COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING BEFORE THE COMMITTEE ON LAW AND GOVERNMENT - - - Room 400, City Hall Philadelphia, Pennsylvania Friday, June 5, 1998 10:10 a.m. - - - RESOLUTION 980214 - A resolution authorizing the Committee on Law and Government to investigate and conduct hearings examining the inadequacy of the system that funds the appointed legal representation of indigent defendants and dependent children, as well as a system of funding recommended by the Criminal Justice Section of the Philadelphia Bar Association designed o remedy said inadequacies, and empowering the Committee in furtherance of the investigation to issue such subpoenas as may be necessary to compel the attendance of witnesses and production of documents to the full extent authorized under Section 2-401 of the Home Rule Charter. PRESENT: COUNCILMAN DAVID COHEN, Chair COUNCILMAN MICHAEL A. NUTTER COUNCILMAN ANGEL L. ORTIZ COUNCILMAN FRANK DICICCO COUNCILMAN FRANK RIZZO - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 2 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 I N D E X Criminal Justice Section, Philadelphia Bar Assoc. Daniel Alva, Esquire, Chair . . . . . . . . . 5 Clifford Haines, Esquire . . . . . . . . . . 9 George Newman, Esquire. . . . . . . . . . . . 15 First Judicial District of Philadelphia Honorable Alex Bonavitacola, President Judge 55 Joseph DiPrimio, Esquire, Court Administrator 77 Ellen Greenlee, Esq., Defender Association 101 Thomas Purl, Esquire, Private Legal Counsel 105 James Lafferty, Esq., Community Legal Svcs. 117 William Gonzalez, Esq., Police Barrio Project 126 Jeremy Gonzalez Ibrahim, Esquire . . . . . . 129 Member, Council of Spanish Speaking Organizations Nina Padilla Esquire, Private Legal Counsel 134 Katherine Miller, Esquire. . . . . . . . . . 137 Chair, Dependency Committee, Philadelphia Bar Association Family Law Section 17 Betsy Sternthal, Esquire . . . . . . . . . . 154 Court-Appointed Counsel, Dependency Court Stan Krakower, Esquire, Private Legal Counsel 157 Joyce Webb Eubanks, Esquire. . . . . . . . . 162 Vice President Women's Lawyers Division National Bar Association Also Present: Dean Kaplan, City of Philadelphia John Estes " " " (Did not provide testimony.) - - - 3 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 P R O C E E D I N G S
The Committee on Law and Government will now be in session to hear testimony on Resolution 980214. I'd like to ask the clerk of the committee, Robert Jaffe, to read the title of the resolution.
Resolution No. 980214, a resolution authorizing the Committee on Law and Government to investigate and conduct hearings examining the inadequacy of the system that funds the appointed legal representation of indigent defendants and dependent children, as well as a system of funding recommended by the Criminal Justice Section of the Philadelphia Bar Association designed o remedy said inadequacies, and empowering the Committee in furtherance of the investigation to issue such subpoenas as may be necessary to compel the attendance of witnesses and production of documents to the full extent authorized under Section 2-401 of the Home Rule Charter.
Thank you, Mr. Jaffe. We're hoping not to ever require the subpoena power referred to in the title of the 4 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 resolution. We're here today trying to deal with a situation that I think is a of fundamental importance to all of the people of Philadelphia, because unless you have an adequate, functioning system deemed to be fair by all the parties involved, the really important folks who are the participants in the court system, the indigent defendants or the persons needing or the children needing child advocacy, it will just never function properly and efficiently and represent the justice requirements of the people that appear before the court system. So for that reason, we're trying to work out a method that will seem fair to everyone and that will promote the benefits for all Philadelphians. Now, I'm going to ask first that the criminal justice section, a panel, which, as far as I know, will consist of Danny Alva, the chairman of the committee, George Newman and Cliff Haines who not only appears in that function -- but are you the last preceding chancellor of the bar, if I recollect correctly? -- to appear as a panel together. I'd like to suggest that the 5 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 three of them come to the table and proceed in the order they desire. Councilman Nutter, is there any statement you would like to make?
No, Councilman. As virtually the only nonlawyer in the room, I'd like to hear from the lawyers.
Okay, very good. That means we may get have direct questions from Councilman. He's not used to the questions as lawyers generally ask them.
Dear Councilmembers, as Chair of the Criminal Justice Section of the Philadelphia Bar Association and as a practicing attorney, I want to thank you and the City Council for allotting this time to us so that we can make known to you, our City fathers, the problems confronting the indigent in today's courts. It was just 35 years ago that Justice Hugo Black, speaking for a unanimous United States Supreme Court in Gideon vs. Wainright uttered, "In our adversary system of criminal justice, any 6 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. Lawyers in criminal cases are necessities, not luxuries." To these great words now add, "The critical need for counsel for society's youngsters in dependency court." While our City has taken great steps towards achieving the ideal set forth in Gideon -- indeed, our Voluntary Defender's Office is one of the finest in the nation -- we have nevertheless lagged behind in the overall quality of representation for our poor. In general, our local and State governments have been concerned with the cost, not the quality of the representation or the overall fairness of the trial or hearing. Until now, attorneys' fees are administered by and paid out of the Court of Common Pleas' overall operating budget, a budget that has been limited by decree to one of zero growth and has found itself strained to the financial limit in other critical areas as well. In addition, ever-increasing case loads 7 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 generated by a host of prosecuting agencies, with multiple budget, grant and forfeiture sources, have left the system gasping for breath and unable to make ends meet. It is the poor who are ultimately squeezed, and it is they who ultimately suffer. If there is one lesson we have learned in the last 35 years, it is that Justice Black's words must be amended to add the adjective "competent" before the word "counsel." And additionally, a phrase should be added onto the end; to wit, "competent counsel with adequate resources." It is to that end, competent counsel with adequate resources, that we come to you today. Unless counsel are fairly compensated, only the newest, less experienced attorneys will be attracted for this important task. Unless counsel have at their disposal adequate resources for investigation and mitigation, no amount of experience or effort will result in a fair trial or hearing. Therefore, we appear today from all walks of life, experience, and job titles to 8 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 request of you the dawn of a new day of justice for our City's poor. The creation of a separate line item budget with an initial allotment of $10 million, a figure quoted earlier as needed by President Judge Bonavitacola to be administered by an agency, to be later designated, separate and apart from the Philadelphia court's budget. I would like at this time to introduce to you the following individuals who have taken the time from their important work to address you this morning. First, Clifford Haines, immediate past chancellor of the Philadelphia Bar Association.
Before you begin, Mr. Haines, I just wanted to make an official announcement of the presence of a quorum. Councilman Rizzo is on my far right. I don't know whether that means anything or not, what I just said. President Street, I just introduced Councilman Rizzo as being on my far right, and I don't know whether it was merely a physical description or not. (Laughter.) 9 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
-- right over here, on the other side of Councilman Rizzo. Councilman Nutter was here up till a minute ago; he'll be back Council. On my left Councilman Ortiz. That may or may not be a fitting description. And myself, right in the center, Councilman David Cohen. But thank you. Maybe we need a little bit of levity, because everything else is going to be pretty serious today. But thank you very much for a fine statement, Mr. Alva. Mr. Haines, why don't you proceed.
Councilman Cohen, thank you for the invitation to be here today. And I'm so pleased that your committee and City Council has taken it upon itself to finally spotlight what I think is a terribly critical issue in the Philadelphia community, look at it carefully; and hopefully, as a result of that, come to an 10 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 accommodation and a solution to something that I think reflects on the entire community. I recognize that the President Judge of the Court of Common Pleas is here, and I recognize that his budget officer is here, and I know that representatives of the City are here, and you're going to hear from them a great deal from them a great deal about the economics of the situation. I suspect you're going to hear some specific information about court-appointed counsel and the inordinate expense of that. But I want to take a minute, if I can, with you. And perhaps these remarks are addressed as much to Councilman Ortiz and Councilman Rizzo as anyone because, Councilman Cohen, you were at one time, when I started out in the District Attorney's Office, a court-appointed lawyer. So I know you are familiar with what goes on and how important it is that this system be supported. And Councilman Nutter, you and I have talked about this issue in the past, communicated about this issue, and I know of your ongoing about it.
I've been a 11 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 court-appointed lawyer.
Councilman, I was not aware of that. You and I never locked horns; I'm sorry we never had opportunity to do that, but. . In any event, I think the fundamental issue that everyone needs to recognize in this room is that this issue is not about paying lawyers; and to the extent that people think it is, they make a terrible mistake, because it is about the quality of the justice system in Philadelphia. Lawyers, government officials, court officials, all of us, seek more than anything else from our constituents or clients and the public respect for the rule of law. And if the system is not available on an equal basis to everyone, then people will not respect the rule of law. If we are going to abide in this city, and I'm sure we are, to the Constitutional mandate that people in the courtroom who are there accused of a crime or people in a courtroom whose families are being torn asunder have a right to be represented just like the rich, just like the 12 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 successful, then we've got to provide the resources to compensate the lawyers -- not because they're entitled to money, but because they need to earn a living and they need to be paid and they need to have the funds to hire investigators, to hire psychologists, to hire psychiatrists to assist them in representing their clients. And that's what this issue is really all about. How do we communicate to the citizens out there that justice is fair, justice is equal and justice is accessible. The needs and the demands have grown inordinately; there is no question about that. And Judge Bonavitacola is going to tell you, I am sure, that there is a limit to how much the court system can absorb in terms of paying counsel fees. And the City of Philadelphia is going to tell you that there is a limit to how much they can pay for court-appointed counsel. But I suggest to you that it has come to bear that the time is now to correct this system. When we are in the business of paying lawyers who agree to represent children who have been removed from their home by the Department of 13 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Human Services $300 a year to represent that child, it is unconscionable and illogical to believe that that child is going to get the kind of representation that the average citizen would get in a civil proceeding or that a criminal defendant would get under our present court-appointed system. You need to look very carefully and very clearly at the numbers of people who need representation, you need to look very carefully and very clearly at the amount of money that's being spent. And whatever the mechanism is, whether, as Mr. Alva has suggested, you set up a separate line item and fund that line item and create an entity in an agency to pay court-appointed counsel, whether you give to Judge Bonavitacola more money so that his court system can pay for court-appointed counsel, whether you give to the City of Philadelphia the responsibility for taking over this system, I think is not the critical point. I think the critical point is that no 24 matter who ultimately has the responsibility, there is in each fiscal year for the City of 14 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Philadelphia sufficient and adequate funds so that every lawyer who sits over here, who agrees to go into a courtroom at less than he or she could otherwise make if they were privately hired, can do the job on the behalf of your constituents that they are capable of doing when they are adequately compensated and when they have sufficient funds to hire the people they need to represent their clients satisfactorily. Thank you for the opportunity to be here. Thank you again for doing this. I think it is so terribly important.
And I hope the net result is that Judge Bonavitacola is happy, that the City of Philadelphia is happy, that City Council is happy, and that the criminal justice system will no 18 longer need to stamp its feet to see that this issue be properly addressed. So thank you for the time to be here today.
Thank you. I'm going to ask that Mr. Newman speak, and then there will be questions, but I'd like all three members first to state their positions. 15 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
And speak right into the microphone. Just move it over, closer to you.
And also thanks to Councilman Nutter and Councilman Rizzo. I'd just like to applaud the remarks of my two predecessors; in particular, what our former chancellor, Cliff Haines, has said. This issue is one that is absolutely paramount for the citizens of Philadelphia. And it concerns not simply the lawyers; it concerns the people they represent, both 16 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 dependent children and the indigent accused. And I emphasize accused, because these are people often awaiting trial. And the issue is, Will they get a trial? And some are obviously innocent; some aren't, but they deserve a fair trial. The concern of the lawyers who are present, and I speak as a lawyer but not as a representative of the Bar, but as a lawyer. Our concern is in the funding to assure not that we receive what the market rate is, because the market rate for lawyers in Philadelphia, private lawyers, could range easily anywhere from a 100 to $500 per hour. The rates are very high. If you're doing white-collar criminal defense, the rates can be -- a lawyer can easily charge 350, $400 in hour in Philadelphia. And in Washington, up to 500 more per hour. The rates that are currently set are far below that, so it's not a question of making market rate; it's making enough so that lawyers do not get absolutely killed in representing the indigent accused or dependent children. It's so they can cover their overhead and perhaps have a 17 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 little bit of money left over after they receive their fees. Our particular concerns here are the source of the funding. We are not concerned with specifically who pays but we need to know that there is an assured source. We need to know that either the State or the City is going to step up to the plate and is going to pay what is necessary to assure that there's adequate representation for children and the criminally accused. We're concerned about the amount of money. We need to know that the amount of money is sufficient. And we're also concerned about the regularity of payment. We need to know that when a lawyer agrees to represent a citizen accused at a specific rate that at the end of the case, the lawyer will be paid, the lawyer will be paid what was agreed upon. Now, I've submitted to the committee a written -- my written testimony and also -- which I think is important because it summarizes the history of court-appointed payments since the early 1980s up to the present time. And I've also 18 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 submitted what is known as the "Massachusetts Court-Appointed Attorney System," with suggestions to modifications. And I'm not going to read that to you because all Members of Council, obviously, can study these and read these themselves, although I would be happy to answer questions. But just to summarize for you what's in them, when I first went into private practice in 1979, the range of pay ranged from to $25 per 11 hour. And I can assure the Council that even in 12 1979, getting $15 an hour and having to pay your 13 office overhead, your secretary, your phone bills, 14 your insurance, your bar fees, your disciplinary 15 fees --
No, you go in the hole. Now, these rates were raised in 1986 to $25 to $35 per hour, which is still not adequate. They were again raised in 1992 after negotiations between the Bar and the Bench and court administration. At the same time that we set up 19 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 what was known as "the guaranteed fee systems," they were raised to between 40 and $60 per hour. Again, these are not market rates, but they're enough to assure that if paid to the attorneys who contract to do the work, the lawyer at least won't starve, won't have to declare bankruptcy. Those are the present rates. The problem we have, many of us lawyers now, is that even though we contract to do the work, we do not necessarily get paid what we submit and what work we've done. And there is no 13 system at the present time to arbitrate or to adjudicate whether or not the lawyer has fairly earned the fee that he submits. And when we're talking about the guaranteed fee system, we have an established preparation fee and we have a per-diem fee; it's very simple. And if the lawyer was in court on the day that he says he was in court or that she says she was in court, it's easy enough to check the computer to assure that the case was on trial and the case was being heard. It's not a function that a judge need involve him in. A clerk can do that, somebody from the fiscal office can do it. 20 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Nevertheless, many lawyers report to me and to others that even guaranteed fee submissions have been cut. This is not appropriate. This is not fair. It's what the lawyers contracted for, it's what they agreed to do. And I can assure this Council, when somebody goes out and tries a death-penalty murder case and they agree to try a case for a preparation fee of $1700 for the weeks or perhaps months that it will take them to prepare that case for trial, and when they agree to try the case for $400 a day and not get paid for the first half-day of trial -- that's part of the agreement we have, that the first half of day is, shall we say, "on the house "-- that's an extraordinarily low rate for pouring your heart out on the floor of a courtroom, trying to save someone's life. And to submit a bill at the end and to be not fully paid without any explanation is simply not fair. It's not right. And I speak not only to the guaranteed fee system because there is appellate work that lawyers do where they submit bills, and if there is any question regarding the proprietary of the 21 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 bill, there should be an inquiry. But if there's no grounds to believe that the work wasn't done, the bill should be paid, the bill should be paid in full. So what we seek is assurance and regularity of payment for lawyers. The amount of money that Judge Bonavitacola spoke to when he testified before this hearing, of $10 million, in my opinion, having been involved in setting up the guaranteed fee system and having been involved in negotiations in this -- since the early 1980s I've involved in this -- $10 million, in my opinion, is adequate at this point in time, unless there is a radical change in the system, such as the Commonwealth getting a right to the jury trial, which they've labored so --
I'll say nothing more about that, Councilman Ortiz. But presuming we have the system that we currently have today, $10 million should be adequate. What we want to do is to assure that that $10 million will in fact be expended for court-appointed attorney work for dependent 22 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 children and the indigent citizen accused. Thank you for this opportunity to speak to the committee. I will answer any questions that I am asked.
