Blue Mass Group

Reality-based commentary on politics.

Were guardians ad litem and indigent defense thrown under the budget bus?

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Go to http://www.mass.gov/bb/h1/fy11…

Line item 0321-1500 is “staff”

Line item 0321-1510 is “independent contractors” – private attorneys who accept court appointments in child welfare, mental health, and criminal cases.    I hope  that the legislature will repair this damage due to having a better understanding of this issue and this kind of work and independently contracting legal worker.

Note the vast expansion of the staff line item, 250 new state employees, more or less, and the slash and burn to the independent court appointed bar.

Remember, no taxpayer pays pensions to those who provide representation under 0321-1510 as mandated by the constitution indigent defense per Gideon v. Wainwright

Follow the money; see what was done.  Lost in Obama’s speech probably to everyone but those affected by these two line items.

And – oh yeah – no separate funding or protection for Guardians Ad Litems.  None.  No funding at all given that Chief Justice Mulligan would hold the reins to one big pool of money with no requirement he fund the role of Guardian Ad Litem.

It will be up to the legislature to repair the devastation to indigent defense and guardians ad litem that the Governor’s budget would otherwise inflict or perpetuate.

While I appreciate that this proposed budget level funds legal aid from last year, the failure to value or protect the work of either Guardians Ad Litem for kids in state care, or the work of the independent attorneys who shoulder the work of indigent defense is … hard to understand…and a sad disappointment.

Once again, is anybody there?  Does anybody care?

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  1. Unfortunately, there is a small minority of activists who will.  The poor, weak and disenfranchised are entitled to same justice as the rest of us…but without adequate representation, where is their voice?  Unfortunately, despite assurances from fellow Dems…this guy is nothing but a corporate wolf in progressive’s clothing.  

    • While Deval Patrick is charming in one-to-one conversations, he apparently does not value either zealous, independent indigent defense, or understand what it takes to do it.  

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      p>”WE” do not WANT to be state employees.  We value our independence.  A good defense lawyer has to be ready and willing to stick a finger in the eye of the State.

      <

      p>The DAs want “greet ’em and plead ’em” attorneys” – not today’s feisty, zealous, independent defense bar.  Most of the defense bar are independents – and many are ex-military and despite my best efforts, “they” mostly did not vote for Coakley and they sure aren’t going to support Deval Patrick with THIS budget.  These folks READ budgets and not only vote, but get out there and work their candidates, not from a “party perspective” either.

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      p>I am in touch statewide with this constituency as the Clerk/Treasurer of the Mass. Assn. of Court Appointed Attorneys and I am hearing it statewide – anger.

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      p>And expanded gambling would devastate the marginal in our society.

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      p>This budget is a frontal attack on what I believe in, and shows ZERO understanding of the needs of the bench, needs of the independent Sixth Amendment Bar, or the reality of the way Chief Justice Mulligan exercises governance.  I am passionately disappointed.

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      p>For the solo practitioner, who is also a small business person, THIS budget is a kick in the teeth.

      <

      p>For the Child in Need of Services, and those enmeshed in the child welfare system, this budget reeks of abandonment.

      • AmberPaw, I know you do good work for the right reasons, just as you know I have virtually no knowledge, theoretical or applied, of the law or its processes.

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        p>Having written that, with respect to:

        <

        p>

        “WE” do not WANT to be state employees.  We value our independence.

        <

        p>pick one:
        a.  I don’t care
        b.  Too bad

        <

        p>What you want isn’t relevant.  What’s best for the indigent, with consideration for using public funds efficiently, is all that matters.  If that means independent contractors, cool.  If that means state employees, cool.

        • tough budget, tough choices.  looks like he is trying to stretch the money available to have it be the most effective.  you disagree.  but I wouldn’t say the Governor doesn’t care just because he’s trying to tackle the same issue to get to the same result as you, but with a different solution.  I’m no expert on the issue, just wanted to present the other side.

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          p> http://www.mass.gov/bb/h1/fy11…

          • He either caved in to the DAs desire to have tame over worked attorneys who would plead out clients rather than defend them, or he caved in to a demand for hack jobs for unemployed attorneys who don’t have the balls to run solo.  Just my .02.

