Ep. 25 Indigent Services by State

This episode will highlight indigent representation and review how several states meet their constitutional obligations to provide attorneys for indigent, or poor, defendants.  The host for this episode is Appointed Counsel's own Joe Byrd, who is the lead attorney managing Tennessee’s indigent representation fund. He is joined by Chief Justice Laurance VanMeter of Kentucky, Chief Justice Valerie Stanfill of Maine and Chief Justice Marla Luckert of Kansas. This episode was recorded at the Conferences of Chief Justices in Nashville. 

Produced by David Stripling, Tennessee Administrative Office of the Courts

Transcript

00;00;00;26 - 00;00;35;08
Voice Over
Welcome to Tennessee Court Talk. The topic of this podcast is indigent representation, and it will review how several states meet their constitutional obligations to provide attorneys for defendants who cannot afford an attorney. Before we begin, let's review where the right to have an attorney even comes from. The Sixth Amendment of the United States Constitution states. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district, wherein the crime shall have been committed, and to have the assistance of counsel for his defense.

00;00;35;10 - 00;01;00;10
Voice Over
In the case Gideon vs State, the United States Supreme Court held that if a defendant cannot afford an attorney, the state must provide one. In the case, the court specifically said governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society.

00;01;00;10 - 00;01;25;21
Voice Over
Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants are lawyers to defend themselves. This is the strongest indication of the widespread belief that lawyers and criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials.

00;01;25;21 - 00;01;50;00
Voice Over
In some countries, but it isn't ours. From the very beginning, our state and national constitution and laws have laid great emphasis on procedural safeguards designed to ensure fair trials before impartial tribunals, in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

00;01;50;02 - 00;02;11;11
Voice Over
Hosting today's podcast is Joe Byrd, who is the lead attorney managing Tennessee's Indigent Representation Fund. He is joined by the chief justices of several states, including Chief Justice Laurence Van Meter of Kentucky, Chief Justice Valerie Stanfill of Maine, and Chief Justice Martha looker of Kansas. Let's join the conversation to break all this down.

00;02;11;13 - 00;02;37;14
Joe Byrd
Hi, I'm Joe Byrd, lead attorney for the indigent services team at the AOC. Very pleased to have today three chief justices from different states that have different structures and chief justices. We first appreciate the privilege of you taking time out of your schedule today to to meet with us. But my post has allowed me to kind of look at how each state is different and truly in the United States.

00;02;37;16 - 00;03;00;22
Joe Byrd
Each state is structured differently, in how they take care of indigent representation. It's organized differently. Some have robust public defenders, some delegated to counties. Some have a mixture of that. Some are under the judicial branch, some are under the executive branch. And all three of you have unique. Your states are unique among the three. And even different from Tennessee.

00;03;00;22 - 00;03;30;00
Joe Byrd
But the one thing that the three of you have in common is, is that you were trial judges where you saw how important appointment or however indigent were being represented in court was was being done. Maybe we could just start off and you give us a little idea of how things are done in your state and how important you, even our listeners, may need to know a little bit about the importance of the constitutional importance of of the indigent being represented.

00;03;30;03 - 00;04;07;04
Justice Luckert
Marla Luckert from Kansas. We have a mixed system in that we have a statewide public defender system for our felony level cases, but a county system for our misdemeanor and other cases and within our felony missed our public defender system. We really also have a mix there because our public defender offices are located mostly in our highly populated areas or, our so they're very concentrated on the eastern part of our state.

00;04;07;06 - 00;04;35;06
Justice Luckert
The western part of our state remains largely represented using private attorneys. And of course, we use private attorneys throughout the state for conflict and for overload, as well, because our funding is not robust. And as a result of that, our public defender offices often exceed case limit caps. And at that point, then we also turn to the private attorney sector.

00;04;35;09 - 00;04;44;06
Joe Byrd
I would say that probably that's another thing I'll state share in common is funding is always, always an issue to some extent. So, Justice Van Meter, what about Kentucky?

00;04;44;10 - 00;05;16;29
Justice VanMeter
Okay. In, Kentucky, we have a statewide office, Department of Public Advocacy that is funded by the legislature. It is statewide. It covers, felony cases, misdemeanor cases, juvenile cases, does not cover family cases, typically, family cases are, court appointed guardian ad litem, locally. And they are typically the guardian that a lot of cases typically get $500 per case, which is that's problematic in and of itself.

00;05;17;01 - 00;05;41;20
Justice VanMeter
There is a system for contract attorneys in the event of a conflict. And typically I have traded notes with our director of public advocacy, Damien Preston, who I'm sure you know, he said that's actually a problem because the best contract attorneys are former DEA attorneys, and they know the system and they know they can get more money out of, being a contract attorney than they can from, being a, staff attorney at DPI.

00;05;41;21 - 00;06;07;02
Justice VanMeter
So, it's changed. When I first became a judge in the 90s, the two largest jurisdictions were are Louisville and Lexington, and they were county systems, which was not attached to the Department of Public Public Advocacy. But that changed probably about 15 or 20 years ago. It was all rolled under the executive branch agency. I think it's under the, Department of Justice.

