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.