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