00;06;07;05 - 00;06;09;12
Joe Byrd
So even Louisville is under just under that.

00;06;09;15 - 00;06;11;24
Justice VanMeter
Yeah, it's all under that.

00;06;11;27 - 00;06;14;13
Joe Byrd
Yeah. Justice Stanfill.

00;06;14;14 - 00;06;42;22
Justice Stanfill
Until I think two years ago, we were entirely court appointed from, the private bar. We had no public defender system at all. And, it is the public defender system now is really just beginning. We have, for what we call rural defenders, who started taking cases about a year ago. And, they're trying to establish a brick and mortar system, and that's just starting, I think this fall they hired the first, public defender for that.

00;06;42;22 - 00;07;15;27
Justice Stanfill
And again, it's only funded for a handful of lawyers. So we are entirely still just about dependent on the private bar and the private bar. And I'm sure this is true for everyone else. Is shrinking and especially in rural areas, it's more stratified. There are fewer and fewer people willing to take it. There was a we have a now a roster of people willing to take cases in whether it's criminal cases or to represent parents, in child protective cases or juveniles.

00;07;15;29 - 00;07;43;17
Justice Stanfill
And that roster at one point last week or so was, I think, amounted to 30 attorneys in the entire state willing to take these cases. So we are really in a crisis at this point. The judicial branch still appoints the guardian ad litem, although we have a pretty robust right to appointed counsel in these cases. We give parents counsel from the moment a case is started in child protective, we give all juveniles, appointed counsel.

00;07;43;19 - 00;07;51;06
Justice Stanfill
And you're entitled to appoint a counsel even in misdemeanors, if there's even the potential of a jail sentence. We're not doing a good job on it.

00;07;51;11 - 00;08;08;18
Justice VanMeter
What you don't want is you don't want the system to run rampant over someone. So it's. And that that, to me, informs the importance of, indigent representation. You want people to have the best representation they can have so that the system does not run rampant over them.

00;08;08;20 - 00;08;31;17
Joe Byrd
You know, Justice Luckert at we kind of in the round, you may want to even address some of the things that got addressed, from the other justices, because I don't think we got a chance to hear the juvenile and how that works in Kansas. And also, the, the, this concern of finding private counsel that's willing to take the cases and they're shrinking numbers in rural counties.

00;08;31;20 - 00;08;37;22
Joe Byrd
Would you like to give us, what's going on there in Kansas for you? We kind of got into that a little bit, but maybe a little more.

00;08;37;24 - 00;09;05;17
Justice Luckert
Certainly. The juvenile system is set up so that it is, appointed by the judges at the local county. So the, our chief judges in those counties go to their county commission and argue for a budget for this. And the smaller the county, the harder the argument, I believe. But even in our largest counties, most of those attorneys are making only about $80 an hour.

00;09;05;21 - 00;09;39;09
Justice Luckert
Some maybe go up to 120, but certainly not what they would be making, if they were billing a paying client or expecting to pay there. And, so we do have an incredible problem finding people who are willing to take those cases and even, moving up. We do have experience qualifications for certain levels of cases and to find people with those that can meet those criteria and take cases at those hourly rates just is a mismatch.

00;09;39;11 - 00;10;18;14
Justice Luckert
The other issue is that, as you have mentioned and, and others have mentioned, our rural shortage, is incredibly difficult. We have counties where we do not have attorneys. And so, we have actually are doing better today than we did pre-COVID because we've learned the power of remote proceedings. And so we can have a trace from our public defender's office on the eastern part of the state, at least assist in those cases and, provide some benefit to that.

00;10;18;16 - 00;10;41;17
Justice Luckert
Recently I was talking to an attorney, a public defender who had appeared in four different counties, and one day it would have taken him a week to do had he been in a car. But it was by remote. Racine was able to do that. But even in our urban counties, the the attorneys that are willing to take the cases is a very small number.

00;10;41;19 - 00;11;03;13
Justice Luckert
And what I see or saw, I see now in transcripts, but saw when I was in the trial court is that often that means we're attracting very inexperienced criminal attorneys and, frankly, do not do the quality of representation that you see in the experienced public defenders. And that should that's a broken system.

00;11;03;15 - 00;11;24;23
Justice Stanfill
I'm going to jump in on that, because interestingly, as I say, we are and virtually entirely dependent on appointing people from the private bar and the rate of pay was really problematic. It was, not too long ago, it was $60 an hour, and then it was raised to $80 an hour. And giving credit to our legislature and our governor.

00;11;24;25 - 00;11;57;08
Justice Stanfill
They've taken action. And last year it was raised to $150 an hour, which for appointed counsel is a pretty high rate. And the problem I, I echo what, Chief Justice Lucas says about the remote proceedings. We do that too, are part of the reason we're doing as much remotely as we are is to accommodate, you know, the attorney from Portland who's willing to take a case all the way at the other end of the state, but that wreaks havoc as well, trying to get people into the courtroom for proceedings that they need to get into the courtroom for or to make proceedings effective.