Thank you, Mr. Chairman. First let me say that my offer at bypassing an opening statement was -- and I'm sure the attorneys will appreciate that. That was a mere diversionary tactic to all me to have my muffin and my orange juice. Now I am adequately prepared for this morning's hearing. But thank you for all of your testimony. First, let me try to-- and just as we bill the record for this public hearing, the people who are testifying, you know this issue very well, and certainly Councilman Cohen does an Councilman Ortiz. I have had some previous experience in this. But just for the record I'd like to get some information. First, the $10 million figure, where 23 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 did that come from and what is the current level the expenditure?
Well, the present -- the present allocation is out of the Court of Common Pleas. You --
The present allocation is out of the Court of Common Pleas budget. That's where the money comes from.
Right, I understand that. Do you have any idea what that total may be today, out of the Common Pleas Court budget?
I can speak to that if I may, at least the figures that we have. I know that Judge Bonavitacola indicated on March 3, 1998, when he testified before this committee, that $10 million of the budget went to pay for legal counsel to the indigent and criminal defense cases and juvenile delinquency dependency matters. And that's as reported in The Legal Intelligencer, and I was 24 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 here then when he testified. In addition, I know that from documentation provided by the First Judicial District, that the request for Fiscal Year 1998 was million even thought the apparent 7 expenditure could be -- or was presumably going to 8 be close to million, as requested of this 9 committee and of Council. 10 The amount expended as a -- again, relying on the figures provided by the First Judicial District, through February of 1998 and Fiscal Year 1998 was 4.85 million, which would be at a rate of approximately 600,000 per month, as I calculated, over that eight-month period, which would mean that the actual amount of expenditures, if we extrapolate, would be 7.2 million. So those are the numbers that I'm looking at. And there be a little bit of play in the numbers, but it seems to me that the actual numbers expended are lower. And if this trend continues, the amount expended this year will be significantly lower than the amount expended last year or the year before.
All right. So is 25 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 it your testimony that you have information that indicates that even the court system says that it costs about dollar $10 million to run the program. And I'm going to assume for these purposes that that $10 million is no different that the 7 million you're asking for. 8 The problem is they expect to spend 10, 9 but the actual is less. And your problem is the 10 gap in between what you think it costs to run it and what actually comes out of the system?
Okay. And my recollection of this issue was -- or my first involvement in this was there was something called "a guaranteed fee system," and then I believe there was a change about a year or so ago; is that correct?
Well, sir, I -- I do not know that the guaranteed fee system has been abrogated; it may have been. It's not real clear to us whether it has been. There was a publication, The Legal Intelligencer, that it was abrogated, and there COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 was a further publication, as I recall, that it would be temporarily continued. However, there have been some modifications to the system which have occurred, which have not been instituted in consultation with the Bar. That I can tell this committee.
All right. Well, again, just for the record, tell me -- and I know, Mr. Haines, you've testified to this as well. What are some of the more -- I mean other than your general belief that there are problems with this and people need representation and those kinds of issues, can you provide, I guess, some real examples of why this is a problem? What is the deficiencies? What does a person not get if they don't have -- in the testimony of one person, I guess that was Mr. Alva -- competent counsel with adequate resources? What happens -- I can assume I know what happens when you don't get competent counsel. Let's talk about the adequate resources.
Yes. Councilman Nutter, I think it's -- this is a difficult issue to address for this reason: No lawyer is going to come here 27 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 and testify that he or she, as a result of the amount of money they get, are going to be incompetent.
Tell me that, without adequate resources, I cannot do X; or with adequate resources, I could do Y for my client.
Well, I may not be the best person to address this in one respect because I do not represent criminal defendants and I do not represent children, but I am so impassioned about this because I think you don't need to do that to understand that.
If a lawyer is given $300 a year to represent a child, there is a certain disincentive in that figure to be as aggressive as you might be for someone who is paying you at an 28 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 hourly rate of $125 or $225 an hour; in addition to which, if that's all you get and there is not sufficient money to hire an investigator to flush out the facts that you need or to hire a psychologist or a psychiatrist to support you and, you know, I'm sure you're going to hear that if there is an appropriate petition, that will be granted. But there is a certain disincentive on the other side because Judge Bonavitacola is given a fixed number by City Council. He's got to run a court system, and he's being asked not only to run court system but to pay the lawyers and pay the psychologists and pay the psychiatrists. And he well knows the more he agrees to give out to the lawyers and the psychiatrists and the psychologists, the less he has to run his court system, because someone somewhere along the line capped what he could get.
That to me is the fundamental problem, but that doesn't necessarily address your specific issue of examples. I think that all of the lawyers who do 29 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 dependency work would tell you that they can't do all of the things that they need to do, whether it is make frequent home visits where they see the children and stay on top of the children if their total compensation to represent that child is going to be $300 for a year. And, you know, the heart -- the blood isn't pumping as fast. It can't because of other demands against that kind of an income.
But you ought to hear from Danny because he does this kind of work, or you ought to hear from George because they do this kind of work, about their perception of the way in which it impacts.
May I just add this to Cliff's remarks, Councilman Nutter. The other problem that we would have when there's an uncertainty in both the source and the regularity and the amount of payments is that many of us -- we've striven -- when I first got involved in this, a lot of what I would regard as very good and competent lawyers were not involved in the court-appointed system. 30 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Because we have gotten a certain amount the of certainty and regularity, at least for a while, in the payments, we got, in my opinion, many more well-qualified lawyers to get involved in doing court-appointed work. The danger in going back to a system of uncertainty is that many of the very qualified lawyers will say to themselves, This isn't worth it, I don't want to do this, I can't afford to do this. And they'll drop out.
On the nonpayment or uncertainty issue, is it a case of the court trying to ensure that whatever is being charged against the court system or that you're invoicing for, is it a matter of checking to make sure of the veracity of the bill, or are they saying, you know, that person didn't need two other doctors to look at them or -- you know, when one would have done? Or is it -- I mean, is it just a management function? Is it, We have to be careful as we go through the first quarter, the second quarter, the quarter that we don't not only, I guess, go over what you estimate to be $7 million or $8 million, 31 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 but they end up, you know, in May of the fiscal year and the tab is already running at million 4 when they estimated 10 million. 5 I mean, who decides what is adequate? 6
And at what point 8 is there any containment in the bucks, or does it 9 just keep going? I mean how do you deal with -- 10
If there were, we wouldn't be having this public hearing.
It cuts across the entire system and the entire problem. First, there is the initial notice, if you will, that listen, don't even bother asking for this type of an investigation, don't even bother trying to get this type of an expert on your case because it's simply not going to be paid for.
That comes from the everyday running of the courts. When you go into a 32 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 courtroom and you're trying -- and we're talking about a major felony case or a homicide case because, obviously, those are the most serious, and you have to appear before a calendar judge, a judge who, for the most part, is very sympathetic to both sides and knows what representation entails and what competent representation entails. And he says to you, Mr. Alva, what do you need? Fine, I can't give you that, Mr. Alva, because we don't have that amount of money. Now, you're going to have to find private investigator who's going to do your entire investigation for $500. And if you spend more that, Mr. Alva, you can then ask me first time afterwards, but there is no guarantee you're going to get it. And, in reality, do you not; therefore, you do not get that investigator.
They won't get the amount of experts that O.J. was able to get.
How does the judge -- I mean, you show up in court. I mean, is there like a per diem or a deductible? I mean, is 33 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 there a schedule that, you know, this is the kind of case and this is what you get? I mean, how does --
You're talking different things. Under the guaranteed fee system, okay, you're entitled to --
I'm doing my best to stay out of all these situations personally.
You have guaranteed to you a set amount of money that you're entitled to. It's your prep fee -- that's your preparation fee, okay, that's a set amount of money. Regardless of how much time you actually spend on it, that is your prep fee. And if you are an ethical, competent, caring attorney, you expend way more time, hours, and costs than you're going to get back in your prep fee. In addition thereto, you get a per diem fee for the amount of time you're in court. These are on your felony and major felony and homicide cases. 34 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 You can then petition, separate and apart from that, for expert costs. Those are the ones that are routinely denied and/or slashed to the point of which you cannot get a competent expert or a competent investigator to conduct your investigations.
So how can you represent your client under those circumstances?
Exactly, that is the question: How can you? So what you have to do is, you have to say, Well, where and what is my main thrust going to be? Am I really interested in making a living and paying my overhead? Or is it my oath as an attorney and as a advocate to do everything I can regardless of the costs? So many people chip out of their own pocket to pay for the investigator. Many investigators chip out of their own pocket, and hope to make up in volume of cases what they could make if they were fairly compensated in one case. But, unfortunately, that noble individual that I've just described is few and far between. It's the marketplace. I mean, just 35 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 because you're an attorney doesn't mean that you're not there to make a living. And many attorneys say, What's my incentive for doing this? I'm not going to lay out of my pocket for this person so I won't hire that investigator. And if later I'm accused of being incompetent, I'll say I didn't have the money. So what happens, Councilman Nutter, is that the system becomes dollar-wise and pound-foolish. Judge Bonavitacola has met with me and said to me, You know what our system is getting killed on, financially killed on? Not so much what we're paying you to try this case, Mr. Alva, but we're paying other counsel to review on appeal the work that was inadequately done and incompetently done by other counsel, and we're getting killed paying on the back end. Why would the City pay such exorbitant amounts to the court to pay such an exorbitant amount of money for appellate counsel? If they had paid good, competent counsel on the front end, there would be less need of money on the back end.
One last question 36 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 in this area. You're in court. And if you're in our courts, then I assume opposing counsel must be the District Attorney's Office?
And do they have limits on what they spend to prepare their cases, get experts, bring in people to make the Commonwealth's case?
Their limits are only confined by the bounds of their imagination, okay? I mean, that is not facetious or sarcastic; that is the honest-to-God truth. They can demand -- if they want to demand a jury trial, they can make a death penalty on the most fragile of circumstances. Why not? You can liken them to the individual who goes into the restaurant, the finest restaurant in this city and says, I'll have everything on the menu. Do you know why? I don't have to pay for it. If I don't make out a death penalty, I don't have to reimburse I, don't have to answer to anyone. It's the court system that has to catch up with the District Attorney's Office. The District Attorney comes to you for budget money. 37 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
But in addition to budget money, they get grants, they get forfeiture monies. They get. . . We get nothing. The Defender's Office, by law, cannot get grant or forfeiture money. We get nothing. They get to order the entire side of the menu; we get to try to catch up.
Councilman, it may be of some assistance to you to draw some analogies. I suggested to you that I don't do this kind of work, but I do represent people, individuals in civil litigation, in private civil litigation. The last case I tried was in the spring of this year. The costs out of my pocket -- I'm not talking now about how much fee I earned, but the cost. And it was an automobile accident case involving an 18-year-old woman who died. The cost to me for experts and preparation and presentation was $47,000. Now, were you to pay every one of these lawyers to prepare a case at that level, $10 million wouldn't begin to touch it. 38 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 No one is here asking City Council, the City of Philadelphia, the court system for a Cadillac or a Mercedes; what they are asking for is, quite, frankly, a very bear minimum. The problem is, with a $10 million cap, it is still a very, very minimal amount of money.
I think this hearing is particularly important 'cause this committee has both lawyers and non-lawyers, and we've got to get this out clearly enough so that non-lawyers as well as lawyers understand the issues.
Again, to better understand the issue, is there another side of the coin? We've described the most serious crimes that involve lots of investigation, a lot of preparation. When you get to the minimums and the per diem, are their cases that are not as complicated? And I'm not suggesting that we shouldn't look at this on an individual-case 39 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 basis, but are there the good times too, when you have a very uncomplicated situation where that is a windfall for you?
Councilman, if I can answer that question. Yes, indeed, there is. And, in fact, when we set up the guaranteed fee system, we considered just those considerations, and there were trade-offs. The non-jury trial, the one-day, the half a day jury trial, often there is no per diem in that case. The preparation fees are much lower in non-homicide cases. Whereas in a homicide case, it's 1700 for the entire preparation. In a non-homicide case, it's $600. In a misdemeanor case, I believe it's 350. I mean, I haven't taken those --
But you could also be in court one day doing three misdemeanor 40 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 cases?
You could but, there is actually a cap on how many of those you can get per day. There's actually -- there are caps on those in terms of the per diem, so --
It's complex, but it's designed so that lawyers are not going to feast on the body of Philadelphia. It's designed so that people should not make huge amounts of money. And, frankly, when we set this system up, Councilman, there were -- before the guaranteed-fee system, there were some lawyers who were abusive in their billings. And, in fact, one or two of them were prosecuted ultimately by the U.S. Attorney. And that's as it should be, and good lawyers applauded that and good lawyers said that this shouldn't happen. I think the system we designed in 1992 is better designed to avoid those types of abuses. I will concede that on occasion there will be an abuse here, as there is in any system. And any lawyer of good spirit would applaud 41 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 cutting out those abuses and stopping them, but --
Well, I agree with you totally that if you're trying to represent someone and give them the best representation and you aren't assured that the monies that you've spent to investigate and to represent your client and you're not assured that those funds are coming back to you with some pre-approval process, I agree that that is not good representation. Because I know that, probably, there are lawyers out there that would say, Well, we'd like to do this but, unfortunately, we can't because we don't have the money.
That is a large part of the problem, and I am fearful that good lawyers, some of whom are here today in the gallery, may ultimately say, I just cannot do this anymore I can't afford it. I've got school tuitions to pay, I've got to keep my family under a roof.
Again, I just want you to repeat for the record that you're telling me that you could go and ask for an investigator and be told that it's basically your decision to get the investigator, with no assurance or there's 42 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 no pre-approval process where you can go to the courts and say, Look, I need approval to spend $1,000. And you can't get that approval?
There are times when you can't. There's a minimal fee, which you can get without pre-approval. But oftentimes, for example, if you want to get a very good psychiatrist or a pathologist in a murder case, there may be an issue regarding cause of death. It may be a legitimate issue and you want a good pathologist who could certainly, at least, rank with one that the Commonwealth presents, the District Attorney presents. And, frankly, for the amount of money that's pre-authorized, and if you can't get a further authorization, you can't hire your own pathologist, you simply can't do it.
Well, maybe you just hit on something. Wouldn't -- I'm not suggesting that it's tit-for-tat. But if the prosecution has a pathologist, shouldn't it be an automatic that you should have the same?
It should be, and it 43 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 should be in many other areas. In terms of an investigator -- and, again, I don't recall what the number is, but it's relatively low, it's in the hundreds of dollars that you're pre-approved for an investigator. But in many murder cases, again, your fees are going to go way beyond that if your investigator is diligent and does a good job. And there's no assurance that the investigator will get paid. And what many of my brothers and sisters out here do ultimately, is they pay the investigator out of their own pocket. They dip into their own fee that they got, which may or may not have been already cut, as paid by the court, and they pay the investigator because they want to make sure they do a good job, and they want to make sure investigator will do a good job in the future because these are conscientious people who want to do a good job.