            <

            p>See the bibliography and if you want more info, let me know.  If you follow the links I gave you won’t have to take just my word at all.

            • you didn’t “give [me] a bibliography”– you provided three links “just for” stomv half an hour later.  I appreciate those links though.  As I said before, I’m not going to take sides, and I am not an expert in this issue.  I admire the work you do for those who are not fortunate, for the record.  

              <

              p>I’m glad you and paulsimmons get off on 6’ing each other, and for the record, it really doesn’t bother me that you are giving 4’s to me and stomv who are respectfully engaging you, but if it gives you pleasure to do so, go for it!!

        • NO state employees do not give better representation and, in fact, cost between 2 and 3 times as much.

          <

          p>If the Governor though he was doing a favor to the hard working thin line of indigent defense, or spretching money further, wrong on both counts.

          <

          p>Now, a bibliography just for you:

          <

          p>1.  Almost all staff public defender systems are degraded by such excessive case load that the poor get only an illusion of representation

          <

          p>2.  wikipedia agrees

          <

          p>3.  Assembly line public defense from staff attorneys violates constitutional rights

          <

          p>Want more?  The zealous representation by an independent, cost effective private Sixth Amendment bar in Massachusetts was held up as ideal

          <

          p>NO expanding the number of staff public defenders would not be either “cheaper” per effectively represented client nor “better” for the indigent.  

          <

          p>It is easy to just go “oh I don’t agree” but I do know the research and the issues and what I am talking about.  

          <

          p>You do not know about this topic, so why weigh in unless it was to ask for a bibliography?  Just let me know if you want some more.  

          • Read it again:

            <

            p>What you want isn’t relevant.  What’s best for the indigent, with consideration for using public funds efficiently, is all that matters.

            <

            p>I didn’t claim that independent contractors do a bettor or worse job — in fact, I explicitly claimed neither.  I maintain that assertion — I have no idea which is better, nor do I want to know.  Yet your rating of my comment, and your response, centered entirely around exactly that.

            <

            p>What I did state, and I’ll state again, is that what those contractors want isn’t relevant.

            <

            p>Specifically, ” ‘WE’ do not WANT to be state employees.  We value our independence” is irrelevant.

            <

            p>

            <

            p>Consider any other kind of government contractor, ranging from the Blackwater types to some local road paver.  Sometimes they’re a better use of taxpayer dollars because they provide better service for the buck.  Sometimes they’re not.  At no time should we take what the contractor wants with anything more than a grain of salt.

            <

            p>That’s all I’m claiming — it doesn’t matter what you as a contractor for the state “want” the state to do vis-a-vis employment status for attorneys.  What matters is what’s the best use of taxpayer dollars.

            <

            p>

            <

            p>So: you believe that one way is better than the other.  That’s cool.  Argue why it’s better for the taxpayer and for society — don’t write about what you as the contractor want for yourself.  It has no traction, nor should it.  And frankly, you’re an attorney.  I know you’re capable of separating arguments.  You should be able to separate these two, despite their closeness to your employment, expertise, and personal beliefs.

            • So, no I won’t do your homework.  I gave you the links; you can avoid the wikipedia one if you are beyond that.

              <

              p>I gave reasons other than what I want – and believe me, the links I gave and the info therein answers your queries.

              <

              p>No – expanding staff is not better representation nor is it better bang for the buck.

              <

              p>Yes – some of my clients are court appointed but by no means all of them.

              <

              p>No I don’t do criminal defense I do child welfare cases and private family law and appeals.  

              <

              p>I provided the fact that I do some court appointments as part of my practicen as fair disclosure, NOT as argument.

              <

              p>OR, you may wish to read the following report, which was cleared for dissemination, from Benjamin Fierro, III, Esq:

              <

              p>

              Fiscal Year 2011 Report
              Budget Would Re-Align Ratio of Public Defenders and Private Counsel
              MACCA to vigorously oppose changes

              Thursday, January 28, 2010

              Governor Deval Patrick yesterday released his proposed State Budget for FY 2011.  Contained within that document (House Bill No. 2) is the most radical re-alignment of the current system of providing legal representation to indigent persons since the passage of the Indigent Counsel Reform Bill (Chapter 54 of the Acts of 2005) that authorized the pilot program for adjunct staffing of 110 lawyers within the Committee for Public Counsel Services’ Public Defender Division.