00;11;57;11 - 00;12;06;24
Justice Stanfill
Because, you know, the reality is, sometimes when you don't get everybody into the same room, it's just not effective. So it has its own we're doing the same thing, but it has its own problems.

00;12;06;27 - 00;12;07;22
Justice VanMeter
What’s your system.

00;12;07;22 - 00;12;34;10
Joe Byrd
So we are, we have a public defenders, that are locally elected in each judicial district. So we don't have a unified public defender's office. We do have a public defenders conference that provides administrative support. But they often get conflicted out. And so we find our trial courts have to appoint, private counsel. And when they do, it's under our Supreme Court Rule 13.

00;12;34;10 - 00;13;00;18
Joe Byrd
We're sort of like Maine was in like Rhode Island is now we it's under the judicial branch. And so, and it's administrated through the administrative office of the courts, the funding mechanism and the payment process. And then in the juvenile cases, there is no agency overseeing, any of that. So the local court has to appoint the attorney for the parents and guardian ad litem.

00;13;00;24 - 00;13;08;22
Joe Byrd
And then then they're paid under the structure, which is a billable hours structure, under rule 13 of the Tennessee Supreme Court rules.

00;13;08;22 - 00;13;23;05
Justice VanMeter
So in Chattanooga and Hamilton County, you have, a person who's elected as the local Hamilton County public defender, right. And then so does in the larger counties heat. So that person will have an office.

00;13;23;08 - 00;13;59;24
Joe Byrd
Right. Yeah. And it's of course, the conflicts come very often. It could be because, you know, the the public defender represented the codefendant or represented the victim as often these cases go, you know, can happen. And so we actually see quite a few, misdemeanors, in felony cases where appointed counsel happens, we, we average anywhere between 80,000 to 100,000 claims, per year that come through our office in both juvenile and, and criminal court. And.

00;13;59;26 - 00;14;05;23
Justice VanMeter
So they're paid local. They're paid from a central repository in Nashville.

00;14;05;26 - 00;14;11;01
Joe Byrd
Yes. So. Right. So we're funded by the legislature and it's it's in the judicial budget.

00;14;11;02 - 00;14;32;07
Justice Stanfill
We always thought that was a conflict, which is why we fought so hard to get it out of our budget. We are a unified court system. So it wasn't like with the exception of a, probate court, but, you know, you had judges trying to appoint counsel and then approving their bills or disapproving their bills, knowing that we didn't have enough money in our budget to pay other bills as well.

00;14;32;07 - 00;14;54;28
Justice Stanfill
And it felt like that was a conflict that judges were tempted to cut, the payments or, where it really, I think, sometimes came in is the approval you had to get court approval of, the ability to use funds to hire private investigators or experts or something. And, you know, again, every time we approve that, it's like, okay, that's out of our budget.

00;14;54;28 - 00;15;03;26
Justice Stanfill
And there now if we can't pay other things. And so we tried really hard at successfully at least to get the administration of the system out of the judicial branch.

00;15;03;26 - 00;15;23;19
Joe Byrd
So I think the way that Tennessee kind of works around that conflict is, is twofold. Number one, there is a set budget for indigent representation that's from the legislature. It's a set amount, and our role is primarily just administrative. So we're just going through and looking at, did they check all the boxes and comply with rule 13.

00;15;23;25 - 00;15;50;11
Joe Byrd
And then we can go ahead and make the payments. You know, based on that, it's really an administrative role that we play. And then the second thing is, is that we don't have a unified court system. So the local, judges make the appointments and they also, most of our so, for instance, funding UN investigators, and experts, the court has to approve by an order showing that there's a particularized need for that expert.

00;15;50;11 - 00;16;00;28
Joe Byrd
Let's say. But then what the rule requires is that the IFC takes a look at it from an administrative standpoint, and then we'll take a look at it, making sure that it complies with rule 13 and that.

00;16;01;04 - 00;16;05;25
Justice VanMeter
You so you're appointed by the Tennessee Supreme Court.

00;16;05;28 - 00;16;27;27
Joe Byrd
Me personally. Yeah. You. Yes. Yeah. I'm appointed by the, I'm an employee of the administrator's offices, the courts. And what my role is, is as designated by the director is that is looking at that administrative side of things. And that's really all we do. We don't get into a substantive analysis that's done by the local trial court.

00;16;28;00 - 00;16;48;13
Joe Byrd
And so, we work hand in hand with them. So I think we I don't know that we completely take care of the conflict, at least not the apparent conflict that's there. But I do think that's sort of how we navigate that a little bit more. It's a little different. Our role different from, the budget being separate and the fact that what we really have is an administrative role.

00;16;48;15 - 00;16;56;06
Joe Byrd
And that would be interesting. I think all three of your states have separate agencies that manage this. Is that right? Right, right.