Before Councilman Rizzo, the last court appointment I had was a 44 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 homicide case known as "The Egg Man Murder" at Broad and Girard, in front of a Wimpy's. It's been reported in various -- it's come into the newspapers on a number of occasions 'cause among the charges that have been pressed have been the bad work of the attorneys in the case. I was authorized to spend a total -- this was now in the late seventies so it's sometime ago. I was authorized to spend a maximum of $150 after the most eloquent plea I could make to a sympathetic court 'cause there are no 13 innocent -- there are no bad people involved; it's the whole system. For example, the court system has to pay all kinds of costs and they've got to make a judgment, Is the money wiser spent in this area than in another area? An often, the attorneys' fees suffer, and I'm sure other portions of the court system to suffer make money available for other expenditures. But what we're trying to -- and that's the reason we're trying to separate out one item. You know, the attorneys' fees, to see, if by having a separate line item, we could avoid the 45 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 attorneys' fees aspect, the attorneys' fees and cost aspect, not being somewhere where a court system pressured by financial needs, you know, seizes upon that as, Well, maybe we'll hold up a payment of the bills for a month or two or three while we meet some other need. So it's the whole system. And what we're trying to do is to figure out how do you begin approaching this problem to the end of making it possible to get proper counsel.
Well, no, no, I lost the case. I lost the case. And, actually, on the billing, what happened was I began billing for the minimum -- I think the fee then was about $1500 that I was entitled to. As I began preparing my reports, eliminating a lot of time before I even put it on, saying, Well, I'm not going to charge this. I probably did it only because I wanted to be extra sure, and maybe it's not justified so I'll eliminate it. The bill came to about five or six 46 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 times what I was going to be allowed. And I said, That's ridiculous, submitting such a bill. I've never billed for the case because it just seems such an awful thing, you know, to a bill of maybe or $20,000 of time that you really -- that you 7 had to spend, you know, after you eliminated your 8 volunteer efforts and to get such a payment for 9 it. 10 What then next happens is that, in many cases, a lawyer will say, Well, I just can't afford to handle a case because I've got to feel good about the way I handle a defense. Because there's nothing more burdensome upon a lawyer than the feeling of, you know, if I had just done a little more, maybe I could have produced a different result. Councilman Ortiz.
Thank you, Mr. Chair. I think we also have a problem. I would bill and then I would not get anything for months and months and months. And in fact, I think, from 1981, I'm still owed money, and I just, I think, sort of forgot about it. 47 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 So the aspect of you don't get timely payment, is that still current because I haven't had one --
No, it's not as bad. In fact, under the guaranteed fee system, you still get paid within 30 days; unless, of course, you're in dependency court, in which case it can be held up for many, many months.
Well, I did a lot of dependency court work, so it's -- and it's still in dependency court --
As the chair of my section, I get phone calls every week from attorneys who, for some reason, despite letters, petitions, etc., cannot get paid out of the Family Court.
I think my wife is still owed some money dependency court from 1983, I think, or something like that. I was reading a report yesterday, and I'd like to hear a comment about the Death Row and the many African-Americans and Latinos from Philadelphia that are on Death Row. And I can not help but think that this is -- I think the inadequate defense has something 48 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 to do with a number of these indigent poor folks that are on Death Row, of color, and the outcome of their trial.
The Commonwealth has, as we've already indicated, unlimited resources. They can bring in witnesses. Indeed we have heard -- unearthed in the last six months instances where they had brought in witnesses, paid them, put them in hotels, paid for their drugs so they could testify. And we cannot have, brought down from the State system, a defense witness because there's no room in the jail and the sheriff is underbudgeted and they can't bring a witness down. This happens routinely, Councilman. They get to choose -- the Commonwealth gets to choose what penalty they're going to ask for, and now you have counsel -- and not all counsel are created equal, not all court-appointed counsel are as good as one another. Because of 49 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the economics of this system, your good, competent, long-standing counsel cannot afford to handle it. Many of them think it's beneath them. So what is left? You have warm bodies or you have individuals with new practices who want to supplement their income, and they take court appointments until they no longer need them. Since a homicide case, unlike a regular felony case, is assigned by a judge -- in other words, you get on a court-appointed list for a misdemeanor or a felony, yes, it's the judge who puts you on their list. But it's ordinarily given as your name comes up on the wheel. But a homicide case, now that's a plum. That is assigned by an individual homicide judge to a friend or someone who needs a favor.
Well, with the same restraints and constraints of the other cases, right? In terms of financial ability to be --
Absolutely, but these individuals very often are not qualified. However, they do have a friend who is a judge, they get more than a competent counsel, more 50 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 appointments, and then they're faced with the everyday restraints on their budget, on their allowance of resources. They know that if they try a death penalty case, they're going to be there sometimes for weeks. And then they submit that guaranteed fee and they're cut, they're cut. And there's no 9 explanation as to why they were even cut. Now the bells are beginning to go off. So what do they do now? Very often, competent counsel says, Do you know what? The burden upon me to do a good job, I can't handle it myself, so I need a second chair, I need a second attorney. And, indeed, that is what the American Bar Association recommends in capital cases, to have two attorneys because there's so much work. The problem is that the second attorney, he gets paid even less than the first one. And even if he gets a court order that he or she should be fully paid, that's not being honored by the court system. The District Attorney in complicated cases has two attorneys. The Defender's Office that's been handling homicides cases in the last 51 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 decade routinely assigns two defenders, and they have full-time investigators to do their work and full-time litigation experts. You've funded their budget, they've convinced you of the need for them to have that. But the poor that doesn't even -- I mean, how many times have you heard when you practice, "Oh, I don't have a real lawyer, I have a public defender." Well, guess? The public defender is doing better work because they're better paid on these death penalty cases than private counsel who are competent, because they can't even get the same amount of money that the defenders get.
Councilman Ortiz, the American Bar Association, the Pennsylvania Bar Association, and the Philadelphia Bar Association have all call upon the legislature and the governor to impose a moratorium on the execution people on Death Row until there is an adequate determination that the people who are there have been put fairly and justly. And we would welcome the support of City Council in that energy and in that -- 52 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
We have a district attorney that routinely calls, and we have a governor that is dying to really -- well, it's a bad use of words, but he is very happy to sign as many execution notices as he gets in front of him. Does that also go for witnesses? Because I know a friend, an attorney court-appointed, and he called me very recently that there were witnesses in Puerto Rico that he needed, and there was not -- he didn't have the wherewithal, and the people were indigent, they could not travel, they could not afford to travel here. And the aspect of not being able to produce those witnesses for -- obviously, for his clients really was damaging his case.
We had a case in point in there in which the judge wanted to go to Puerto Rico and take the testimony. I don't think it ever happened because I think the district attorney opposed it at that point. Is there such a case, you know, that can happen along those lines? 53 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Well, that's not an extreme example but it certainly, distance-wise, is a little extreme. You cannot bring witnesses in unless it's at your own expense. The court will not pay for that. That is not a refundable expense. So if you do so, you do so out of your own pocket.
You cannot bring witnesses that may be exculpatory in -- but the State could do that, right? I mean --
Oh, absolutely, absolutely. The State will extradite witnesses, bring witnesses, house witnesses because it comes out of the people's pockets.
But the court -- not that the court wouldn't like to give you the money; the court doesn't have the money to give you for that, so you have to make do.
We have many, many more speakers that can answer these specific questions.
So we have a direct correlation between Death Row and the aspect of 54 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 competency, the aspect of payment, and the people and the color of the people who are represented in that Death Row.
Absolutely. Just check to see how many of those people on Death Row were represented by court-appointed attorneys. Absolutely.
At this time -- everybody here has time limitation. I'm not speak of the Councilmembers; I'm speaking of those here.
I would like to suggest that we thank the panel, that those of you who can remain, we'd like you to remain because questions may come up that we've not addressed. I'd like to ask the Judicial panel to come up and then I'd like have the City panel so we get all the issues before us. And so at this time, I'd like to ask Judge Bonavitacola, Judge 55 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Silberstein, Mr. DiPrimio, or whoever the court panel would like to have with them. I may not have all of the names. (Members of First Judicial District of Court panel come forward.)
I'd like to suggest at a Mr. Estes and Mr. Kaplan of the City might come within the bar, just in case questions are raised. As a matter of fact, it might be good if we united the two panels. Why don't want you both also sit at the table so we get a clear picture. (City of Philadelphia panel members come forward.)
Now, you heard the outline of the problems. And I'd like to suggest, Judge Bonavitacola, that you designate the order in which you'd like the Judicial panel to be talking. JUDGE BONAVITACOLA: My name is Alex Bonavitacola. I'm the President Judge of the Court of Common Pleas in Philadelphia County and Chairman of the Administrative Governing Board of the First Judicial District. I have with me, seated to my right, in 56 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the blue suit is Joseph DiPrimio. He is our Court Administrator of the First Judicial District. And Kevin Cross is on my extreme right. And Kevin does a great deal of our budget work and has prepared documents that you have and that he has forwarded to you for your scrutiny. Our position today is that we're not here to testify in favor of the resolution, nor against it. We are not proponents, nor opponents. We are here merely to shed whatever light is needed in the way of facts and figure so that the Council will have before it as much information as we can possibly give them to help them make a decision. If the Council decides that they wish to have an independent agency administer this money, that's all right by us. We don't have any desire to covet this money or to distribute this money. All I can tell you, Councilmen, is that someone, whoever does this, had better exercise some fiscal restraint; otherwise, this could be a pit into which millions of dollars could fall. For example, there's been talk here this morning about the lack of investigator's fees 57 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 expert witnesses' fees. As of the end of May this year, we have already spent $480,000 in expert witness fees and in investigators. And that, I think, is a considerable amount of money.
Your Honor, can I ask you a question on that point? JUDGE BONAVITACOLA: Yes.
Do you have any information on all of those same cases? What's the figure, 400 and -- JUDGE BONAVITACOLA: About $480,000 on petitions and requests already received and pay.
For experts, did you say? JUDGE BONAVITACOLA: Experts and investigators.
Could you provide us any information, or do you have the ability to get any information for the same cases, can you tell us what the Commonwealth spent? JUDGE BONAVITACOLA: No, I'm sorry, I don't -- I don't have that. 58 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Is there any way -- I mean, I don't necessarily expect you to have that; that's not your job. JUDGE BONAVITACOLA: The District Attorney would have that.
Is there a way to get that kind of information? JUDGE BONAVITACOLA: I would assume that the District Attorney has that information because they have investigators on staff.
I understand. JUDGE BONAVITACOLA: And if they compiled their salaries, you would have an answer.
I'd be very interested if you could get us whatever the cases are from which that figure derives and through our own devices, I'd like to be able to pursue getting the information on the other side to try to make some comparison. JUDGE BONAVITACOLA: Well, all right, I can supply you with this, which shows the numbers that we have paid out to date.
Do you have a comparative figure for the attorneys' fees -- 59 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: Yes.
-- covering those same cases so we have something to compare it with. JUDGE BONAVITACOLA: Well, for example, it --
I don't really know whether it's a large amount of money or a small amount of money. JUDGE BONAVITACOLA: I don't know either. I can tell you this: There was a question raised as to where did the $10 million come from, the number. That's a number that we, the court, plugged into the budget that we submitted to the Mayor's office and to you personally. Where did that number come from? Is it a mythical number? No, it is not. In Fiscal Year '97, we spent $9,200,000 on counsel fees. In anticipation that this is an ever-escalating cost, we felt bound, in good conscience, to estimate that it would go as high as $10 million. I have made this promise to the City 60 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 and I'll make this promise to the Council, that any money of that million that is not spent, I 4 would turn it back to the City because it's not 5 money that we use for our other court purposes. 6 So we estimated, based upon last year 7 and a history of ever-escalating counsel fee 8 costs, that $10 million is a much more appropriate 9 figure than anything else -- to date, to date. 10 This fiscal year we have spent $7,500,000, or close to that, and there's at least 10 percent of the petitions that have not yet been filed with us for completed cases. I don't know when they're going to come in, but assuming they come in in this fiscal year, we're going to have to pay them. So you can take it from there. As of the end of the month of May, we had already paid out almost $7-1/2 million. There's at least an 8 percent, 10 percent shortfall in petitions, which we know are out there. And when they're paid, we expect this figure to climb substantially.
Your Honor, you may be -- you made the -- I'm sure you've already distinguished yourself in your career, but you may 61 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 also have the further distinction of possibly being the first person at that table, literally sitting next to the Budget Director, who has ever offered to turn anything back to us, under any circumstances. JUDGE BONAVITACOLA: I just wanted to say that because it's not money that we count upon to --
I know that it's a sincere statement, and I take it that way. I think, though, that we may be in a circumstance where it's really not so much that we're asking you to turn it back to us -- and I'm sure we could find something to do with it. My impression from the panel is that they just rather it be spent for the purpose which the court system, within its own internal budget, has allocated. When did the $10 million anticipated spending figure arrive on the scene? How long has the $10 million cap been around? JUDGE BONAVITACOLA: It's not a cap; it's a number that --
Or estimate. 62 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: It's a number that we arrived at as a result of our own in-house budgetary -- well, we had a summit in which we looked at every number to make sure that it was a zero-based budget, and we came up with the $10 million internally.
Okay. I mean, the reason I ask is because just over the past three fiscal years, excluding the fiscal that year we're in, if I'm reading from the chart correctly in, FY '95, you were at $9-1/2 million. FY '96 looks like -- JUDGE BONAVITACOLA: 8-8.
And in FY '97, it's 9.1. Again, just based on the testimony, it sounds like people just want to get to whatever it is -- if you've laid out that it cost $10 million, or $10 million is adequate, I think the previous testimony was some agreement that $10 million is adequate -- I mean never spend just for the purpose of spending, but I assume, based on these types of cases, there must be things that are 63 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 legitimate that could be spent on. It sounds like people just -- if you're saying that that's what it takes, then they want you to go to that point. I don't think anyone's making the argument that you should send it back to us. There are probably some other departments we'd love to have something back from, but this is not one of them. I had asked earlier, and you're in the position of having to make these tough decisions, I'm sure your concern is, fine, if we say 10 and we spend, you know, 9.9 on out, what happens the day that it goes to 10.1 or 10.2, 10.5? How do you ever either pull it back, keep it under control? Someone's always -- someone will always have one more person, I guess, that they feel that they absolutely, positively have to have in. How does the court, on a regular basis, and then as it filters down from the President Judge to the jurors in the courtroom, how do they decide case by case, this big $10 million budget, they're one of -- what do we have, 90-some-odd judges now scattered all over the place? 64 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: Yes.
How does that individual judge make the determination as the unbiased party in the middle on ensuring that the person gets good and adequate and fair defense? JUDGE BONAVITACOLA: The petition is first --
Notwithstanding whatever phone call they think they might may get from you or Mr. DiPrimio a half hour later about why did you approve, you know, $500,000 in costs for this case? JUDGE BONAVITACOLA: Well, Councilman, to answer your question directly, the petition for the payment of counsel fees goes directly first to the judge who's in the trial room. That judge then passes on it, either approving it as it's submitted or saying that I don't believe that this expenditure of time was necessary or whatever. Then it gets forwarded, in the case of homicides cases, to me, as my statutory duty to exercise oversight; or in the case of non-homicides cases, to the administrative judge of the Trial Division; and in the case of matters 65 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 in the Family Court, to the administrative judge of the Family Court, to give a review of it to see if there's anything that is -- sticks its head out as being an inappropriate request for monies. For example, there's been some talk here about the guaranteed fee system and how judges are cutting what heretofore was a promise to pay. And a lot of that arises because some of the attorneys misunderstand the guaranteed fee system. There is a preparation fee for which we don't ask, tell me how you how many hours you took to prepare it. There's a flat preparation fee which is to include all pretrial matters up until the day of trial. And often times -- I have seen it myself -- the preparation fee for homicides is $1700. Then the first entry shows me that on September the 1st, there was a half day's activity for $200. And then the very next day's activity is April of the following year. Now when I look at that, I know that that September 1st was a pretrial matter, because the trial started April 1st. So I'm not going to 66 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 allow that first bite when it's included in the preparation fee. If that's what they call cutting, yes, I do that. However, if somebody has days in 6 trial at $400 a day, we don't tamper with that 7 because a trial judge has countersigned a voucher 8 that the lawyer was in the courtroom for that day. 9 And we pay, we don't cut that. 10
Let me ask you a 11 philosophical question, and I know you to be a 12 fair-minded person. The issue of the adequacy of resources for the indigent person and their ability to get a fair trial, whether it's court-appointed counsel, the Defender's Office, when that person finds themselves coming up against the Commonwealth and their resources, is there any belief that that person and their ability to have a fair defense should have some level of resources that is near or comparable to what they are faced when they come in the courtroom? I mean, is it -- JUDGE BONAVITACOLA: I think that's why I tried to show you that to date, we've spent almost a half a million dollars on investigators 67 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 and witness fees to counsel who need them in the cases. How can we ever equalize --
Well, let me expand on a hypothetical. JUDGE BONAVITACOLA: Go ahead.
