Photo by Deborah Sirotkin Butler on instamatic camera 2006
I attended this Faneuil Hall rally for Deval Patrick, primary candidate – just as I put off hip surgery and went to the Convention using two canes to work for him. I believed in “Together we can.” Then came the sumptuous coronation/inauguration and the assault on indigent defense. As some may know, last year Governor Patrick sought to eliminate a large part of the livelihood of the solo attorneys who do indigent defense, whether of the criminal accused or of parents and the children in foster care, the mentally ill – all of it.
As many may NOT know, when Governor Patrick received the opportunity to appoint two members of the Board of the Committee for Public Counsel Services (CPCS) he did not appoint a legal scholar. Governor Patrick did not appoint a retired supreme court justice, like, say, Justice Greaney of the Macaronis Institute. No. He appointed his Secretary of Administration and Finance, Jay Gonzalez to the CPCS Board.
What is wrong with that, you say? Well, a Board member of a nonprofit or independent agency has the role of a fiduciary. A fiduciary is supposed to place the well-being of the nonprofit organization or agency and its mission as #1, above benefit to themselves or any other organization. Secretary of Administration and Finance Jay Gonzalez has the role of serving Governor Patrick (and hopefully, the Commonwealth). The well-being of CPCS is bound up in the health of the judicial branch, the ringing statements about justice and access to courts in the Massachusetts Declaration of Rights, and the CPCS history of providing zealous, independent defense to poor and destitute residents of Massachusetts, such as children in foster care – the mentally ill – and the criminal accused. After all, don’t we all subscribe to “Innocent until proven guilty”? That IS what justice and due process are about.
Not so fast.
It must be remembered that last year Governor Patrick sought to “take over” the indigent defense function and remove it from the Judicial Branch to the executive branch – just as Governor Romney sought to do. When that power grab failed, the governor sought to eliminate all independent, private practitioners, and hire 750-1000 state employees, to deliver indigent defense. Could this have anything to do with a multi-million dollar public relations campaign by the publicly funded District Attorneys association? The public will never know, even following the tens of thousands of dollars donated by the District Attorneys, their family members and their staff is not proof in and of itself. I found that one DA’s family had donated about $85k all told to the governor and legislature using the Office of Campaign finance website about 16 months ago; who knows how much it is now.
However, when the new legislation let the Governor make two appointments to CPCS did the governor appoint experts in criminal defense? No. He appointed his steward of the moneybags – Secretary of Administration and Finance Gonzalez who felt free to order his “fellow board members” to Room 157 at the State House yesterday to receive their marching orders from Governor Patrick (oops – the “proposal” from Governor Patrick). See Matt Murphy’s story in the Boston Herald.
Photo taken by P.Shlichtman of serious conversation between Deborah Sirotkin Butler and Deval Patrick circa 2008
If I were to have this kind of access today, I would be talking about the improper conflict of interest situation in which Secretary of Administration and Finance Jay Gonzalez has been placed. Attorney Gonzalez cannot both be a fiduciary for CPCS and for the Patrick Administration. Gonzalez has no expertise in indigent defense. All I could find was a six month internship in criminal representation as an undergraduate attorney; no mention in his resume of any expertise in this field. This administration supports $150,000,000 in film tax credits with $33 million going to middlemen – and jobs (if any) at $35-45k costing $145k or so to create. At the same time, children with extreme special needs are grudged long term representation by experienced and independent attorneys, and the Patrick administration, via the Gonzalez proposal would receive representation from new graduates with rapid turnover.
Secretary Gonzalez stated that the Patrick administration expects these staff attorneys to handle “at least” 200 cases each. This is not the kind of governor I thought I was helping elect. This is not justice – nor a commitment to due process for children, indigent or destitute or disabled parents and those accused of crimes who face prison and loss of liberty. This is assembly line processing and shameful in my eyes.
I have represented children who were wards of the state due to failed adoptions – and that representation can go on for 10 years because there never is an adoption after parental rights are terminated to some children who have special needs, including mental health challenges. In the cases where staff attorneys have been appointed to represent these children I have experienced multiple changes of attorney (three or more attorneys “representing” the same child – because the staff “stand in” for each other, change offices fairly frequently, etc.)