00;16;56;08 - 00;17;29;16
Justice Luckert
We have what's truly called the Board of Defense Services. It's an executive branch body. But with the board as the governing body. And that board is made up of appointees by, from the governor. By statute, it caps the number of attorneys that can be on the board. They want knowledge or participation. And so that board then hires the executive director of the, the agency, so that part is separate.

00;17;29;16 - 00;18;00;22
Justice Luckert
But we do run into those other issues when we get to the misdemeanors and the, juvenile and guardian ad litem, appointments, because we still have all of that happening at that local level where our judges, many of our larger jurisdictions, though, in those areas have gone to a contract. So they will have, depending on their size, five, seven, eight attorneys that the county contracts with as essentially full time employees.

00;18;00;22 - 00;18;28;02
Justice Luckert
And so we we do even at that level, have kind of a mix of how that's happening. And most recently, our county with the largest number of criminal cases used Arpa money to take a law firm and basically pay that law firm to do, the work on what we called a resolution docket that really moved through cases that had backlog during the pandemic that work so well.

00;18;28;07 - 00;18;35;07
Justice Luckert
The county commission, I think, is now considering keeping that model in place, going forward.

00;18;35;09 - 00;18;40;10
Joe Byrd
So that was a flat fee contract. Flat not related to anything billable. Our.

00;18;40;12 - 00;19;18;20
Justice Stanfill
Well, what's interesting is the six amendment center came in a couple of years ago and looked at our system when we were still entire before there was any public defender system. And in one county in main counties are geographically large. We only we don't have that many counties. They're geographically large. But in one county, we, did the appointed system through a contract of a group of attorneys that had a flat rate contract and six amendment center was very, very critical of that, as saying that, you know, that incentivizes, if you will, the lawyers to essentially sell their clients down the river here.

00;19;18;20 - 00;19;20;27
Justice VanMeter
They do say, that's outrageous.

00;19;20;29 - 00;19;40;09
Justice Stanfill
But and then the irony of it was, as a judge who actually sat in that region where there was a contract, it's and it's a rural county, it was helpful. But ironically, it was really good lawyers. You did that. In fact, of the small number of lawyers who were part of that group. Over the years.

00;19;40;12 - 00;20;04;09
Justice Stanfill
I think 3 or 4 of them are now judges. One of them is our governor. So it happened to be probably the best group of lawyers, almost, or one of the best groups of lawyers. And that wasn't accounted for, of course, in the, you know, in the study. So, so that got kind of, meant that that whole arrangement got thrown out, without anything else.

00;20;04;12 - 00;20;35;18
Justice Luckert
I think through that criticism. But I'm like you, my personal experience of them, where I presided over cases was that those attorneys were excellent. And in this recent, thing that I mentioned with the Arpa funds, I just visited with the judge, that is the primary judge presiding over that. And he said he felt like, he said, if you look at the statistics, there actually are doing more jury trials through some of the other systems and they're getting not guilty verdicts.

00;20;35;20 - 00;20;55;28
Justice Luckert
In many of those, you know, at a fairly high rate, not, not, certainly not 100%. But, you know, there's so I would argue that at least based on those anecdotal experiences, we're getting really robust service from that contract relationship. So I'd hate to cast a hard, hard line view myself.

00;20;56;05 - 00;21;12;01
Justice Stanfill
But somebody made a comment earlier about, people making a living off of court appointments. And that's that's part of what's going on, too. It's not just a lack of lawyers in rural areas, but in a state like, man, we have plenty of lawyers, but we have a lot of. Lawyers.

00;21;12;01 - 00;21;31;15
Justice Stanfill
Who all they do, whether it's commercial litigation or whether it's it's an advisory work. Our largest law firms literally don't have anybody who's ever touched a criminal case for example. It has become very stratified, whereas when I don't know about the rest of you. But when I started practicing, we all did it, you know, I did court appointments.

00;21;31;16 - 00;21;55;17
Justice Stanfill
My first jury trial was an armed robbery on a court appointed basis. But I was coming from a law firm that had a really robust trial practice. I had, you know, some of the best lawyers in the state sort of behind me, if you will. And we don't see that anymore. Starting a couple of decades ago, our whole the practice of law has become more and more, segregated into practice groups.

00;21;55;17 - 00;22;09;15
Justice Stanfill
And we really do. We have people who really make their living off of doing court appointments. I'm not sure that that's healthy. And that's part of the problem for getting lawyers back into the system to take some of these cases.

00;22;09;15 - 00;22;35;08
Justice VanMeter
But we've had a public defender system since 1970. So, as in, I don't know how I got into it, but I found, research that lawyers were challenging their appointment because they said it was a taking without just compensation. This is in the 60s. And so the, Kentucky's highest court at the time said, no, this is part of your duty, you know, your public obligation as a lawyer.

00;22;35;08 - 00;23;05;07
Justice VanMeter
And so the, Kentucky's highest court bravely then said, okay, yeah, it is. It's unconstitutional taking, you know, and effective July the 1st, which actually was in the first day of the Department of Public Advocacy, that it was unconstitutional to appoint lawyers as public defenders. So it's all either, Department of Public Advocacy or it's contract attorneys. So there's no the courts don't appoint lawyers to handle criminal cases anymore.