              The Patrick Administration’s budget transfers $35million from the Private Counsel Compensation account (Line Item 0321-1510) to the Committee for Public Counsel Services’ administrative account (Line Item 0321-1500).  The express purpose of this transfer is to “allow CPCS to hire more public staff attorneys, which can manage increasing caseload and create a more balanced and cost-effective approach toward public/private representation of indigent clients.” (Emphasis added)  The budget presumes that this transfer will allow CPCS to increase its FTE (full time equivalent; combined administrative and legal) staff from 442 positions to 952 positions.  Note that the budget does not provide for any additional funding to enable CPCS to hire the remainder of the public defenders authorized by Chapter 54.

              The total appropriation of $154,089,000 for both the public counsel and private counsel divisions recommended in the administration’s budget for FY 2011is identical to that appropriated for FY 2010.  However, the FY 2010 budget appropriated $28,645,024 for the Public Defender Division and $125,370,957 for Private Counsel Compensation.  The FY 2011 budget, on the other hand, appropriates $91,044,000 for the Public Counsel Division and only $63,045,000 for Private Counsel Compensation.  Language included in each line item allows the chief counsel to transfer funds between each account, provided that he provides written notification to the house and senate committees on ways and means and the secretary of administration and finance within 30 days of the transfer of funds.

              The FY 2011 budget anticipates that total spending for both public defender and private counsel services for FY 2010 will be $158,350,000, thereby requiring a supplemental appropriation of approximately $33 million for the current fiscal year (CPCS estimates it will need supplemental funding of approximately $35 million).

              MACAA has been told that this budget re-alignment was not requested by CPCS nor was CPCS informed of the Patrick Administration’s plan beforehand.  Furthermore, CPCS is not compelled by the budget to hire more public defenders and may, indeed, transfer the funds from the Public Defender Division back to Private Counsel Compensation account.

              In advance of the release of the Patrick Administration’s FY 2011 State Budget, MACAA Vice President Bill Smith and MACAA Legislative Counsel Ben Fierro met with LeeAnn Pasquini, the budget director of the Executive Office of Administration and Finance, and her fiscal staff.  At that meeting, MACAA’s representatives spoke of the quality of representation provided by private lawyers, the cost effectiveness of the current predominately private counsel system, the need to adequately fund the private counsel compensation account at the start of the fiscal year and the importance of timely enactment of any supplemental budgets.  They also offered several suggestions on ways the commonwealth can offset the costs of indigent defense.  In a subsequent letter from MACAA President Rob Dimler to Budget Director Pasquini, those ideas were set out, including: 1) decriminalization of certain misdemeanors; 2) creation of a special commission to review misdemeanors; 3) improve indigency verification and management; 4) increase the statutory fee for appointed counsel; 5) dedicate appointed counsel fees to the budget of CPCS; and 6) bifurcate the budget for private counsel into civil and criminal representation to provide greater clarity and transparency.

              MACAA has been informed that CPCS provided the Patrick Administration with similar recommendations to better control or offset the cost of indigent defense.  Regrettably, the FY 2011 budget does not include any of the ideas submitted by MACAA or CPCS.

              The Massachusetts Association of Court Appointed Attorneys will strongly oppose this initiative by the Patrick Administration because it will jeopardize the quality of legal representation provided to indigent persons without yielding any savings to the commonwealth.

              The administration’s FY 2011 budget will be referred to the House Committee on Ways and Means, which will review the governor’s recommendations and then craft a proposed budget of its own.  MACAA will urge that committee and its chairman, Rep. Charles Murphy (D-Burlington), to restore funding for the Public Defender Division and Private Counsel Compensation to its prior levels, and to eliminate any ability of the chief counsel to transfer funds between those accounts.