And Councilman Cohen asked the question, so we don't know whether a half a million is a lot or a little or -- I mean, we need to -- JUDGE BONAVITACOLA: I don't know, either.
Whether it's a lot or a little as compared to what. But, I mean, if we do the analysis that I asked you about and if we were able to -- if we came back and looked at the same cases that you spent $500,000 on for investigators and witnesses and we found that in those same cases, the Commonwealth spent a million and a half dollars, is that fair? Do you think those folks were adequately represented? Did they have an equal shot when they walked into the CJC or Family Court? Or, I mean, wherever the case was going 68 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 in? JUDGE BONAVITACOLA: I don't know, quite frankly. Not having been in the case, I can't tell whether it was fair or not. Sometimes on behalf of the overkill Commonwealth there's overkill where they'll have three investigators making the same investigation; as opposed to the defense counsel having one investigator make the investigation.
Well, they like to win. JUDGE BONAVITACOLA: Yeah. So it's hard for me to say honestly whether it's fair or not. All I could tell you is that we do the best we can with the funds that we have and try to allocate it where needed.
I understand. Is there a way -- I mean, is there -- I think there's been a proposal that -- I mean, one, the defense lawyers' group apparently would like the money in a separate line item. I don't know whether they actually want someone else with court involvement to decide what gets paid, what doesn't get paid, what's adequate, what's not adequate. 69 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 What are your thoughts or views on that? JUDGE BONAVITACOLA: Councilman, if it is a line item for the Court of Common Pleas budget, we are still going to have to exercise fiscal scrutiny on the bills that are submitted to make sure they are appropriate, proper, and computed in an accurate way. That won't cease merely because there's $10 million there for everybody to share in. So I don't --
Are there better ways to monitor the kind of bill or invoices that are coming in if the charge is made that, you know, somebody sent in a bill saying I spent,, you know, a half hour reviewing, you know, some letter that my client sent in. I spent, you know, 40 hours this week looking for the file. You know, the file might be, you know, as thick as the papers on this desk. I mean, are there, I guess, more controls? JUDGE BONAVITACOLA: Other counties --
-- that you would 70 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 suggest putting into place that make sure -- and I'm not making charges against anybody, but if you have concerns about these things and everybody generally agrees that, you know, maybe takes about five, ten minutes to read a letter and not a half hour or an hour. Whatever these various practices are, is there a way to deal with those things? JUDGE BONAVITACOLA: There are other simple ways to deal with it and that is done by some of our surrounding counties and, in fact, other states that are fairly comparable to Pennsylvania where they cap the fee. And say, for example, Montgomery County. Homicides appointment is $5,000, capped. Delaware County, $25 an hour, maximum of $125 per day. Bucks, Chester County, we're going to hire lawyers and call it whatever you want to call it Defenders 2, Defenders 5, and we're going to staff those rooms and we're going to pay them an annual salary. There are other ways that other counties and other states have devised ways to control the expenditures entirely. Then it becomes entirely predictable -- 71 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 well, not entirely. It gets easier to predict.
Judge, just going back to the point where I got the impression that attorneys were told to roll the dice basically, hire an investigator, and you might get compensated. How do you respond to that? Is there ever a time that an attorney is given the -- it's suggested there's a possibility -- now, you describe that the judge in the courtroom is the one that makes the decision. I thought I heard about where there are occasions when a lawyer is told, Yeah, go get that investigator but you may not get paid. Is there a gray area? JUDGE BONAVITACOLA: There is a little bit of a gray area. And that is there is a certain stated amount -- in homicides case I believe, it's $500, and counsel says, I need investigator. And the calendar judge, who controls all the homicides cases, says, Okay, you got your $500. Then the attorney comes back and says, judge, I may need more money, I may need more 72 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 money for this investigator. Now, the calendar judge's answer, I can almost predict, is going to be, Well, you're going to have to file a petition for it and set forth the reasons why $500 is not adequate. Now, I mean I could --
Couldn't that be an area that could be addressed to clear up -- you hear attorneys saying that they went out and spent the money out of their own pocket and that's wearing thin, and I can't imagine any profession -- dentist, doctor, auto mechanic that could continue to operate not knowing whether they're going to get reimbursed or not. JUDGE BONAVITACOLA: No, I think that's an imposition to expect counsel to pay it out of their pocket for the shortfall. But maybe what needs to be done is that it's difficult at the end of the case to come in with a petition and say, Well, the $500 you gave me for my investigator was insufficient because after all these weeks of preparing the case, I now need $2,000 more. So maybe the petition for the 73 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 additional investigator or witness fees has got to come up front before the time is actually spent and the expense incurred in the way of an estimate.
But like, Judge, in any profession, and I assume it could work, couldn't documentation -- I mean if a lawyer comes back in and said, We need an extra $300 because the investigator went over, that the investigator obviously submits some type of a bill to the lawyer, wouldn't that be some paper trail that would help you? JUDGE BONAVITACOLA: It would be a paper trial. I don't know how reliable it would be, but it would be a paper trail.
So, you know, anybody that submits false documents is -- I mean, I heard somebody mention that some lawyers went to jail or were prosecuted for -- JUDGE BONAVITACOLA: Well, we happened to catch him because of our computer system, where he was billing for the same day for different cases at the same time.
It was an easy case. 74 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: It was a "slam-dunk," as they say. But it's almost impossible for me to monitor what an investigator says he spent in time. I just would have to either take it at face value or -- it's a very complicated issue.
Yeah, I think I can hear that you agree that it's tough doing business if you don't know how much your expenses are going to be. JUDGE BONAVITACOLA: That's right.
To adequately represent someone without the tools that the prosecution has. As Councilman Cohen said, as a nonlawyer, you don't need to be a -- well, maybe you do need to be a genius to figure this one out. JUDGE BONAVITACOLA: You're right, Councilman, and I can't argue with that.
While you're here, could I ask George Newman and Daniel Alva to kind of join the group for a minute or two. It's rare that we have an opportunity to do something 75 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 immediately, and I want to know where whether it's possible. There was testimony by Judge Bonavitacola that to any extent that the $10 million is not expended by the end of this fiscal year, June 30th, is that right, Judge Bonavitacola? That you would be prepared to return the money to the City budget? JUDGE BONAVITACOLA: No, I think we're talking about next fiscal year -- not this fiscal year, next.
Oh, in the next fiscal year. JUDGE BONAVITACOLA: Right.
And that begins July the 1st? JUDGE BONAVITACOLA: Correct.
Well, how about with respect to the current fiscal year? What's been the expenditure so far this year? I must have understood something. I thought I heard -- JUDGE BONAVITACOLA: Almost $7-1/2 million.
Almost 7 and a half. 76 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: And that's as of the end of --
-- May. And you expect percent have not submitted their bills 6 yet? 7 JUDGE BONAVITACOLA: Well, we know 8 certainly that there's at least 8 percent that 9 have not submitted their fee petitions yet. 10
So that may be another three quarters of a million. You were talking estimates. And then you have the whole month of June. JUDGE BONAVITACOLA: That's right.
But that may not be billed for it until the next fiscal year. I'm just wondering, is there any funds available from the -- was the $10 million figure submitted by the courts with respect to the next budget or was it -- JUDGE BONAVITACOLA: Yes.
Oh. What was requested by the courts for the current budget that we're in? Was it the 9.1 million? JUDGE BONAVITACOLA: Mr. DiPrimio can 77 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 answer that better than I could.
Councilman Cohen, the budget appropriation that was approved by Council and the City was $7.698 million, and the difference -- the FJD appropriated a total of $8 million for FY '98, the shortfall being made up from the FJD fiscal year operating budget. So for this fiscal year, we have a line item in our internal operating budget of a total of $8 million.
And how much of that has been expended or is likely to be?
The exact figure as of the close of May book was $7,377,684. Again, I want to underscore what Judge Bonavitacola mentioned, that we anticipate a -- that lawyers have been behind in submitting their fee petitions through the year at the current rate of 10 percent. And if that rate continues, that should equally apply to the month of June. So we're looking at the potential for yet further subsidization of counsel fees out of the FJD fiscal year operating budget; notwithstanding the fact that we have allocated -- 78 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the Board had allocated $8 million in total for that expenditure.
So you're expecting that there will be more than $8 million spent.
Could I ask Mr. Newman and Mr. Alva, does that generally exhort with your understanding.
It does. But I think, if I may, that a further clarification is necessary each. Year if you look at the chart -- and I think Council has this chart -- a certain amount has been requested, but that amount requested or line-itemed by the First Judicial District has always has been way below what they anticipate actually spending. So if you look at the bottom and you look at Counsel Fee Expenditure Deficit, each year that deficit has ranged anywhere between 1.4 million and $3 million dollars. So the reality is they've consistently underbudgeted. And if you look at what was actually expended last year, 79 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 according to the First Judicial District, it was close to 9.2 million. So if only million is spent this 5 year, what has happened is there has been a 6 contracting of the expenditures for counsel fee 7 petitions. There has been economies, if you will, 8 in spending for lawyers. And that's a lot of what the lawyers here have been complaining about, frankly, which is that there have been cuts in the petitions, there have been cuts in the amount expended, there have been payments which lawyers anticipated would be made, which have not been made, and that's where the problem comes in. The $8 million figure is not a realistic figure if you look at the previous years, if you look at what was actually spent. A more realistic figure for this year, I think, if you had anticipated a slow, steady growth, would have been somewhere in the $9.5 million range. But that isn't happening.
Judge Bonavitacola, could you respond? From your point of view, is there merit in what is being said? Or is there a different interpretation? 80 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 JUDGE BONAVITACOLA: Well, I think everybody in this room has to understand very clearly that counsel fee petitions are an unpredictable expense. I know how much it costs me to pay salaries for First Judicial District employees because if I look and if I have a hundred and I multiply that by their annual salary, I know exactly how much it is. For counsel fees, one never knows. It could be $6 million. If they hold back petitions and don't file them, and then the next year they dump them in the system, it could be $9 million. There's just no way to predict it with any certainty because it's -- the means of prediction are not within the court.
All right. Now, within the picture that's been talked about for the next year, you heard Judge Bonavitacola say that if the expenditures are less than 10 million, he would be prepared to return the money to the City. Councilman Nutter, acting on behalf of the way I think all Councilmembers would feel, or at least the overwhelming majority would say, We'd 81 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 rather have that money go into the court fee system, you know, if there can be an agreement for the expenditures. We want to make sure that the expenditures are proper. You know, we're not in the business of wanting to give away money, but if there are proper expenditures, we think that million 9 ought to be spent for the purpose for which it was 10 appropriated. Now, is there any way in that proposal by Judge Bonavitacola that the Bar, the Criminal Justice Section could work together to see that at least the $10 million was spent for the purposes? Would that alleviate the problem at all?
Absolutely, absolutely, it would. If there were 10 million available for --
We're talking in the next fiscal year, beginning July 1st.
And what I'm gathering, Judge Bonavitacola, and from Mr. DiPrimio is that, in effect, there is an informal line item in your internal budgeting --
That's -- 82 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
That is correct, Councilman Cohen. And I would like to underscore for the committee today that through Fiscal Year 1997, the First Judicial District, out of its operating budget, has supplemented the counsel fee appropriation shortfall by $11-1/2 million dollars. That was funds that were intended or appropriated for employees or other programs, that were diverted so to speak at the end of the fiscal year to make up the shortfall. Secondly, I want to clarify that in FY '97, when the Administrative Governing Board tackled the issue of the runaway counsel fees, the plan was implemented, I think, on or about March 10thof 1997, during the fiscal year. And so without the restructuring -- or the implementation of what called "the modified guaranteed fee system," we would have far exceeded the $9.1 million expenditure that in fact occurred. And, I guess, lastly, I would like to amplify the fact that the restructuring of the 83 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 guaranteed fee system, or the attempt to come to grips with how our expenditures were running, was done at the urging of various members of the administration, so much so that when the First Judicial District submitted its spending plan for those prior (unintelligible) funds, one of the contingencies, as I recall, was that we address counsel fees.
Dean Kaplan -- Mr. Kaplan and Mr. Estes, would you have any objection, if there's a $10 million item in the budget for counsel fees for the fiscal year beginning July 1st, would you have any objection to some procedure being set up by, say, court administration, obviously with the approval of Judge Bonavitacola, the President Judge. But to have some system set up to see that that $10 million is in fact used for that purpose and not used for other purposes?
It seems to me that 84 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 that would offer a good opportunity to see if we could develop a workable procedure and could learn from that experience.
What we need beyond the dollars is an absolute workable agreement whereby counsel and the court can meet regularly, as not necessarily equals, but at least that we have a say in the administration of this money. Up to this point we have been dictated to. Before this year, there were two or three years of no communication whatsoever. Perhaps there were other pressing matters or perhaps we were deemed that it was not necessary to talk to us. But as of this point, besides the money, we would like to sit down with the Administrative Governing Board on a regular basis and have some meaningful input. We don't want veto power. We just want to be listened to so that when someone arbitrarily says if a case has to be 85 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 retried because there's been a new trial granted, there won't be a prep fee the second around. And that is the case, and that's obviously been implemented by someone who's never had to try a case on a retrial basis. It's more work not less work. But we'd like to be able to sit down with that person, and rather than complain about what's been implemented without us to, have some say. Sir, excuse me, this is what this entails, please reexamine that. All we want is fair compensation and a say in how that compensation is handed out. That's all we've ever wanted.
Judge Bonavitacola, did you indicate that you wanted to make a reply to that? We think it's a great idea. I didn't see any indication of any unwillingness to do that. Would that be a good idea? JUDGE BONAVITACOLA: Councilman Cohen.
Right. JUDGE BONAVITACOLA: If you put $10 million in a line item or segregated it, I am not 86 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 going to promise you that I am going to sign vouchers until I've expended every penny of the $10 million.
We expect you to be as careful about that money as you are today. JUDGE BONAVITACOLA: Absolutely. I want to make that clear.
Yes. JUDGE BONAVITACOLA: If you say it's $10 million, that doesn't mean I'm going to spend 10 million; I'm going to spend what is necessary, proper, and appropriate.
That's right. But, apparently, you have been spending more than what's appropriated up to this point. We would like to be able to work it out so that the expenditures approximate more closely what's been appropriated, but we'd like to achieve that have been talked about 'cause I think it's in everybody's interest. Now, there was a question made about participation. Is there any objection by the court or the court administration to some ongoing system whereby the Bar could express any feelings 87 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 that it has or have an opportunity to raise questions? Would that be with -- was that Mr. Alva that talked of that?
Now, who would the meetings be with? Who handles it? Would it be with the court or the court administration? JUDGE BONAVITACOLA: Let's review a little bit of history.
Okay. JUDGE BONAVITACOLA: Because those who don't profit every time are sure to lose. When the guaranteed fee system was put into place, it was a collaborative effort of the Bench and the Bar. When the Administrative Governing Board felt it had to modify the guaranteed system in 1996 -- 1997, the chancellor, the then-chancellor appointed, at his own discretion, representative attorneys from each of the disciplines within the criminal side to sit and appear before the judges and discuss modifications. It wasn't done ex cathedra where we just said, This is what's going to be done, I 88 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 don't want to hear from you, keep your mouth shut, we're closing our ears. This was a collaborative effort. We don't operate that way. I've relied on the Bar in many instances, and I wouldn't turn back on them and dictate to them without their input and consultation.