00;23;05;09 - 00;23;34;22
Joe Byrd
Yeah. We've we've always looked at Kentucky as kind of the big question mark, what's going on in Kentucky from our standpoint. Because you don't have you have a robust public defender's office agency and end of the contracts. But these contracts, I'm fascinated at what you've said, that there isn't a change because the intuition would be that if it's a flat fee contract, that they're just going to check the boxes, you know, minimum input, maximum gain, profitability.

00;23;34;23 - 00;23;49;29
Justice VanMeter
Well, actually, from your colleague Damon Preston, he did address that in one of the emails that we traded just in the last couple of days. And so they what he said is they've raised their rates for contract attorneys and it's a flat rate, but they get additional if they go to trial.

00;23;50;02 - 00;24;09;29
Joe Byrd
Okay. And I do know and that was the question I was going to ask. You know we have caps on our cases depending on where they're at in terms of dependency neglect and, termination of parental rights. And then, we don't it could be, you know, we have a different between our felonies and our misdemeanor, but they're in caps.

00;24;10;02 - 00;24;19;02
Joe Byrd
Everybody's paid the same except in capital cases. So do you think that it's the the level of rates that make contract, for flat fees work?

00;24;19;04 - 00;24;42;07
Justice Stanfill
It may be I, I guess I would advocate think about it. The value to the client is not how much time the lawyer puts on the case. It's the end result. And so I think one of the concerns was that they saw cases being resolved earlier in the process, where there was a contract, whether it was at arraignment or something like that.

00;24;42;10 - 00;25;02;23
Justice Stanfill
But of course, these lawyers were getting the information ahead of time and were able to do that for cases that could be resolved or perhaps should be resolved. And for the client, oftentimes, not always, it depends on the nature of the case. You know, an earlier resolution is a better resolution. So I would talk about that not just in the criminal arena, but in general.

00;25;02;25 - 00;25;22;27
Justice Stanfill
As somebody who spent a fair amount of time working in fees, even in the civil arena, you know, think about it from the client's perspective. The value is not how much time the the lawyer spends on the case. You don't pay doctors more because they take longer to do the surgery justice.

00;25;22;27 - 00;25;29;21
Joe Byrd
Justice Luckert that seems like that would be an applicable principle in how the fees were contracted with firms in your state, right?

00;25;29;21 - 00;26;02;25
Justice Luckert
In fact, special procedures were put in place in some of these situations so that there was expedited discovery. Most of our, prosecutors, I think, have open file policies, but not necessarily were there. There is a, a real effort to make sure that immediately upon filing that that happens. And so this new docket that was so successful, that was one thing they put in place, was a formal mechanism for that to occur.

00;26;02;25 - 00;26;38;24
Justice Luckert
If I would compare that and, and the system that we have for criminal defense to our guardian ad litem program, which doesn't have the same requirements for experience, the same cap necessarily on a regular, at least on a regulatory basis. It may there be there judge by judge, but not overall. We have a great, high level of complaints that our guardian enlightens are not are overwhelmed.

00;26;38;27 - 00;27;02;28
Justice Luckert
They just do not have the time to spend with the family, the children, the families that as they need to. And so I think there is something about the caps and the and just the system that regulates it, in contrast to just being a system where new attorneys are finding a stable income source for at least a part of their practice.

00;27;03;00 - 00;27;26;03
Justice VanMeter
What I didn't address, I think, is the family court adequately. So, we our public defender system does not cover it covers juveniles who are charged with public offenses, but it does not cover parents in, DNA cases. So those those guarding the DNA cases. Yeah. Dependency neglect and abuse okay. Is that what you call it?

00;27;26;03 - 00;27;28;29
Justice Stanfill
What do you know that we call child protective?

00;27;29;01 - 00;27;30;23
Justice VanMeter
Okay. All right. We call them DNA case.

00;27;30;23 - 00;27;34;09
Justice Stanfill
I thought I thought you were taking their, you know, DNA.

00;27;34;11 - 00;27;56;19
Justice VanMeter
There is there is there some of that. There's some of that. So the attorneys in DNA cases are basically on a list and are appointed by the typically the district court judges. When I, when one of those cases is brought, and typically those are the same attorneys who might be guarding that license for the children.

00;27;56;21 - 00;28;28;11
Justice VanMeter
And those are paid a flat fee. And so that's, that's actually created a problem when there's an appeal because they don't I don't think they get paid for the appeal. The lawyers don't. So a lot of our counties have very few. We have 120 counties. We have more counties than any state except Georgia and Texas. So in a lot of our counties, there aren't lawyers to the to the DNA cases either, as to represent the parent or to represent the children. So that's a problem that we. Yeah.

00;28;28;13 - 00;28;34;00
Justice Stanfill
And I think we probably all have that where every time there's a child protective case.

00;28;34;03 - 00;28;34;22
Justice VanMeter
You mean juvenile?