              Benjamin Fierro, III, Esq.
              Legislative Counsel

              <

              p>

              • ignore my point, talk past it, claim you won’t do my homework for me (for an assignment I didn’t create), and then drown me in links and legal information about which I’ve already stated (twice!) I don’t care about.

                <

                p>Whatever.

        • State contractors have the choice to accept or reject cases in proportion to the time and energy they can give the clients they get by appointment.  That holds out the promise of a certain amount of responsible judgment about how much one can get done.  State employees are saddled with an unmanageable workload.  While they have lots of experience, and are often quite competent as a result, they are also stretched ‘way too thin, and no more superhuman than you are.            

          <

          p>This is a sad example of misplaced compliance with inner-Rt. 128 customs of government operations by our otherwise fine governor.      

          • I get to choose whether or not to request additional appeals, and how many duty days or cases.  I balance my private clients needs and how many court appointed cases I can take and have the time to handle the right way.  I close my intake when I choose.

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            p>As a disclosure, I am not a member of any of the “bar advocate panels” but do solely appellate defender child welfare cases, and a certain amount of child welfare cases in juvenile court – again, constitutionally mandated indigent defense but not criminal cases.

            <

            p>And these cases  while  important to me as “the right thing to do” and a significant part of my income, are not my only cases, or the only kind of legal work that I do.  I am free to take private paying clients, teach, or whatever other kind of legal work I choose and am independent.  I did only private clients for the first 11 years I have been an attorney [going into the 26th year now] when DSS barged into a case, I was disgusted, and added defending families against DSS intrusion & children from being lost in the system to what I do.

  2. I’ve been engaged in representation of the indigent in the greater Springfield area since the mid-1980’s.

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    p>This issue is one of so very many that visits brutal miscarriages of justice on the working poor and unemployed.  Until you have experienced a false or inaccurate accusation that threatens criminal prosecution or loss of your family’s integrity, you can’t appreciate the urgent need for a zealous lawyer to stand by you.  

    <

    p>Too many of the troubled folks who have broken a law (no, I’m not talking about the over-the-top serial killers dramatized by “Criminal Minds” ) find their whole lives devastated by the public’s enthusiasm to punish.  How about your own possession of a couple joints when the “statie” stops you for doing 15 mph over the limit?  Was your toddler strapped securely in the back seat when the officer decided to ask you to step out of the car and elected to search your glove compartment?  

    <

    p>Okay, probably the search would be thrown out – several thousand dollars in legal fees later – and your mother-in-law might be allowed to pick up the toddler until you’re bailed out.   Not so much if you’re driving while a minority in a car that needs repair that you can’t afford to pay for and your mother-in-law works until 11 p.m. to pay her own rent.  

    <

    p>So the baby ends up in a foster home.  Now is your hair standing on end?

    <

    p> It’s the kind of event that I’ve been dealing with for many years.  I’m underpaid, but my clients often hug me.  Doesn’t pay for my health insurance, though, or my malpractice insurance.   And, no I’m not amused by the increase in state employees rather than an increase in the hourly rate that I’m paid to do this heart-breaking work for people who feel terrorized by their own government.

  3. If a commenter begins their post with “I don’t know anything about this issue, but…” or any variant of that statement, respect them and yourself enough to not respond!

    <

    p>Ooops.  Sorry!  Next time I will know better.  Thanks!

    • When a diarist is adamant about an issue, he or she often fails to read carefully or respond to the actual comment, unlike the rest of the time when that diarist is far more sensible.

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      p>And often far less passive aggressive too.  Thanks!

  4. In DMH we have staff attorneys who represent the interests of the state:  They argue commitments and guardianships and probate Rogers orders.  CPCS provides attorneys to represent clients in commitment and rogers hearings, and then more often than not, when a patient has no involved family, the court appoints a neutral guardian, who is paid the paltry sum of $500 per year to be the Rogers Monitor.  Some of these attorneys do nothing on behalf of their wards, and do not even meet the minimum of seeing their ward once per year.  Others are devoted and come to meetings, visit their wards, and call frequently.  The disability law center also provides legal service, mostly in the form of advise and referral to patients.  Would these cuts affect CPCS. the DLC, or the guardians appointed by the courts?  I think many of the lawyers who get assigned by CPCS to represent patients, are not actually employed by CPCS.  This whole thing could make a problem that already exists much worse.