Councilman, I've always been very thankful for the informal meetings that I've had with the President Judge, but they're just that; they're informal. We'd like to see regular meetings with the court. The fact that we did, in fact, have three representatives who appeared and sat there and had input but basically had no say and they were dictated. In fact, those three individuals were basically shunned by the other attorneys in the City because they were under the impression that they had been sold out by these attorneys when these attorneys had no authority other than to sit there. We would like to be at the table discussing, listened to.
Well, let me -- let 89 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 me first say that based on -- based on this current conversation, I can't wait to see what the future conversations are going to be like. (Laughter.)
I do want to, I guess, better understand though, Mr. Alva -- I mean, what exactly do you mean by you want to have some input or some say in how the funds are expended? You gave an example of, I think, a case had been tried and now it's a retrial and somebody says, Well, you don't need a prep fee. I mean, that does sound to the uninitiated even, a little unusual. I mean, are you talking about monthly conferences where you're going to have discussions with some representative of the court and do a case-by-case review of who does need prep or who doesn't? Or, I mean, are you going to go over old history? Are you going to kind of monitor and say, Well, you know, it's now December. In the course of the fiscal year, how much have we spent, how much do we spend how much do we have to go filing, are people filing their invoices on a 90 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 timely basis? I mean, what do you expect?
Quite honestly, Councilman, we would like as much input as we would be allowed. We are just as in favor as the President Judge and court administration of marshalling and making sure that these petitions are correctly filed. Because when somebody tries to milk the system, it hurts us all. We would like to take part in those reviews because if we could see a pattern on the part of a specific attorney, we would like to take steps to remove that attorney from the court-appointed list. We would like to sit down with court-appointed --
Certainly. In any system, there are abuses. Absolutely. And we would like to play a part in the rooting out of those abuses because if take out the abusers, those competent counselors who really care about their clients and want to do a meaningful job can get the funds and get the appointments. Insofar as the everyday workings of the 91 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 system, we have been dictated to. Besides the issue of the court appointments and being paid a prep fee on a retrial, it was arbitrarily told to us -- and we understand that hard decisions had to be made -- that in Municipal Court appoints, and there are much more Municipal Court appointments than there are CP and homicides appointments -- that there will be a flat fee. That would be it, there would be no more guaranteed fee system regarding Municipal Court appointments. Flat fee only and juvenile, flat fee only.
I'm sorry, you'll have to take me through that a little bit.
Certainly. Rather than a prep fee and an agreed-upon per-diem fee for a trial, there would be a flat fee, regardless of whether or not you tried the case or pled the case.
No matter what happens in the case, you just deal with it.
Exactly. 92 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
And in the guaranteed fee system, you've got hours that you've spent, days that you're in court, all of the additional things you discussed, that's the different between them?
In a flat fee -- first of all, a flat fee has been condemned by the American Bar Association because there's no incentive on the attorney's part to try the case. He or she is going to get the same fee whether they plead a case or try a case. How does that look to the general public? What faith does that give the individual knowing that the attorney sitting next to them is getting no more incentive to fight for them than if he just stood there and watched the whole proceeding or if he really got into it. That -- not only does that looks bad, it is unfair to counsel. 93 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Secondly, we were told, from now on, if you get appointed to a case, regardless if it's Municipal Court or court-appoint in a felony, and let's say you prep that case, and let's say you prepare that case for trial the next day. So what do you do? You bring in your witnesses, you read all your law, you spend many, many hours. And when you get to court, if that case gets continued because, number one, your client wasn't brought down because there's no room for them at the inn; number two, if the District Attorney is not ready; or, number three, the case doesn't get reached, you're not going to get paid for the time you spent in court that day. From now on, no fees for continuances, even if they're not your fault. Now, I agree there should have been some type of an amendment that if you went to court and you continued it, you shouldn't get paid for that. But if you sat there all day with your witnesses, sometimes at your expense, and the case got continued, no payment. As far as we're concerned, that day in court didn't exist. How can you operate under that system? 94 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 That was never discussed with us. And when we cried foul, we were told hard decision, this is the way we see solving the shortfall. We would have liked to sat down and discussed that.
Okay. Your Honor, can you shed any light on these kinds of discussions or what kinds of system might be able to be put into place or maybe just even your feelings about the whole idea, maybe that's a better place to start. And also I guess a little bit on how some of these decisions get made and when you pay and when you don't pay continuances and all that. JUDGE BONAVITACOLA: There's a -- there are enough issues to continue this conversation for the next three weeks. I am willing to sit down with representative members of the Bar and discuss things with them and see if there's some meeting of the minds. But, at the same time, I will not foreclose exploring other methods of solving counsel fee for appointed indigents because we have to have certain --
What do you mean by 95 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 that? JUDGE BONAVITACOLA: Well, whether it pays to just have conflict counsel appointed on a salary basis to sit in a particular room and take all those case that come in that room or whether it pays to cap fees and say, this is, this is the cap, take it or don't take it.
So you're talking about looking at some of the -- I mean, you articulated a couple of these as examples of what's going on in other counties. JUDGE BONAVITACOLA: Right.
Would you go through this exploration. Would the court do that by itself, would it do it in conjunction with all of the other affected parties? I mean, how you do you -- JUDGE BONAVITACOLA: Well, we would look at --
I mean, how do you make these changes? JUDGE BONAVITACOLA: We, the court, would look at it first to determine whether or not it was in the realm of possibly or probability. 96 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 And if we had to, then we would say to a representative group of attorneys, Here's what we have in mind. What do you want to say about it? Give us your objections, tell us how you can be -- why are you against this or why are you for it? Or what modifications should there be? I don't know. We haven't explored it that deeply except to gather information on what other people are doing in like circumstances.
Wouldn't it make sense to meet first and get an exchange of ideas that might or might not seem to offer to everybody involved the a discussion a good approach to a problem? JUDGE BONAVITACOLA: Well, I would first --
I agree with you if others, you know, if the court, by itself, in some fashion comes up with ideas, they ought to be discussed before they're implemented. I would think that would occur in normal human intercourse between groups that have to work together or live together. What we're looking for is a way to deal 97 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 with all of these things 'cause, you know, the beneficiary is going to be everybody here and the public if we make a system, one, in which everybody feels, you know, it's fair and equal. Would you have any objection? Mr. Alva spoke, I heard the heat in his voice, and that suggested to me that he feels in his representative capacity as if the Bar has been wrong in not being involved in participating in discussions before there are decisions. I didn't hear him say that the attorneys ought to make the decision; I heard him acknowledge that the court's got to make the decision. But he was talking about participating in a process so that their voices were heard and considered before an ultimate decision was made. And I would think that that would be in everybody's interest. JUDGE BONAVITACOLA: It is and it has been. And historically, it has been a collaborative process. That's why I said --
Well, why can't we get to that now, or does it exist? I gather from the heat in Mr. Alva's voice that he apparently 98 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 feels it doesn't exist. Now, I don't know to have to judge whether it does or doesn't. But couldn't we begin that process again? Couldn't there be a system operating from this point on? JUDGE BONAVITACOLA: Well, yes. As I indicated to you, when it came time for us to look at modifications of the guaranteed fee system, we asked the then-chancellor to designate spokespersons from the Criminal Bar to talk with our judges about modifications. That seemed to have pleased nobody.
Well, my understanding -- maybe I have it wrong, but I understood the Criminal Justice Section was the Bar organization that dealt with these things. And I have followed the protocol of each year. As it was a different chairman, you spoke to that chairman or chairwoman from that section to be brought up to date on all of these thoughts. I'm just suggesting that as, why can't we begin that way? JUDGE BONAVITACOLA: I don't have any problem with that. 99 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Well, may I suggest this: I suggest that we adjourn this panel and maybe there can be some informal discussions about having your first meeting, which you can report back to the committee as to when you think that might be, while we hear a number of other witnesses that have very severe time problems. Could we -- JUDGE BONAVITACOLA: I don't want to say no to you, Councilman, out of respect for your position, but I'm already an hour and a half late for other things that -- I just can't wait. I would like to sit down and talk. I have their phone numbers, I know where they are.
Would it be agreeable? Could we get a report back by, say, Monday? Could you fit in a conversation sometime today and set up the first date so we'll know that that's in the process. JUDGE BONAVITACOLA: I will notify -- I 100 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 don't mean to be captious -- as soon as I can. I can't promise I can have the conversation today and advise you by Monday -- today being Friday.
All right, but it would be very soon? JUDGE BONAVITACOLA: Absolutely.
All right. Then I'm going to excuse all of the members of the existing panel -- not to leave -- those of you that can stay, I would like to urge you to do so, particularly the two City representatives because things come up that affect you. Agreeable? The next witness would be Ellen Greenlee. Then Jim Lafferty, is he here?
There are two people here. Oh, you're going to be here, right, I want you to stay here.
May I also ask that Mr. Purl and Ellen Greenlee join the --
Miss Greenlee, who's been here all morning, had to -- 101 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
And is there a representative of the Hispanic Bar Association here?
There are four individuals here, and they'll speak separately because they're going to --
All right, they'll be in the next panel, all right. You've heard the discussion. If you have any comments about any of the portions that have been testified to so far, feel free to include that in your statements. Miss Greenlee, why don't you lead off.
Thank you. Thank you, Councilman. 102 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 I am here actually on behalf of the Defender Association, of which I am the Director, to add my voice in support of the resolution and in support of private counsel and their request for adequate compensation for representation in Criminal Court and in Dependency Court. The Defender Association, as you know, is funded by the City. We are a nonprofit association, and we represent approximately 70 percent of those who are charged with crimes and 70 percent of those who are in the dependency system. We are funded by the City, and we are funded by the City with the approval of City Council at a level that allows us to provide competent, effective representation because we have efficient funding to provide our own investigative services, social work services, and to have on staff even a psychiatrist, and several people who are psychologists who can work on the cases in team representation. While we have ongoing issues, as you are aware, in terms of salary issues and case loads that are growing and staffing issues that we 103 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 deal with with the City, I have to say that we have had over the years, and especially over the last few years, the kind of cooperation from the City through the Finance Department, through the Chief of Staff's Office, and through City Council, that allows us to provide the kind of education, training, and supervision of our staff, that I feel confident that when we are in court, we are providing effective representation. And, in effect, we really are providing the kind of representation that is not penny-wise and dollar-foolish because we provide representation at the start of the case and during the trial of the case that does not require that we spend a lot of time on post-conviction appeals because we are doing the kind of job that needs to be done. It is also my experience, as the immediate past Chair of the Criminal Justice Section, that counsel fees that are being paid are a disgrace. And what it is doing, it is driving from the practice of criminal defense those practicers who are dedicated and competent and able to provide at least the same level of 104 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 representation that the Defender Association does to poor and largely minority citizens of Philadelphia. I cannot stand by and see this happen to private counsel. I am not looking for more business; we have more than enough business at the Defender Association and more than enough to do in terms of providing compensation to our staff and representation to our clients, but this situation has been going downhill over the last few years, and certainly over the last two years, so that good people -- and you see Danny Alva and you see George Newman, but let me tell you, they don't take court appointments because they cannot forward to do it, and they are two of the best criminal defense attorneys in the City. The disparity between the resources available to the prosecution and to the Commonwealth have become enormous in this city, and this city is becoming second-rate in terms of what it provides to counsel for the poor. And it's simply a matter of fairness. Poor people who are given counsel deserve the right to have counsel that is compensated at a 105 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 level that they are able -- able to provide the kind of representation that they know they can do. It's simply a matter of fairness. And I join wholeheartedly in the request for the kind of oversight that Council must provide to this issue because the courts have been unwilling to do it. And I ask that you really seriously intervene in this matter and study it, as you are doing, and take a serious look at what is happening because legal representation for the poor is being eroded as a kind of cornerstone right of the Constitution that is provided for people.
And I know that you care, or you wouldn't be doing this, so please, please take a look at this situation, and see what you can do to rectify it.
My name is Tom Purl, and I'm a private attorney. I'm not affiliated with 106 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 anybody except my own office. I have been doing this job now in Dependency Court. I only work in Dependency Court primarily exclusively for the last nine years. When I graduated from law school, that's where I started. I've given a copy of my statement to the whole Council. There's a couple of numbers in there I want to point out to the Council this morning. Last year, in 1997, there was 2,300 petitions filed in Dependency Court. That number is on track for this year. As of May the 1st, there were 810 filed. If you do the math, it's going to come out to about 2400, so it's about the same number. What is open in the Department of Human Services is there is 23,000 to 24,000 kids that are under the supervision -- and that's not the correct word, but for right now I'm going to use "supervision" -- of the Department of Human Services. Now, 12,000 to 13,000 of those children are reported as abused or have significant contact with the Department of Human Services. Social workers go to those homes for those 12 to 13,000, they talk to the parents, and 107 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the parents agree to accept services, so those 12 or 13,000 are not involved in the court system whatsoever, but the Department of Human Services is giving the families services, and the children are remaining at home. That remains 11,000 children. There are 11,000 children in the City of Philadelphia that are directly court-involved. Of that 11,000, 8,000 of them are in placement; they are not with their parents, they're in foster homes, different types of agencies. That means 3,000 are with their parents and receiving services and in the court system. Now, those 11,000 that are receiving services and involved in the court system, they have to go to court every year twice a year. Every six months, by law, they're mandated for that family to appear in front of a judge. It could be more often than that; it could be as many as every 30 days or every 60 days, depending on the nature of what's happening with that particular family. In 1996, there was approximately 255 attorneys taking court-appointed dependency 108 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 cases. As of May 15, 1998, months later, that list had dwindled down to 66 attorneys. There are only 66 attorneys in the whole City of Philadelphia -- private attorneys I'm referring to -- taking court appointments. Now, we've heard from the Defender Association. She has a cap of 7,700 cases. So of the 11,000 children that have court involvement, the law says those 11,000 children have to have attorneys. The Defender Association gets 7,700 of them. That leaves approximately 3, 300 kids out there that have to have private attorneys. There are two other organizations that take children: one is the Support Center, the other is the Juvenile Justice Center. The majority of the other 3300 that we're referring to now come from private attorneys. When a family goes in front of Family Court, the parents are entitled to have an attorney to represent them. And we're talking about indigent people that cannot afford attorneys. Those attorneys have to be appointed to them. There are two organizations that take 109 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 parents. The first organization is CLS. Mr. Lafferty will address that. The other organization is private attorneys. So we're talking about 3,300 kids that have to have private attorneys and we're talking about 11,000 potential parents -- two parents that have to have attorneys. I'll be the first to admit that there's a lot of those 11,000 cases where there's only a single parent at home; there' no mother, no father, for whatever reason. 2 parents per child, is what it amounts to.