00;28;34;23 - 00;28;36;12
Justice Stanfill
Like I said, we do.

00;28;36;14 - 00;28;38;02
Justice Luckert
We call them child need of caregiver.

00;28;38;05 - 00;29;08;12
Justice Stanfill
Services. Every time there's a child protective case, you're looking at appointing counsel, for each parent, there may be one, there may be two. There may be 3 or 4 involved in a particular case with different fathers of different children, etc.. And, you need a guardian ad litem. And for us, it sounds like for you, the same attorneys, frankly, who not always but it's all often the same attorneys will do parents in one case and then they are the guardian ad litem in another case.

00;29;08;14 - 00;29;23;19
Justice Stanfill
And so, you know, obviously a public defender system, if you have a with conflicts, you can't do it all anyway, we do the Guardians out of the, of the state system, but it's just it's another stressor, on the system and making it very, very difficult.

00;29;23;22 - 00;29;39;11
Joe Byrd
Yeah. Tennessee. And that was going to be part of my response. I do think the, guardian ad litem, juvenile family, we call them dependency neglect, cases to and termination of rights cases, their time intensive. So a flat fee.

00;29;39;11 - 00;29;42;13
Justice Stanfill
They should be time intensive. There's a lot at stake, right.

00;29;42;18 - 00;30;03;05
Joe Byrd
And what we do, which is which which I'm feeling good. As I sit and listen about what we do, we actually our DNA ends are in two phases. One is predisposition pre adjudication and predisposition. And so we have a separate cap. And all of our caps can be doubled if the cases determined by the local judge, the trial judge that it's complex and extended.

00;30;03;08 - 00;30;23;19
Joe Byrd
And then there's a separate fee and cap for phase two of the DNA, which is post dispositional. That would go all the way back to, say, reunification. Or if it goes into a termination, then there's a separate fee and a cap for the termination. And then if it goes to an appeal, then that's a separate claim and a separate cap that applies.

00;30;23;26 - 00;30;48;00
Joe Byrd
So you know, when you have a flat rate for us it would be a much higher flat rate than what I have seen other states. And I'm not looking particularly at your states because I don't remember all of them, but like to say 5 or $600 for a DNN that would never apply for for us in Tennessee, we we have a much you know, each there's a new claim at each court level that they go to.

00;30;48;03 - 00;30;52;02
Joe Byrd
Is there anything like that in Kentucky the way that you all do DNA ends or is it just one?

00;30;52;08 - 00;31;13;22
Justice VanMeter
Well, I'm actually thinking I need to get, your contact information so I can, like, I think I said, for the longest time, there was a flat $500. Okay, start to finish. Wow. I think we have changed that to, give an increase in fee if there's an appeal, but I would need to check that.

00;31;13;24 - 00;31;32;16
Justice Stanfill
We have a cap on ours. But again, similarly, because the Guardians are paid by the court, so I see those and but it is by phase of the case, so it's not for case. It's by phase of the case up through what we call the jeopardy phase or, you know, through reviews, through termination. Post termination.

00;31;32;18 - 00;31;55;01
Joe Byrd
Listening to us could be folks who are just the general audience, citizens. Our podcast go out, and are available to the public. And they might be if they stayed with us. So far over the years, as we've gotten into the weeds of this, which you all have just given us great perspectives and information. But they might just say, why do we need to worry about this?

00;31;55;03 - 00;32;16;18
Joe Byrd
It's one thing in the in the criminal. Yeah, we understand you got to have a defender, but why do we have so many lawyers? You know, in these child dependency neglect cases, one thing I find myself doing is explaining what is the liberty interest that's involved in these juvenile cases, as well as the the criminal cases. Your thoughts kind of thinking as your as legal scholars that you are.

00;32;16;18 - 00;32;25;27
Joe Byrd
I mean, how would you explain how why this is important to the more general public audience that may say it's just more money coming out of our budget. That's higher taxes.

00;32;26;04 - 00;32;29;17
Justice Stanfill
We're taking people's children away from them.

00;32;29;17 - 00;32;51;26
Justice VanMeter
You know, you want to make sure, as I said, that the system works as well as it can for everybody, not just those with a lot of resources, personal resources, but for those who don't have any resources. You know, we've all seen we've all had you had cases either as a trial judge or as an appellate court judge, where the allegations were unfounded.

00;32;51;28 - 00;32;58;26
Justice VanMeter
But there were still allegations and the process had to work. And you want the process to work. So that's why.

00;32;58;28 - 00;33;30;06
Justice Stanfill
And of course, one of the things that's very different in those cases from a criminal case, the goal is the protection of the child, but it is also to try to keep the family intact. And so they are resource intensive. We're trying to when there is a problem, you're trying to fix it. You're trying to make sure that the child can stay with the parents, that the parents can take care of this child, and it takes all of the players in the system to make sure that we're not blowing up our families all over this, this country. We've got some problems going on.