    • …are appointed private attorneys.  That is one of the 13 panels [sort of like ‘flavors’] where G.L.c.211D, the constitution, or case law require, or the Uniform Probate Code require appointment of counsel.

      <

      p>If you look at Lavallee and Rosemary Cooper’s case first held that although attorneys could be drafted and forced to represent clients without their consent, they had to be fairly paid in Rosemary2 the SJC held that attorneys could be drafted without their consent, and paid any amount or nothing at all; that there was no entitledment to fair payment or freedom of choice.

      <

      p>So the 13th Amendment about involuntary servitude does NOT apply to attorneys for the indigent.

      <

      p>Surprise!

  5. This comment is in response to Charlie’s comment promoting this passionate, well informed Diary by AmberPaw.

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    p>It’s time for us “special interest advocates”, especially those who advocate for children,the poor, the elderly, the disabled and the damaged, (and their allied Blog editors) avoid getting into a space where they are competing with each other for limited public funds and the attention and support of the public and policy makers.

    <

    p>AmberPaw is correct when she says that the public legal structures that this state has constructed to protect young children and teens being harmed by negative factors in our society, including their own dysfunctional families, is woefully underfunded and in need of serious repair and reform.

    <

    p>And while she has not proposed to cut Chapter 70 (local aid for public education)to fund those repairs and reforms, I think Charlie’s promotion of this diary illustrated the stark choices before us.

    <

    p>ONE Mass kept up this post on how advocates can integrate a revenue message into their advocacy work for a single program for a full week. We all need to educate our community allies and our policy makers about the need to find new revenue sources to repair and reform the whole network of public structures that serve our childrn.  

    <

    p>

    We would all love to fully-fund each and every great public and nonprofit program that folks in our state work so hard on, and that make our state a better place to live. Unfortunately, each budget season, we find ourselves competing for a limited pool of funding for the good of our programs.

    Lew Finfer, ONE Massachusetts Leadership Team member and Director of the Massachusetts Community Action Network, goes a step further. He integrates support for additional revenues into each of his budget requests
     

    • If indigent people are arrested, pursuant to the United States Constitution Bill of Rights, the Sixth Amendment mandates that counsel be appointed.  This is hard wired, and a constitutional mandate.  This Amendment was passed to avoid the situation in Old England where the rich had rights, but despite laws, the poor did not as they had no legal representation; today England goes far further in providing counsel to indigent people in both criminal and civil matters, by the way, see Civil Gideon, a scholary discussion

      <

      p>As discussed above, judges have no choice; if an arrested person is arraigned, pursuant to The Lavallee decision judges must either appoint counsel or release the defendant.

      <

      p>Rather than release the defendant, judges have created a right to draft attorneys without the agreement of the attorney to accept the appointment, on threat of disbarment, see Cooper decision

      <

      p>This stark reality does not face any other profession or branch of government.  There is no constitutionally mandated minimum level of dental care – even if there should be!  Just imagine, too, if doctors and dentists could be drafted to provide care without THEIR consent, with no control over when, if, or what they were paid, what kind of outcry there would be!

      <

      p>Perhaps this is because an early rallying cry of our democracy was “Give me liberty or give me death.”

      <

      p>Therefore, an honest discussion of the costs of representation and the programs for providing that representation is fundatmentally needed.  For an entire new modality to be put forward on an inaccurate and misleading basis is unfair to the poor who risk loss of liberty and children, the attorneys who provide representation, the judicial branch AND all other funded programs.

      <

      p>This is especially true when every suggestion for reducing costs of representation, number of cases and augmented funding for indigent defense was apparently ignored.

      <

      p>Indigent defense is not a service in competition with other services, but a core, mandatory constitutionally required part of the requirements of the judicial branch, where for many years the Commonwealth has balanced its budget by squeezing the poor and underpaying or slow paying dedicated attorneys who are at risk of being drafted – and the Rosemary Cooper who brought the Cooper case was a grandmother, on social security, dying of cancer when she fought her way to the SJC alone.  She was also my friend.