Last year, March the 13th, we were on a -- prior to March the 13th, we were being paid $40 for out-of-court work and $50 an hour for in-court work. That meant that whenever I would go to a child's home, a foster home where the child was in placement, in the evening after he got home from school, I could get paid for visiting that foster home and talking to that foster parent and visiting with that child. Last year, March the 13th, a draconian, Machiavellian type of cut was put in place that is unbelievable. They cut it to $300. For one year, 110 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 I get $300 -- not per child -- per family. If I have nine children -- and I have a case with nine children -- I get $300 for those nine children for the whole year. I get one more $150 payment for those nine children. Now, these nine children are not going home tomorrow. They're going to be in the system for seven or eight years. I've got cases that I got appointed to in 1989, when I graduated from law school, that are still open today, still active, in front of the court system. I've only mentioned the court involvement. Mandated along with the court involvement are two mandatory meetings that you have to attend every year with the Department of Human Services. " In addition to the family service plan, if the child is in placement with an agency or if the child's involved with the court, there has to be what's called "an ISP" -- that's an individual service plan. Now, let's take that case with nine 111 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 children. I can do the family service plan for those nine children at one time. I can sit there with the social workers and work all nine children. But each one of those children has to have an individual plan developed for that child. And I have to go to those nine separate meetings, all for that $300 for the course of the year. I'm fortunate. The reason I'm still on the list is I'm retired military and I've got a retirement pay that I can fall back on. The attorneys that are dropping off the list are saying they can't forward to do it anymore, and it's not adequate representation. The cases, as Danny pointed out, the attorneys are coming on the list, they're getting a working practice, and once their practice is up and running, they're saying I can't do this anymore. We sit here and we talk about all the things we want to do for the children, all the things we want to do so that the children are taken care of. And every time, the funding aspect of taking care of the children is cut and slashed. 112 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 People want to know how come we've got kids killing kids, taking guns into playgrounds and things of that nature. We're losing services. And I think that until we come to grips with understanding and doing something for this, we're going to continue to have kids killing kids, and we've got to stop it. And one of the best ways to stop it is to make sure that the funding is up front, the money's there, it's available so that they can get adequate representation, so that the counselors and the attorneys can get with the children and can get the services the children need. I'm talking about the psychological evaluations, the psychiatric help, and all the different functions they need. We have a child the other day who caught with a gun in the school. This child was expelled from school -- he was expelled, not suspended, expelled. The child's 13 years old. That child can not go into public school, cannot apply for reinstatement for public school for one full year. That means, starting in September, the 113 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Department of Human Services is going to have to find a place to educate this child. Somewhere in the system, this kid's going to be going private school somewhere that's going to be paid for.
And we're hoping that the school and the environment we get for this child will be enough that he can understand what went wrong. But we have cases like that, and we've got to do something to get them the help to understand that this is not appropriate behavior. And I think one of the best ways to get started is to make sure that the attorneys are paid up front for their services so that they can go out and they can go to these places and they can attend these meetings and they can talk to these children to do the things to get these children back on the right track.
Thank you very much. I'm just wondering, in the political world today, it is a proud badge of showing that you're a good American to proclaim, "I am a fiscal conservative." And if there's anybody here that uses that title and feels proud, I'd like to have them come up here and give me an answer. Does 114 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 being a fiscal conservative mean we fund or we don't fund the situation that you've just described.
In my opinion, we fund it. And the reason we fund it is because if we don't, those children are going to be put into the criminal justice system when they get older, we're going to be spending more money down the line, and it's going to cost us a hell of a lot more in the long run than it is to give some attorneys some money so that he could get the services and get the help that he needs right now. And so I think we fund up front because, as Danny was stating, with the criminals, you're paying more money in the criminal system because of the petitions for ineffective assistance of counsel in the back end than if you paid the money up front so the attorneys could do a good job or get the adequate investigation necessary to do the adequate job up front. And I think that if you don't fund up front, you come up ass-end back-loading it every time.
I'm going to ask 115 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 that you be the keynote speaker at the next Convention of Fiscal Conservatives of America.
We need that kind of thinking. I think you're absolutely right, but that's -- what you're talking about is considered, you know, one of these good causes, social causes that there's no room for in the budget. And it's obviously --
One of the things in my statement is I talked about pro bono. There is not an attorney over in the Dependency Court that has not taken pro bono cases and done them without putting any money in. I'll give you the example in my statement. It's that two years ago, at 3 o'clock in the afternoon, a child was brought into court because he refused to get on an airplane to go to Florida to a special placement that the Department of Human Services had arranged for him. He 116 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 refused to get on the airplane with a female social worker. The woman brought him back to court, and the judge said, What are we going to do? The worker said, We can't anybody from my office. I said, Judge, I'll get him on the plane. And the judge said take him. So Friday afternoon, on two hours' notice, I took this kid to Florida. Because of bad weather, we missed our flight in Charlotte, and I wound up spending the night in Charlotte in a hotel with this kid. I didn't sleep that night. He was going down to Florida because he had pulled a knife on his grandmother and because he was having a sexual identity problem as to where he was and what he was in life. I didn't sleep that night. I got up the next morning, got him to Florida. And on the way back, I got bumped on my return flight. So what was supposed to take a trip to Florida and a trip back, I was supposed to be back Friday night. I didn't get back till 11 o'clock Saturday. I never asked for compensation for that, I never asked for reimbursement of any 117 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 of the expenses, and I lost a night of sleep on that. I didn't want the kid to lose the bed down in Florida and the special placement for him. And there's not an attorney sitting over there that hasn't done the same thing on any of these dependent cases. We all take them pro bono. Parents come in there and they come in there with R.O.'s -- restraining orders filed on them. And we can prove at that first hearing that it's a bogus and it's a nothing-to-do R.O. I'll take the case, I win it, I get it thrown out of court, I get the kid back home with his mother and father, and I never bother putting in a bill for that. And everybody has done that. So we just want to get compensated for what we do.
Yes, sir. My name's Jim Lafferty. I'm an attorney with Community Legal Services, and we represent parents and the dependency cases involved with DHS and Family Court. And with our contract with the City, we 118 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 represent parents, but we can only represent a certain percentage of the parents in court. And the court depends on court-appointed counsel to represent the others parents in court. I would like to reiterate what Mr. Purl and the other witnesses have already testified to about the struggles that court-appointed counsel have in these cases, especially with the current fee system that's in place. It has driven away many of the attorneys who previously practiced in this court, and so there are very few attorneys left who are still doing these kinds of cases to represent parents and children. Under the standards established by the American Bar Association involving these types of cases, there are certain specific types of activities that an attorney, at a minimum, must do in order to adequately represent either a parent or a child in a dependency case in Family Court. With the current compensation fee for private counsel, these attorneys are just not able to do the tasks that are required. I won't reiterate everything that Mr. Purl said, certainly but at a minimum, it requires going to court. It 119 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 means going to these meetings at DHS, the family service plan meetings. It also means a lot of other things if the attorney is going to do his or her job properly for a client. For example, many of the parents who are in court -- indeed, most of the parents -- have psychiatric problems. They either suffer from some form of mental illness or an addiction problem. In order to get their children back, they need to get into a treatment program but because of the current system with managed care, it's very difficult for parents to get to the type of treatment program that they need. That requires a fairly highly-sophisticated level of advocacy by the advocate, by the attorney, in order to get the right treatment either for the parent or for the child in order to get the right service so that the family can be re-unified. That takes an extraordinarily long amount of time and is not done by simply appearing in court when the case comes into court. To do the job properly, it takes a tremendous amount of time. And with the flat-fee schedule that now 120 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 exists for court-appointed counsel, that just is impossible, it just cannot be done. And so parents and children are not adequately represented because of the restrictions of the fee system. And I reiterate what Mr. Purl said -- many of the attorneys go to extraordinary lengths in terms of work that they do for which they're not compensated, but it just isn't enough. And poor people are hurt in Philadelphia because of this system. And in terms of the fiscal issues involved in it, Mr. Cohen, I want to reiterate one thing, and that is that it's not something that the money isn't spent on counsel fees to adequately represent counsel in these kind of cases, the total cost actually increases in another respect, and that is this: When a child is being removed from the home by DHS and is placed in foster care, there are extraordinary costs that the government ends up paying for that. The average child in foster care costs about $700 a month, when you include the subsidy for the foster parent, for the cost of 121 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 social workers, and the like. If you have a child that's medically needy, that can cost up to several thousand dollars every month that is paid for the foster care system. The child welfare system is an extraordinarily large system, but it's money that's spend on social services when a child has been removed from the home.
If counsel were adequately compensated in these types of cases, it could significantly cut the costs of foster care placement by advocating on behalf of parents and children to get the services that are needed so that families can remain stable, remain at home, or bring children back home with the parent; so that in the long run, the total cost that the government has to pay ends up being significantly less. So it's clearly a case of being penny-wise and pound-foolish in the way in which the money is allocated in the overall sense of this. So we strongly advocate whatever City Council can do, the City can do to see that counsel in these cases are adequately compensated. 122 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Thank you very much. I think that Ellen Greenlee, when she says "disgraceful" as her characterization of the flat-fee system in the child advocacy cases is very accurate. It just doesn't make any sense at all. Did the court in the Family Court system have anything to say about that? Or was that a fee opposed by other levels of court?
Let me address that. Judge Bonavitacola got up here, and he said that the court allowed three individuals that were appointed by the President of the Bar Association. One of the three individuals is an attorney that practices in Dependency Court. When those meetings were taking place, myself -- I asked him many times during the course of those meetings what was happening. And he said, "We're under a secrecy, we can't tell you what's going on." That representative from the Dependency Bar was not allowed to tell us what was going on. In speaking to the individual later, he 123 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 also said that it was a done deal, that any input that he may have had that he might have had was not going to be looked, was not going to be addressed, was not going to even be looked at. We had, when Judge Sylvester was the administrative judge in the Dependency Court, we were in there negotiating on changing the fee structure. The attorneys know that there's a problem. In the last three years, we have taken a 10 percent and a 5 percent cut in the fees that are due us. That's also in my statement if you read it. We agreed and we knew that there was a budget constraint. The problem is that the attorneys have never been adequately budgeted for in any budget. Look at the numbers that were in that other chart and you'll see that. So the City came to us, not just dependency attorneys, but also the criminal attorneys. The City came to us and said, We want to take a 10 percent cut so that we can get closer to our budget. We looked at it, and said, Yeah, yeah, yeah. And we said okay, we would do it. About 18 months later -- 18 months? -- 124 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 about 18 months, 12 to 18 months, they came back and they said, Okay, we want a percent cut. We 4 took that vote to the Bar Association and we had a 5 vote on it. The vote narrowly passed, to be quite candid. It was a very close vote, but it passed and we agreed to 5 percent reduction. So twice they have come back. They haven't funded for the attorneys, they've asked to us take cuts and we've taken the cuts. When Judge Sylvester was the administrative judge, we were looking at doing some things and trying to revise what was being done, but we were never looking at $300. Not a kid -- that's $300 a family. And we get one more time $150. Now, if you talk to Judge Bonavitacola and the other people, they're going to say, If it's extraordinary, you can put in for it. Yes, if it's extraordinary, we can put in for it, but that is where I agree with what Danny was saying. We need somebody else to be looking at this because the administrative judge is going to be cutting and not paying those extraordinary -- that's my gut feeling and reaction; they're not 125 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 going to be paying for it.
Well, if the Bar maintains its interest in this subject matter, I think the City Council will. And I want to thank the panel, and we'd like to hear the other witnesses. Thank you very much for coming. I think you made a very real contribution.
Will the representatives of the Hispanic Bar Association come forward? Is Stan Krakower here? If you can join at the table. Katherine Miller, Betsy Sternthal, and Joyce Eubanks. That completes the list of the names that I have. I will, when this panel finishes, ask if there's anyone else who wishes to be heard. And at that time, anybody who has not been called, who wants to speak as to any subject, will be invited to do so. Who's going to be the chief speaker for the Hispanic Bar Association?
Good afternoon, Councilman. My name is Will Gonzales, and I'll 126 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 start out for the HPA.
Our president was here but he had to leave. He was here most of the morning but had to go to a meeting and he's coming back, so I'll just start off. I'm a Board Member of the Hispanic Bar Association and I also am the Executive Director of the Police Barrio Relations Project. The Barrio Project is a community-based nonprofit organization that is seeking to improve relations between the Latino community and the police by addressing police misconduct. I want to thank you again for the opportunity. I want to point out that with me also is Jeremy Gonzalez Ibrahim and Nina Padilla and they will share their thoughts on this matter. We applaud your efforts to investigate the inadequacy of the mechanism that funds the appointed legal representation of indigent defendants and dependent children. It is critical that this mechanism be improved. Every day that we fail to address the failure of the mechanism, we widen the chasm between citizens represented by 127 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 private counsel and citizens represented by court-appointed attorneys. For the Latino community, this chasm is deepest because the court-appointed -- the failures of the court-appointed process in terms of compensating our attorneys has a discriminatory impact on us because the majority of individuals from our community who end up before courts are represented by either public defenders or by court-appointed counsel. It also has a big impact because if it is difficult for a poor person to receive justice under such circumstances, it is even more for us, when you combine the elements of a different language and a different culture. It is a great challenge for court-appointed attorneys who do not speak Spanish to provide adequate representation. Just talking about the language barrier, every time that that attorney would need to meet with someone, they would need to have an interpreter. That many times is not provided for, and so the attorney has to do all types of improvisations to make sure that he or she can communicate with the client. 128 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 One thing we want to make clear -- we want to present the community view of this -- is that this is not about defending criminals, you know, or giving more money to the Bar lawyers. You know, this is a deep issue that touches almost everyone in our community, and specifically when you look at the whole issues of police corruption, etc. And although there have been some steps taken by the new Police Commissioner to address that, that is still a real problem, and so it is not inconceivable that many innocent people can end up in this justice system and then end up with convictions because the court system and the court-appointed system did not work as well as it should. And by saying that it's not working as well as it should, I mean no disrespect to those attorneys who are doing a good job because we are sworn to uphold that professional responsibility. So even though at an individual case, it might work, at the macro level, as a social policy level, it doesn't. So, you know, we're here to try to 129 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 support your efforts to look at the idea of creating a separate line item of making sure that there is communication between the judges and the attorneys working on these issues so that we can ensure that the justice system does not reach such a depth of disparity that justice is soley for those who can afford it. And we want to make sure that, you know, everyone can get access to justice. That is so key, especially for our community where there are especially so many challenges in terms of public safety. Because if people lose respect for the courts, then lose they respect for the law, and then that just continues us down to a path of people taking matters into their own hands, and increasing chaos.
I want to pass the mike now to Jeremy Gonzalez Ibrahim, someone who practices in this area, and he can share more thoughts about this.
Good afternoon, Councilman. I serve on the Board of the Council Spanish Speaking Organizations. I'm also a commissioner on the Philadelphia Commission on 130 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Human Relations. I have been an assistant district attorney here in Philadelphia. In 1991, I began taking court appointments -- not only court appointments in the State and the county system of Philadelphia, but also in the federal system. I've heard Judge Bonavitacola speak and I've heard the other speakers speak, and the one viewpoint that I would offer to City Council is the question as to whether or not we're going to put a price on justice. I understand that there are budgetary concerns, and we have to be aware of the fiscal crisis within Philadelphia and so forth. But in terms of justice, and as an attorney who's sworn to represent individuals, quite frankly, I cannot be concerned with that. Whether or not someone privately retains me or I am court-appointed, the same case takes the same amount of time to prepare, and I do the same job for both cases. That's the only way that I can sleep at night and many other attorneys that do this type of work can sleep at night is by doing the same job. 131 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 If you look at the way the federal system operates, however, attorneys are allowed to bill hourly. The trial judge, just as in the City system, reviews those bills. The judges expect the attorneys to tell the truth. It appeared from some of the testimony here today that there was a concern that attorneys were being dishonest. And I suggest that if that's a concern that the court system has, they have to find a way to adjust that or review that rather than to presume that that's always going to happen. In the federal system, at the end of the case, you submit your bill, the judges approve it, and the judges will pay bills. Recently, a federal judge approved a criminal justice panel attorney's bill in the area of a quarter of a million dollars, and it was a well-publicized case. It was approved because the firm that did the work provided documentation and proof that the depositions and the investigations that were done were necessary, that the research was necessary for the case. It didn't matter what the 132 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 outcome was going to be. Unfortunately, what I have seen, both from when I was a prosecutor and as a defense attorney, is that the discern has become how much money can we afford to spend for justice? And, unfortunately, what that's doing, particularly to the Latino community, is there are people who are innocent of crimes -- because innocence is not the issue anymore; the issue is how much can we afford to spend? The people who are innocent of crimes are people that are going to go to prison because attorneys do not have adequate resources to represent them. The reason I emphasize Latino is because it certainly -- everyone suffers from that, but when you have an individual that does not speak the English language, when you have an individual that is not used to the culture of the United States of America -- and more and more, there are people not only from Puerto Rico, but people from Guatemala, from Colombia, from other South American countries, who live in societies that draconian. When they come to the United States, 133 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 they believe that that's the way our Constitution is. So to educate them as to what their rights are in and of itself is a chore. I am Spanish- speaking, so I'm able to do it a lot easier than someone who is not Spanish-speaking. But I will tell you, in the federal system, for instance, there is a paucity of bilingual attorneys. And that same paucity exists in the State system.