00;33;30;06 - 00;33;56;23
Justice VanMeter
My predecessor, my predecessor, John Minton, when he had a, when he was a trial judge, he told a story about a case involving termination, parental rights. And these children had been absolutely abused. And so he ended up I mean, it was clear that termination had to occur. And, but he interviewed the eldest child who was maybe 8 or 9, and the child was just like, please don't take my mom and dad away.

00;33;56;26 - 00;34;04;07
Justice VanMeter
You know, notwithstanding the horrible things this child had abused, he still wanted to stay with his parents because that's all he knows, right?

00;34;04;10 - 00;34;30;01
Justice Luckert
So well. And I think children also know that they're losing the sense of a family, once they're in this in the child welfare system, they often at least have a long period without that sense of family or sometimes a lifetime. And that, that that's a huge loss for a child. So, we do have a duty.

00;34;30;01 - 00;35;01;19
Justice Luckert
And I know, despite the fact that we have, in our state, struggled to really find good solutions for, getting the attorney coverage for that part of the system. We have gotten good support from the legislature to start building the specialty court model into our, child in need of care program. So we're starting to do, special prayer, special dockets, modeled after the criminal dockets.

00;35;01;22 - 00;35;27;14
Justice Luckert
When there are alcohol or substance abuse issues that are kind of underlying the problems the families facing. So I, we're seeing at least and I, you know, I appreciate from our legislature, a desire to help solve this problem. And, and frankly, a lot of that means putting more money into the system. And so, at least in our state, the legislature is responding in that way.

00;35;27;16 - 00;35;47;19
Justice Stanfill
We've had a great deal of success with our family treatment and recovery courts. I'm very proud of it. And reunifying and keeping the families intact. I'd like to expand it, but they are resource intensive. And it's not just resource intensive for the courts. It's the community resources, for treatment and and the like.

00;35;47;21 - 00;36;14;29
Joe Byrd
But I was just at a CLE in Sumner County, Tennessee, and, as, the juvenile judge said, when you see it working, it's an amazing thing. And it's, it's effective. And those programs are excellent coming through the the recovery. I have to ask you, though, I'm going to I'm going to drill down just a little bit on this because we've talked about the, you know, the child welfare side of things.

00;36;14;29 - 00;36;40;01
Joe Byrd
And that is certainly, thing that maybe people misunderstand because they want to see all those horrible parents and they don't realize this is a fundamental right to parent, you know, is you brought up, Justice Van Meter. But, what about the juvenile? And by that, I mean the juvenile delinquency. We sort of have to, the sides of this where we talk about an unruly, which is kind of just like a, truancy.

00;36;40;01 - 00;36;50;22
Joe Byrd
But then what about the juvenile who commits the misdemeanor or the felony? How is that different from your view in, in what's done in your states, any any input on that?

00;36;50;27 - 00;37;16;23
Justice Stanfill
We have a pretty robust, juvenile system that goes toward the therapeutic side rather than to the penal side. It is more difficult. Not as difficult as it used to be, but more difficult in Maine, for example, to try a juvenile as an adult, than it is in many states so underage. It's very rare for a juvenile to be, brought into the adult system.

00;37;16;25 - 00;37;49;14
Justice Stanfill
And, you know, same thing. We're right. We're trying to keep families intact. We're trying to change the course of this young person's life, of the of the youth to to try to keep them as productive members of society. You know, when when I would do juvenile court in the day, I would ask some of these kids of these, like, so five years from now, what do you think is and, you know, you're trying to change the course of what's going on in their lives, but that also it takes work from the lawyer.

00;37;49;14 - 00;37;53;08
Justice Stanfill
It takes work from all of the players and the community.

00;37;53;10 - 00;37;56;26
Justice VanMeter
So when I was the juvenile court judge, the way I saw it,

00;37;57;03 - 00;37;59;27
Justice Stanfill
Did you know we were all juvenile court judges too?

00;37;59;29 - 00;38;20;15
Justice VanMeter
Well, the way I saw it was I was trying to give the parents, you know, back then what I saw in juvenile court, the common denominator was a child who was maybe living with the grandparent, single parent home or that, the parents, if there were two parents that were both working, there's no supervision. And there was no discipline.

00;38;20;15 - 00;38;41;00
Justice VanMeter
Not discipline in the sense of physical punishment. But, you know, this is the expectation of what you're going to do. And actually that, in my view, that that lapse over into the criminal justice system as well, that, you know, a lot of, people who are offenders, they don't have that upbringing that, you know, we saw in juvenile court.

00;38;41;02 - 00;39;03;07
Justice VanMeter
But, you know, and we have and I'm sure it's the same in, Kansas, in Maine that, you know, in juvenile court, you also you have public offenders who are commit crimes that are crimes for anyone. You also have status offenders. So those are runaways, truancy and beyond control. But if you and I don't, do you know, if I don't belong, obey my parents, nobody cares.

00;39;03;09 - 00;39;10;05
Justice VanMeter
But if someone's under 18, we care because we want, you know, we want that family to to to operate as well as they can.

