 1,800 hours annually.

CPCS assesses “quality” through a formal evaluation program based on the written performance guidelines and overseen on a regional level by compliance officers.  These supervisors are given training in how to evaluate staff, and their ability to assess performance fairly is a subject of their own performance review by CPCS.

Were the Governor to eliminate the independence of Massachusetts’ public defense system, all of these quality safeguards would be jeopardized. The very first of the ABA Ten Principles calls for the establishment of an independent right to counsel oversight board, whose members are appointed by diverse authorities, so that no single official or political party has unchecked power over the indigent defense function.   To help jurisdictions in the establishment of independent public defender boards or commissions, NLADA has promulgated guidelines.  NLADA’s Guideline for Legal Defense Services (Guideline 2.10) states: “A special Defender Commission should be established for every defender system, whether public or private.  The Commission should consist of from nine to thirteen members.”  So long as the independence of the oversight board is maintained in any proposed changes, national standards are silent on the appropriateness of housing right to counsel services in either the executive or judicial branch of government.

The governor’s plan to have public defenders screen clients for eligibility and collect fees for partial indigency goes against national standards.  The commentary to ABA Defense Services Standard 5-7.2 states that the public defense agency should not be responsible for collecting client fees, to avoid ethical interference with the attorney-client relationship.  For example, a public defender may be placed in an antagonistic relationship toward a potential client, when the decision is made that the defendant is not eligible and the client wants to fight that decision.  National experience has been that placing the screening function with public defenders does not result in stricter screening, but just the opposite.  To avoid such issues, national standards call for the creation of an independent pre-trial service agency to conduct eligibility screening.  ABA Criminal Justice Standard 10-1.10 states that “[e]very jurisdiction should establish a pretrial services agency.”  Such agencies can increase court efficiencies and lower overall pre-trial detention costs through preparing and presenting risk assessments to the court and/or determining a defendant’s eligibility for diversion, treatment or other alternative adjudication programs.

The push for these reforms began with a call from district attorneys in the fall of 2010.  On October 13, 2010, nine of the eleven elected District Attorneys in the state held a press conference at the state legislature to alert policymakers to what they called an imbalance in criminal justice funding.  Arguing that the Committee for Public Counsel Services (CPCS) receives $168 million per year while prosecutors receive only $92 million in state funding, the Massachusetts District Attorneys Association (MDAA) urged in a letter that reallocating CPCS’ budget to the DA’s offices would properly “reflect the public’s priorities and values… without asking the taxpayers for a single new dollar.”  The district attorneys fail to recognize the simple acknowledgement that states “quite properly spend vast sums of money” to establish  a “machinery” to prosecute offenders -- one of the reasons Gideon determined that defense lawyers are “necessities” rather than “luxuries.”  This “machinery” – including federal, state and local law enforcement (FBI, state police, sheriffs, local police), federal and state crime labs, state-retained experts, etc.  – are all resources that the district attorneys did not add into their side of the ledger sheet.  Without analogous defender resources, the defense is unable to play its appropriate roles of testing the accuracy of the prosecution evidence, exposing unreliable evidence, and serving as a check against prosecutorial or police overreaching.

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