So when you have a situation of a non-Spanish-speaking attorney being appointed -- and the appointments in the State system, unlike the federal system where they can try to appoint Spanish-speaking attorneys to Spanish-only- speaking clients, it's done on such a random basis that truly, a defendant is playing Russian roulette with their liberty and with justice when they go through the system. I know that this panel has heard -- City Council has heard many people who have spoken before me. I have prepared written statements, but as I read them, many of these issues have already been addressed. I will probably just submit this in writing. And I hope that the information that 134 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 I'm able to provide from a practical, real point of view, that I see every day and that the attorneys that accept court appointments, whether it's dependent or criminal, see every day, that it's a point of view that perhaps City Council will consider. Thank you.
Good morning. My name is Nina Wright-Padilla. I'm an attorney in Philadelphia, in private practice. My husband is also here seated in the galley over there, Edward Wright. I've been accepting court appointments since 1994. However, this year, since the system was changed, my husband and I both decided that we would no longer handle court-appointed cases. The reason why is -- I'm going to give a specific example as to how it relates to our practice. 135 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Invariably, we need to file pretrial motions on behalf of our clients. And in preparing the motions, time is required, research is required, possibly amendments to the motions upon receipt of notes of testimony, which are typically not available until after the deadlines that motions are to be filed. Once they're filed and amended and the argument date is scheduled, all of the time that we spend in court arguing and preparing and researching is not compensated for. However, all of this is very necessary in the proper representation of our clients. The resources are inadequate to provide competent representation. Specifically as it relates to Latinos, in my opinion, there aren't enough interpreters available. I see day in and day out not only Spanish-speaking but other criminal defendants who need representation, who cannot speak English. And interpreters are not available. Oftentimes they are busy in other courtrooms, and the interpreters actually put time constraints on the attorney while they're conversing with their 136 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 clients. There are also limits as to what they can discuss with their clients, which is incredibly interfering with the representation that an attorney can provide. One final point I'd like to make is that in our practice, because I'm able to speak Spanish, I'm able to put on an index card for my husband, when Spanish-seeking clients call so that he can we'd some basic phrases and converse with them very scantily over the phone. However, I often wonder how non-Spanish speaking attorneys handle that situation when someone calls the office. If you're handling a court-appointed case and you don't speak Spanish or whatever language and your client calls, what do they do? And I think that is a specific example that I can provide as to the inadequate resources that the courts are not providing. Thank you.
I need for you to 137 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 speak more directly into the microphone so that everyone can hear you. Everything that takes place at a Council hearing is automatically sent over the wires to all the newspapers and TV stations as well as many offices in City Hall.
Okay, okay. My name is Katherine Miller. And I am Chair of the Dependency Committee of the Philadelphia Bar Association's Family Law Section. I am also Director of the Parents with HIV and AIDS Project at the AIDS Law Project of Pennsylvania. In that capacity, I represent indigent parents with HIV and AIDS and family law matters, including dependency. I also used to be attorney in the Community Legal Services in the Dependency Project. So these issues are near and dear to my heart, as they have been to all the panelists that you've heard previously. What I wanted to talk about so that I'm not reiterating a lot of what you heard. You heard from Tom Purl, especially, the statistics and the fact that if we don't deal with this on 138 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the front end, we are going to deal with it on the back end. And that was very compelling, and I concur completely concretely. What I'd like to do is how you concretely what the work is. And I'm sorry that Councilman Nutter isn't here because to answer his question from this morning -- What is it that takes so much time and so much money, and why are these fees so disgraceful, as Miss Greenlee put it?
We're going to put in a special call to Councilman Nutter to see if he can get back into the Council chambers. At this time of the year, Councilmembers are torn into pieces trying to complete our business before the session's end.
There are, first of all, the body of law that makes up abuse and neglect law. I'm not going to talk about criminal law because I don't practice in the criminal arena. There are several laws, starting with the Adoption and Safe Families Act. That's the 139 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 federal law which has created our entire child welfare system. The Adoption and Safe Families Act is an amendment to the Adoption Assistance and Child Welfare Act, which was promulgated in 1980. This amendment was passed on November 17, 1997, and it's wreaking a lot of havoc in states across America. It's really changed a lot of dependency practice, although it has not changed in any matter the intensiveness that is required to represent parents or children in the system. The next are the State Acts in Pennsylvania. It's the Juvenile Act, which is 42 PACS, Section 6301, et sequence; and The Child Protective Services Law, which is PACS, also 17 Section 6301, et sequence. 18 In addition are the administrative 19 regulations which, again, in Pennsylvania, is 55 20 PA Code, Section 31-30, et sequence. 21 And, finally, there is what's known as 22 The DHS Operations Manual, which doesn't have the 23 force of law, but it is the agency manual which guides agency decisions regarding families. One, two, three, four, five bodies of 140 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 law. In order to competently represent parents and children in this system, each of these documents and statutes and rules and regulations must be known cold. In addition, there are local rules in Philadelphia which guide Philadelphia practice. So, as you can imagine, just being a brand-new attorney starting out, you have your mouth full. So now, just to summarily go over a typical dependency case that all of these rules guide. We'll go through a time line. Typical dependency. A hotline report is called in. An intake worker receives the report and determines whether the case is an immediate emergency or only a somewhat emergency, okay? If it's an immediate emergency, they must, by law, interview the child immediately. In other words, call the cops, meet the cops at the address, intend to take the child away. If's only a somewhat emergency, they have 24 hours to investigate the report. This is called "a CPS Report," okay? 141 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 (Councilman Nutter returns to chambers.)
Thank you for coming, Councilman Nutter. I wanted to answer your question this morning about what it takes to do these cases and so I'm going through the time line of a typical dependency case.
Okay. I was concerned you might issue a subpoena or something so I figured I should just come down. (Laughter.)
No, no, no not at all. So a hotline report is called in. The Department of Human Services has hours to make 16 an investigation. 17 If the Department of Human Services 18 determines, upon making that investigation that 19 the child is in imminent risk of danger, they have 20 the right to call by hotline any hour of the day, 21 24 hours a day, an emergency judge and obtain an 22 ex parte restraining order and remove the child. 23 And that restraining order is, as I 24 stated, ex parte. So at this point, the parents and the child have no counsel, no access to 142 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 counsel, no advice, no ability to combat the Department of Human Services' determination that the child needs to be removed immediately.
And are you in private practice, or are you working for an agency?
No, I'm at the AIDS Law Project of Pennsylvania. I'm the Director of the Parents with HIV and AIDS Project. And in that capacity, I represent indigent parents with HIV and AIDS in many family law matters, including dependency.
If you get to a point where your services or the organization for which you work gets into the act, let us know.
At what stage. 143 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Okay. So, at this point, there are no attorneys. Now the department has 72 hours to continue their investigation, and the case is called into court. The child is in foster caring during this time period. The parents nor child do not have access to each other or to counsel. They get called into court for the detention hearing. The purpose of the detention hearing is to establish whether the child would be at imminent risk of danger if they were returned to the parent. This is where children and parents get appointed counsel. On this same day, the parents and the children, their attorneys, and the attorney for the City and the social workers all gather together and meet for the first time and discuss what's to happen next. As you can well imagine, it's a fairly tense and difficult day because they haven't met each other, the parents and the child have been separated for 72 hours or perhaps longer, and they're very concerned about what's going on. They have an option at this point to 144 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 put on a hearing. And if they do, counsel have to spend all day calling around to neighbors and friends trying to get them to come to court that day so that they can put on their witnesses. This negotiations process is exhausting and long and takes most of the day. " 14 The purpose of the Dependent Petition 15 is to give notice, actual notice of each of the 16 specific allegations against the parent as to why 17 the child needs to remain in care and is 18 considered dependent. 19 Within 10 days of the filing of that 20 petition, the adjudicatory hearing occurs. The 21 purpose of that hearing is to determine whether 22 the children are without proper parental care and 23 control. This hearing is perhaps the most 24 important hearing in the whole process. Until this point, all of the 145 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 evidentiary standards apply. Hearsay is not admissible. Due process is applicable. All of the allegations that are discussed in this hearing can only be within the scope of the petition and not beyond it. After this hearing, temporary legal custody, if the parents lose, transfers to the Department of Human Services. The evidentiary standards are lowered so that hearsay is allowed. And the standard, rather than clear and convincing, becomes one of best interests. So that during this ten days, the role of counsel is absolutely crucial. When I was at Community Legal Services -- and I had about 50 of these cases on my case load -- I usually pulled all-nighters every night of these 10 days. I had to get medical records, I had to interview witnesses, I had to get experts -- and all of that within 10 days. As you can well imagine, most hospitals not be willing to release documents, whether you have a Release of Information form or not within 10 days so I had to go physically to the hospital, beg them, plead with them, offer them my firstborn 146 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 child, whatever it took, to get the documents that we needed to prove that my clients were innocent because many of them are. Because one thing that we have to remember -- we heard about this from the Hispanic Bar Association, we heard about this this morning in the criminal arena. These families, many, many, many of them are people who are the products of poverty and racism. They're not all abusive and neglectful. And those that are can be rehabilitated with appropriate representation and services, but in order to get the services, it requires advocacy. That's something else that can happen at either this hearing or this hearing. The attorney can make an agreement that the Department of Human Services will arrange for an inpatient rehabilitation program that allows for a mother and her children. And that the children will go with the mother as soon as she completes her initial 30-day blackout period.
In order for that to happen, however, as Jim Lafferty testified, the Department of Human Services telephoned two or three times a day to 147 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 ensure that they have telephoned all of the inpatient rehabilitation centers in Philadelphia that will accept our client's insurance. You must also telephone the Community and Behavioral Health Organization to make sure that they'll pick up whatever the insurance won't cover. You also invariably have to fight somewhere in there with the Department of Public Welfare who's cut off medical assistance because of one bureaucratic snafu or another. Then you also have to arrange for transportation for the parent to get to the inpatient treatment program. There's a very good mother-child treatment program in Norristown. Most of our indigent clients do not have money to get to Norristown, so you have to make sure that the Department of Human Services worker goes out to the home, picks up the mother, and takes her to Norristown. That's something that sounds simple but is something that, in fact, requires two or three phone calls a day. Because the Department of Human Services workers are underfunded and overworked, and they themselves are often not at 148 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 their phones, not at their desks; they're out investigating emergencies and so they're not available to pick up our clients and take them to Norristown.
You're also subject to the compensation, the guaranteed fee system?
No, I am not, because I work for a nonprofit agency, so my salary is paid by Pew Charitable Trusts. I do not take court-appointed fees. But I'm here testifying because I'm Chair of the Bar Association Committee, because I'm committed to this work, and because I agree, as somebody with experience in this area, that attorneys who are getting paid by the fee system need to be adequately compensated to do this work.
All right, okay, thank you. 149 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214
Another thing that frequently happens is the Department of Human Services -- again, usually because of overwork and underpay -- do not file these petitions timely. When that happens, the court no longer has jurisdiction over the case. You then have to, in addition to preparing for this hearing, you have to prepare a petition for immediate release of the child. Because again, there's no way to defend against a petition that you don't have in front of you, so you have to prepare motions and witnesses simultaneously. The next hearing is called "the disposition hearing." That can happen either on the same day as the adjudicatory or within 18 days, and it's the hearing to determine the 19 physical placement of the child. There are 20 children who are adjudicated dependent who are, nevertheless, sent back home to live with their parents, with services that are put in place. The standard at this hearing is again, as I stated, best interests. So it's a much lower standard and so thee's a lot of proof that needs 150 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 to be gathered if you're representing parents or children.
Well, is what you're saying is that if there is this flat fee of $350 and then there's something about maybe an additional fee of 150 -- it wasn't quite clear to me just when that kicked in -- that all of these things would have to be done --
Per family, excuse me, that's correct. Another thing that's going on here, and I'm glad that you raised that question, because part of Tom is talking about, about the nine children, the children are separated from their parents and frequently separated from each other because the foster homes aren't capable of taking in more or three children, especially if one of the children has special needs. And they are frequently traumatized, 151 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 understandably. I had a case where children were taken away from the bar of the court, and the social worker came into my office the next day and said that they had stayed up all night sobbing hysterically, they were absolutely "un-calm-down-able." They wouldn't eat, they would barely drink any water. They were crying all night, "I want my mommy, I want my mommy, I want my mommy." They need counseling. And that, again, is another bureaucratic battle. You have to call the insurance company, you have to call the Department of Human Services, you have to set up the counseling, you have to make sure the counseling is somewhere where --
The only other people who would be doing that would be Department of Human Services, who can't possibly do it because of 152 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 their case load numbers. But it is an appropriate role for the children's attorney to ensure that the children are obtaining all of the services that they need and deserve and are entitled to under the system. The next stage of these proceedings are disposition or review hearings. I'm just going to drop the time line to down here. Disposition or review hearings happen every six months under current law, and there are supposed to be three of them. The purpose of these hearings is to determine why the case is still open; whether the child, if they are placed, still needs to remain in placement; whether the child, if at home, is okay and safe at home so that, therefore, the case can be closed. Unfortunately, for a variety of complex readings, many of the cases stay open much longer than these three six-month hearings. At this hearing, at this last -- what is called "the 18-month hearing," there's supposed to be a determination as to whether the case can be closed, the child should be adopted, or the case 153 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 should be in the long-term placement status, which means you don't need to do a lot of this intensive work. Frequently, however, because the children are so troubled and need so many services and many of their services backfire, therapists who finally establish a relationship of trust get a new job and leave. Children who are HIV-positive, who haven't exhibited any symptoms become symptomatic, need intensive medical care, and need grieve-and-loss counseling. Siblings who have been separated for long periods of time start to see one another again and go through issues of grief and loss regarding their biological parents.
I'd love to have you continue on, but this hearing has to adjourn in 20 minutes.
And there's some people that yet have to be heard. I think you've made your point that 154 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 there's an awful lot of work that has to be done and that a flat fee in the amounts we're talking about make no sense under these circumstances.
My name is Betsy Sternthal. Good afternoon. I'm an attorney here in Philadelphia who serves as court-appointed counsel in Dependent Court, representing children in neglect and abuse case, and oftentimes representing indigent accused parents. I'm a member of the Family Law Section, Dependent Committee, Mediation Committee, and the Criminal Justice Section. When an attorney is appointed to represent a child, the attorney must be diligent and dedicated to guiding that child through the court process, as you've seen, and making certain that each agency and Human Service Department involved in the case meets the needs of that child. This involves, as you've heard this morning, the preparation of the child's case for trial, including our interviewing witnesses, 155 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 preparing motions, home visits, and meetings. The stakes are high. We are dealing with the ongoing safety of helpless children in our city oftentimes caught in situations which are beyond their comprehension and their control. I recently served as a child advocate for a medical neglect case where the adjudicatory hearing took two full trial days and included pretrial work such as preparation of police witnesses, the medical examiner, and physician expert witnesses. Prior to the two days of trial, there were pretrial hearings on motions filed and meetings with co-counsel and preparation of testimony. As another example, I'm often appointed to represent teenage mothers, and I often serve a dual role -- as counsel to the teenager as a dependent minor, and as counsel to that child as mother to her child who is dependent. Teen mothers call me constantly regarding their legal rights as to their children, questions on emancipation, mother-child programs in the high schools, and placement when there are no 25 appropriate family members who can provide for 156 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 them and their child. You've heard about the American Bar Association's standards this morning. They reflect that participation and preparation by the child advocate attorney in every phase of the Dependent Court process is vital, from pleadings to trial to permanency planning for that child. This may include hearings regarding the termination of parental rights. A recent termination hearing is a neglect case where I represented four siblings lasted three full trial days. Representing children through the appellate process is also mandated for attorneys representing children. The American Bar Association states that counsel must be adequately compensated for these cases at a level reflecting their complexity for both in- and out-of-court work. Representing children and indigent accused parents in our city indispensable work, and they deserve the same quality representation as you or I. Because the funding for court-appointed counsel is inadequate, many experienced attorneys, 157 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 my colleagues, as you've heard today, have had to drop off the appointment list, as they cannot support themselves doing this work. I love this work, and I've invested many years of my practice representing children and indigent parents. Children and parents are losing quality representation. I do not want to become one of those statistics, and I respectfully request City Council support for the resolution before you today. Thank you.