      • Thanks to John Adams

        <

        p>

        In addition, notably, there was Section II of Chapter 6, a paragraph headed “The Encouragement of Literature, Etc.”, which was like no other declaration to be found in any constitution ever written until then or since. It was entirely Adams’ creation, his original contribution to the constitution of Massachusetts and he rightly took great pride in it.

        “Wisdom and knowledge, as well as virtue, diffused generally among the body of the people being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates in all future periods of this commonwealth to cherish the interests of literature and the sciences, and all seminaries of them, especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings, sincerity, good humor, and all social affections, and generous sentiments among the people.”

        <

        p>This is not a debate about whether any of our public structures are mandated by the Massachusetts or United States Constitution or not. Nor is it about who has the best organized and well financed constituency.

        <

        p>This is a debate about what kind of government we want and how we pay for it.

        <

        p>I would bet a million dollars, if I had it, that the public education constituencies, and the constituencies for fair payment for attorneys representing indigent clients don’t want to think of themselves as being in competition for scarce resources, but they are. Unless they add a revenue message to their advocacy.  

        • If you review Ben Fierro’s excellent report, which is contained in this thread, you will find that not only was that “revenue message” provided, but ways to reduce the case load, deliver indigent defense in a more cost efficient manner, and more were provided.  NONE of that excellent proposal is in the FY 11 House One.

          <

          p>Reference was even made to Chapter 176 of the Acts of 2005, and the cost cutting/revenue raising “commissions” that were supposed to be appointed, but never were – and still have not been put into action.

          <

          p>Our tiny group that upholds the thin, thin line between the state and the indigent in fact did both (provide suggested revenues and cost containments).

          <

          p>And I am not suggesting that after layoff, teachers be drafted to work pro bono to reduce classroom sizes…but the Cooper and Lavallee cases have made just that “solution” a reality in my life.  Most people don’t know what those who do indigent defense face out in the real world.

          <

          p>And there is no comparison between the clout of education and that of the less than 5% of attorneys who do indigent defense.

          <

          p>Education has vocal legions of parents, teachers unions, school committees and their associations, municipal and city governments and their associations.

          <

          p>There is neither union support, nor a vocal constituency for indigent defense except the small number of attorneys who risk their very livelihoods by speaking up.

          <

          p>For me, Rosemary Cooper remains my hero; you can see pictures of her in the last six months of her life, when she was the only attorney in Hampden County who dared fight conscription even as she was dying.

  6.   Since cases involving G.A.L.’s are routinely impounded, how does anyone know if they’re doing a good job?  I wonder if anyone even can figure out what a good job would consist of.  What standards do they hold G.A.L.’s to?
     If any member of the general public has to deal with G.A.L.’s, it is usually only one.  That was my experience, and I would conclude from that experience that things could hardly be worse.
     Can you, AmberPaw, or anyone reading this post shed some light on this situation?

    <

    p>PS.-Does anyone know if that guy selling term papers illegally is still working for the Appeals Court?

      1.  Let’s call him “Z” – fired.

      <

      p>2.  GALs – there are A+ GALs – which I would like to hope most are and that I was as a GAL for Education when those cases existed – and D- GALs.  One issue that you raise is a good one – that Juvenile Court cases should NOT be closed and 100% impounded, and in fact, in many if not most states ensure that such cases are open for “light and air” unless a motion to impound is brought.

      <

      p>3.  Another issue your post brought up and which is valid is the lack of oversight of GALs and their reports.  What do you think about moving the GAL function into or under the Office of the Child Advocate, and implementing certification standards and review – currently it is very much ad hoc out there on the GALs that are still being assigned.  I know that is kind of another topic, Bob, and you may want to do your own post on it, without straying into impounded territory.

      <

      p>I think you are referring to the impounded case that was published as Adoption of Betsy and which is impounded but could well provide the energy for you to seek legislation that would change how GALs are appointed and supervised.

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