00;39;10;07 - 00;39;25;16
Justice Stanfill
We we do a lot of diversion so they don't come to court I think is what happens. We don't have a oh we don't have the status. No. They we literally never see them. They're diverted before. So we only see actual things in fences. If that's was.

00;39;25;17 - 00;39;51;16
Justice VanMeter
So actually in Kentucky they are typically diverted again. And again and again and then after like the fourth or fifth time, then they do come before it, which also is a problem because, you know, there's one theory for juvenile justice that if you smack them pretty hard the first time, they don't come back. But if they're continually diverted and giving, you know, minimal, you know, sanction, they think it's not a big deal.

00;39;51;19 - 00;39;52;22
Justice VanMeter
The juvenile state.

00;39;52;26 - 00;40;06;28
Joe Byrd
So I don't know in Tennessee we most of our public defenders offices are too taxed to take on a lot of these cases. So it's a lot of private counsel being appointed. What about Kansas?

00;40;07;01 - 00;40;32;26
Justice Luckert
Kansas, does not have a statewide system. So it again, is county by county for our juvenile defense. And, so it does vary widely throughout, the state, with but I think often, I, I think there are, a few places where we really have some committed attorneys who really do want to focus on this.

00;40;32;29 - 00;40;41;07
Justice Luckert
Others, it's just another part of their criminal practice or, or family law practice, sometimes, depending on how that happens.

00;40;41;11 - 00;40;49;21
Joe Byrd
So is there anything we're missing as a whole, across the United States, or any final thoughts you would have about indigent representation? And. Well.

00;40;49;24 - 00;41;18;26
Justice Luckert
There are two points that we one, which we really haven't touched on. Exactly. And it's the conversation. I have a lot, as I do talk to legislators and others, and that is that the judicial system on the criminal, juvenile and the indigents, where we are dealing with the indigent defense is and, it, attorneys that are representing people who can't afford their own attorneys.

00;41;18;28 - 00;41;46;25
Justice Luckert
Is that what we're really talking about? Is the judicial system as a whole is a three legged stool. We depend upon the prosecutors, or the state's attorneys that are bringing those cases. We depend upon the people representing the families of the children or the defendants or, and without that, the judicial system itself can't run smoothly or efficiently.

00;41;46;28 - 00;42;11;21
Justice Luckert
It bogs us down in terms of what we try to do as judges. And, it is, the other thing I would talk about is that I do think that the profession of the practice of law has shifted, at least in, what I see in my state from the time I started practicing until today, you were going to do pro bono work.

00;42;11;23 - 00;42;31;23
Justice Luckert
Whether it was on the civil side or the criminal side or a mix of both. And we just don't see that today. And in fact, our judges expressed a reluctance that they would want to be in a situation where they had to demand that of their bar. So it's a very different mindset than it used to be.

00;42;31;26 - 00;42;49;16
Justice Luckert
And frankly, it's a mindset that I don't think serves our profession well. I think it changes the way we look at our communities and our, in ourselves and the role of the law, in, in the community and in the communities welfare,

00;42;49;18 - 00;42;51;27
Joe Byrd
Justice VanMeter as than anything you would add..

00;42;51;29 - 00;43;16;11
Justice VanMeter
You want to ensure that the system does not run rampant over people who are pro se or don't have an attorney. You just don't want that. I mean, it, to the extent it does it, it crowds up our prisons and jails and that's bad. It bogs down the system because, you need someone to shepherd through cases in a more efficient way.

00;43;16;11 - 00;43;23;11
Justice VanMeter
Not the court system is all about efficiency, but inefficiency. Is it? Bogs it down really, really bad.

00;43;23;17 - 00;43;24;22
Joe Byrd
Justice Stanfill?

00;43;24;25 - 00;43;44;00
Justice Stanfill
We have a lot of different things in our society that are sort of coming to a head. I think some changes that have happened over the last number of decades that are coming together to create, a crisis of constitutional dimensions. It certainly is for us. You know, we can talk about how we looked at it. We're all old.

00;43;44;07 - 00;44;09;17
Justice Stanfill
When we started doing this, it was pro bono. We could do it. But the practice of law has changed, and we need competent representation. And if a lawyer has never done anything except draft a will, not sure that person is competent to represent a criminal defendant, in the serious felony case. So we've got attention. That is being created in the way in which the practice of law.

00;44;09;19 - 00;44;41;09
Justice Stanfill
And frankly, it's not just law. This is happening in all professions. The lack of rural practitioners in the medical field, etc.. So we've got that. But, you know, I guess my parting thoughts and this is something I say, it's not a court problem. It's not even a lawyer problem. It's our society. It's all of us. It's how we are keeping families intact, how we are administering justice, how we are, preserving access to meaningful justice.

00;44;41;11 - 00;44;45;12
Justice Stanfill
It's a problem for all of us, not just the courts and not just lawyers.

00;44;45;14 - 00;44;59;08
Joe Byrd
All three of you have been very eloquent and really insightful. I, on behalf of Director Long, the AOC and Chief Justice Kirby, we thank you for taking the time today, for being with us. And, thank you for your input on this important topic.