Thank you very much. Mr. Krakower and then Miss Eubanks.
My name is Stanley Krakower. I'm a Philadelphia lawyer. Among other things, I represent poor people who are accused of crimes. Mr. Cohen -- Councilman Cohen, Councilman Nutter, other Councilmen who may hear my voice, on arrest one of your constituents has a right to a lawyer. And if he can't afford a lawyer, one will be appointed for him. Every one of your constituents hears 158 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 those words in movies and on television every single day, probably more than once a day. Those words are repeated, they become a mantra in the American system of justice and in the perception of the American system of just by every one of your constituents. Let me say that one more time: On arrest, you have the right to a lawyer. And if I can't forward a lawyer, one will be appointed for you. What does that mean? Does it mean that the lawyer who will be appointed for you will be unable to adequately meet the challenge that's presented by the prosecution? Does it mean he will have the inability and lack of resources to defend the rights of that citizen as well as even the Defenders Office can do? What implications, what assumptions do the constituents have when they hear those words, "If you can't forward a lawyer, one will be appointed for you"? And I think that in addressing the resolution that's before Council now, we have to look at it in terms of the adequacy of the competition for dollars with the Police Department 159 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 and the Prosecutor's Office. We heard President Judge Bonavitacola tell us this morning that $480,000 had been spent on investigators and witnesses for a defense in certain cases through May this year. As Councilman Nutter pointed out, I think that number is meaningless if you don't have a comparison to what was spent by the prosecution. Remember, when the prosecution hires investigators, among those investigators are all the officers and detectives of the Philadelphia Police Department as well as special investigators from the District Attorney's Office. And if those same cases entailed the expenditure of $2 million to prosecute and convict those same defendants, then $480,000 is really not a lot of money at all. We heard, and I ask the Council to consider, the President Judge's consideration of other financing methods drawn from other counties in Pennsylvania. And I ask that you consider in determining whether any of those systems are adequate or whether the President Judge's systems are adequate. Comparison must be made with, for 160 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 example, the costs of maintaining an office in Philadelphia as compared to some outside county. I maintain an office in Philadelphia, this is where I've practiced for almost 30 years, this is where my clients are. If I close that office and instead opened an office in Bucks County or Chester County or Delaware County, I know I could do it for less money. The question is, is that what I want to do because the fees are of a different caliber? I think we also have to consider the public perception of justice and law enforcement. We have, in the years that I've been in practice, seen the days where the concept of a negotiated plea has become a dirty word. It's now called "plea bargaining," and it's become something unsavory about plea bargaining in the criminal just system. And I remember the day when it was considered an adequate means to save resources if the defense counsel and the presenting attorney and the defendant could reach an agreement on an adequate resolution of a matter. Often this might entail reducing a charge from a felony to a 161 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 misdemeanor. You know, we often hear about, Is the defendant innocent?
Mr. Krakower, I'd love to have you continue that except that we have minutes left to hear all of the witnesses that 7 remain. 8
All right. I'm going to 12 simply ask that in talking in terms of other fee systems, we take into consideration the policies of the District Attorney's Office in Philadelphia, which affects and impacts what defense lawyers have to do; such as the fact that in homicides cases, you have regularly death-penalty requests that have to be dealt with. And you have a policy against plea negotiates. You have policies of the District Attorney's Office that impact on the amount of time that cases take. And we -- those lawyers who are taking these criminal defense appointments must deal with those, and we ask that you take those into consideration in looking at what is an appropriate 162 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 system and how much funding it would take. And that's all I'm going to offer for now. Thank you.
Thank you for the very pointed observations that the committee will be considering. Miss Eubanks.
Yes, I will. I am Joyce Webb Eubanks, and I am Vice President of the Women's Lawyers Division of the National Bar Association. I am here in that capacity to speak in support of the resolution before this body to conduct a thorough analysis of the issues attendant to providing legal representation for the indigent and dependent children of our city. The United States Supreme Court, the highest and at times the most respected court in our country, more than 30 years ago decided, in the case of Gideon versus Wainright that the principle of equal justice under the law 163 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Constitutionally required the States to provide legal counsel to all persons unable to afford legal reputation. At the heart of this debate between the state of Pennsylvania and our city, shamefully, is whether we are going to respect and obey this fundamental right, this fundamental law of our country and give true meaning to competent and adequate legal representation. There is not one person in this assembly who would express a belief that one charged with a criminal offense should do battle against the State without an attorney. There is not one. Yet each time an attorney is refused the opportunity to hire an investigator, an interpreter, a psychiatrist, or any other expert deemed necessary to adequately represent a person being charged with a crime, that person is effectively doing battle with the State for his very liberties without an attorney. It is fundamental and axiomatic to the right of counsel for the indigent that adequate funding be provided in order to facilitate the 164 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 administration of justice. The Pennsylvania Supreme Court has opined that the State is the body which is ultimately responsible for ensuring that the Sixth Amendment to the Constitution is applicable to all persons, and that responsibility must be ultimately assumed by the State. Unfortunately, there is -- the City of Philadelphia is in a cross fire with the State. City Council, therefore, must ensure that adequate funding is available, City Council must encourage the administration of the courts in Philadelphia, the President Judge, to cooperate, to work with the local Bar to encourage cooperation between the judicial aspects that administer the money and those attorneys that have appeared before the court and those attorneys who represent other attorneys work closely in a cooperative spirit to ensure that justice is imposed and justice is available in all aspects of the citizenry of Philadelphia. I applaud this body for realizing and recognizing the necessity to investigate the inadequacies of the system. That is the least that can be done. 165 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Without, however, adequate funding for the least person, the person least able to afford to purchase or to buy legal services, the principles and interpretations given to the Constitution are only applicable to the wealthy. And it is ultimately the State's responsibility to balance the scales of justice for all of its citizens, not just the wealthy. Thank you very much for the opportunity to address this body.
Thank you. I think the panel has done excellently in bringing to the fore the questions we have before us. Thank you very much for being here. Is there anyone else who wishes to be heard? Mr. Frankel? Any other witnesses can come forward. Mr. Frankel? And right after Mr. Frankel testifies, I will tell you what the thinking of the committee is going to be with respect to the future -- that is the future of the resolution, the action that will be developed. (Larry Frankel comes forward.)
Larry Frankel, 166 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 identify yourself for the record.
My name is Larry Frankel. And I'm the Executive Director of the American Civil Liberties Union of Pennsylvania, and I thank you for the opportunity to present some testimony. ACLU is also strongly committed to upholding Constitutional rights of an indigent defendant to be represented by competent and qualified counsel, and we join with all of the other witnesses here today who have called upon Council, the City and the State to make sure that right is upheld. I want to bring your attention that recently, attorneys in our Pittsburgh office settled a lawsuit that we brought against Allegheny County. In that lawsuit, we claimed that the County was inadequately funding and staffing the Public Defenders Office. We alleged that many people who are accused of committing crimes are being deprived of their constitutional rights to counsel because of the lack of funding and staffing. I attach to my testimony a copy of the expert's report in that case because I think it 167 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 details the kind of deprivations that people suffer, that people who are charged with crimes suffer when there's inadequate funding and staffing for those people. I'm not here to say that those deficiencies exist here within the Philadelphia Public Defender's Office. Fortunately, the City has shown wisdom in properly funding that office.
I know, I know. But unless a method for guaranteeing adequate funding of court-appointed counsel is devised, then those indigent defendants who are represented by court-appointed counsel will suffer the kinds of Constitutional deprivations that gave rise to the lawsuit against Allegheny County. Furthermore, one could argue, there is an equal protection problem. The indigent defendant who gets the public defender receives better representation than the indigent defendant who gets appointed counsel merely because of the funding mechanism. It would be intolerable for the situation to go on here, in the city where the 168 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Constitution would be written. But I'd also like to raise a couple of other points that come out of my experience of having lobbied the Pennsylvania General Assembly for the last six years on behalf of the ACLU. Almost every day that that legislative body is in session, and Councilman Cohen, I think you could confirm this with your own son, almost every day they're in session, they're considering one or more bills that impact on the criminal justice system; whether it's another mandatory sentencing statute, the creation of new crimes, the increasing of the grading of offense, those bills are before the legislature. And they will all have a fiscal impact on the courts here in Philadelphia; whether they're going to mean more trials, longer trials, more attorneys needed, more courts needed, whether the prisons in the Northeast have more people there pretrial or after trial, all of those bills have some kind of a fiscal impact on how the courts can function here. I can think of very few occasions when any official position of the City of Philadelphia 169 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 has been communicated to the General Assembly on those kinds of bills. The District Attorney may make known her views on how the legislature will help her office, and I would say they carry out that duty rather well. But I don't think that the City has instructed its lobbyists or its hired lobbyists to advise the members of the General Assembly about the potential consequences for the court system tough and the finances of the City of Philadelphia. The legislators have no idea how the new expenses are going to be paid for, what services might be sacrificed in order to meet the new expenses, or the additional expenses for the court system. The members of the General Assembly are consistently voting to get tough on crime without benefit of knowing the price tag for such toughness and the sacrifices that their constituents will have to make. The current problem with funding is partially -- not totally -- partially a result of the cumulative impact of this legislating in an information vacuum. And what I'm suggesting will not solve the immediate problem, but unless the 170 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 City wakes up, that what's going on in Harrisburg does add to this problem, you're only going to be able to come up with a short-term solution. The problem will reappear. To illustrate the point, I would like to discuss a current issue which, I understand, was previously raised here today, and that is Senate Bill 555, which just passed the House of Representatives. It's a Constitutional amendment that would permit the prosecutor to demand a jury trial even if the defendant wishes to waive it. It's going to be on the ballot this November. And I will be up front: We oppose this legislation when it passed the legislature. And I testified at two different hearings. At neither of those hearings was there any testimony about what this could cost. More important was, we have to get this done, but nobody testified about what it would cost, what 5 percent more jury trials would cost the City. How will that aggravate the problem that exists now with court funding? No 23 information. I was -- I did raise the issues; I don't have the answers.
And one legislator did 171 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 ask me, Well, this is a matter of principle, not a matter of money. And I would agree, it is a matter of principle. But if you don't consider what it's going to cost, it could cause the whole system to collapse. And them what would you have accomplished with the bill? What I would like to suggest, with regard to at least that particular issue, which will be on the ballot in the fall, because I think it is consistent with what you're considering here today, is that Council do have a hearing in the fall, before the ballot measure goes on Election Day so that Members of Council and members of the public can at least be aware of the potential fiscal consequences when they vote. They may be for it, they may be against it, but they should at least have an opportunity to understand that this kind of measure probably doesn't come cost-free. That concludes my testimony. I'll be happy to answer any questions, although I know you want to recess the hearing.
Well, I think I would be very pleased to receive from you information that would enable the Council, at its 172 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 maybe first session in the fall, to have a resolution introduced to hold hearings on the subject of that bill, which would include, in addition to the financial costs, I'd be deeply concerned about the impact on the general state of criminal law and its fairness. I would have great trouble finding any justification for the District Attorney to have a right which was embedded in the Constitution as protection of the civil rights of people who may be charged with crime. But in any event -- and I think the public ought to have information so that it can be informed. Whatever position any member of the public chooses to take on the bill, they ought to be informed long before the election. I think it's a very important issue.
I'll be happy to supply your office with information that I currently have and will be collecting over the course of the summer.
Very good. Mr. Jaffe, of my office, will be assigned particularly to that. 173 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 Councilman Nutter.
Mr. Chairman, in that light, I would only put on the record and ask through the Chair that we also, on this particular issue, the jury -- the Commonwealth's attempt to require jury trials, that we also get some information from the First Judicial District on all of the judges who oversee criminal courts. I had the occasion, and Mr. Frankel did some work on this because of this bill. We had the occasion to get the complete judicial record of a particular former judge to see what the disposition of cases by that individual came out to be when they had bench trials versus jury trials. Mr. Frankel, you'll correct me if I'm wrong, but this person is not shy. They are very pro-prosecution, and I believe the statistics were that defendants were found not guilty by, I believe, 1.2 percent more times when this individual sat in a bench trial than when the person had overseen a jury trial. That person happens to be the now-current District Attorney. So I think, in preparation for the 174 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 public information campaign, we need to let people know that this is quite a false issue. It's nothing more than trying to scare the public into to believing that somehow defendants are fleeing out of our courtrooms because, somehow, the judges are all soft, and we need to have juries try to chop people's heads off, you know, at Dilworth Plaza. I think people need to know what the real facts are and what's going on in the court system and not be scared by the hysteria coming out of the Prosecutor's Office.
I see that Councilman Nutter's going to be one of the chief cosponsors of the resolution that will be presented on this subject.
As a preliminary view -- and I'll be spending more time, but I have since some figures supplied the aggregate about criminal cases in Philadelphia over about a 10- or 15-year period. And although it is true that there are a slightly higher conviction rate for jury trials than non-jury trial -- and that's probably because 175 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 the fact patterns were so bad -- the lawyers knew that, you know, the only way they might win the case is to take it to a jury that it wouldn't have won with a judge. It's not such a disparity. And, in fact, what is most remarkable, despite the statement about plea negotiations, is how many cases are pled right now. It's like up to about 65 percent of the cases are just guilty pleas to begin. But we'll work on getting statistics, and I'll be happy to work with Council in this matter.
Very good. This will bring to an end the current session of the Law and Government Committee on this resolution. During the summer, we intend to monitor the situation with regard to the ability of representatives of the Bar, basically through the Criminal Justice Section, and the court to develop the cooperative relationship that we all felt was necessary in order to assure that defendants have counsel who are adequately paid to perform the duties that counsel are required to perform by the oaths they take, to see that every defendant gets a fair trial, and to see that, in a child advocacy 176 COMMITTEE ON LAW AND GOVERNMENT - RESOLUTION 980214 cases, that all the children and the parents are adequately represented. In the early fall, the committee will have presented to it a rough draft of the findings of this committee, and I'm hoping that Councilman Nutter will accept my request to work with me in preparing such a draft so that the committee can consider it in the fall. We hope to follow this problem through until there is a satisfactory solution. There ought not to be a situation in which defendants don't have enough adequate counsel ready to represent them. There are many ways of defeating justice; one way is to see to it that a defendant has a technical legal right to counsel but in fact the circumstances don't permit it because the lawyers aren't getting adequate fees to be able to represent them. This committee stands in recess until the call of the Chair. Thank you. (Adjourned at 1:21 p.m.) - - - 177 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Friday, June 5, 1998, were reported and accurately by me, and that this is a correct transcript of same. RE: COUNCIL COMMITTEE ON LAW AND GOVERNMENT BILL NO. 980214 __________________________________, JOSEPHINE CARDILLO, Registered Professional Reporter