In this photo, I was talking with Governor Patrick about my concerns regarding children removed from their homes or made into legal orphans. My topic was the creating of 800 or more legal orphans each year in our state. No wonder we looked so serious! It took the federal government requiring Massachusetts to care for these young adults to improve this situation, by the way.
I would have more to say today to Governor Patrick, including how disappointed I am by his treatment of the independent court-appointed bar – and the judicial branch itself..
Patrick’s plan and demands on CPCS make a mockery of “innocent until proven guilty” and the 6th Amendment right to counsel – and Gonzalez cannot serve both Mammon (money for the Governor to spend elsewhere) and justice for those who are unfortunate enough to be indigent or destitute, like children ripped from their homes. I am so disappointed with Gov. Patrick over his treatment of “innocent until proven guilty” and indigent defense that I wish I had every dollar I donated to his campaign in 2006-2008 back. To appoint his secretary of bean counters to the CPCS Board constitutes such a gross violation of conflict of interest considerations as to show both contempt for the law, and lack of common sense.
I have to admit I had to reread a few times to try to get this straight. Is your basic objection that Mr. Gonzalez as a CPCS board member is charged with making sure that agency has plenty of money to do its job, but as Secretary of A&F he is charged with finding all the possible ways the government can cut and save money? Is your objection that putting the Secretary of A&F on the board of CPCS gives the Governor too much control over what should be an independent agency or division of the judicial branch? Is it a combination of those two?
1. As an attorney, Gonzalez is bound not to be in a real or apparent conflict of interest – his appointment to the CPCS board is both a real and “apparent” conflict of interest. I think the role of “fiduciary” may not be well understood by laypersons. The conflict of interest is far greater than “competent representation” vs. “saving money” but is “which master do you serve”. The requirement that a fiduciary exercise total trustworthiness, and take the best possible care of a vulnerable entity differs from ensuring the political goals of a master. I recommend this link: http://dictionary.law.com/Default.aspx?selected=744
2. No other Board member has ever required the entire CPCS Board to go to the State House and be told what the Governor wants. Ever.
Why didn’t the Governor represent an expert who combines academic credentials, experience with the field of indigent defense, management experience, and gravitas such as retired Justice Greaney of the SJC?
Governance – good governance that is – requires more than being in control, “my way or the highway” or consolidating control of EVERYTHING in the executive or in Boston. I guess the next scathing expose will have to be on the homogenization attempt regarding community colleges. Stay tuned.
The goal is to weaken defense attorneys and help prosecutors. An honest administration would never have taken advice from prosecutors on how to represent defendants.
Since this whole proposal is tainted with conflict of interest, I suppose it’s only fitting that it be carried out by someone who seems to be blind to that concept
Wasn’t he once a defense attorney?
I think he did do some clinic work as an undergraduate lawyer.
However, he never worked after graduation in that capacity. He was an assistant prosecutor, I believe, and in D.C., in the justice department, again it is a prosecutorial role.
Defense requires a whole different set of attitudes and skills than prosecution (where you have to always believe you are right, and in control, I believe anyway – I have never worked the prosecutorial side of the isle, though I have been attorney for a moving party fighting for a result – that is as close as I have come).
Also, since Gov. Patrick has always worked for a larger organization that paid all the bills (like health insurance. say) set up the office, etc, the “infrastructure costs” may not be as real to him as one would like.
One would hope, too, that he retains a “there but for the grace of God go I” attitude towards the less fortunate – but frankly, I do not see this in him these days, it is more an attitude of entitlement and superiority.
Almost as if those who do well, deserve to do well and keep doing better, and those who suffer, must have deserved or brought their suffering on themself. At any event, that is how it looks to me.
I thought sure he caught flak in the 2006 campaign for his defense of someone (LaGuer?) where there were questions about his guilt. I remember people pointing out at the time that even the unpopular deserve defense like John Adams defending the Redcoats after the Boston Massacre.
Some might say LaGuer was a bit of a “cause of the day” and many celebrities were asked by LaGuer to support him at a parole hearing. But no, Deval Patrick was not LaGuer’s defense attorney.
LaGuer apparently claims the DNA was contaminated or would have exonerated him, something like that. I am not, and have never been, involved in seeking or supporting parole for LaGuer or anyone else though I don’t rule out that I might be involved in something like that in the future. There are many fine people involved in the Innocence Project and innocent people do get convicted far more frequently than I could possibly like, and I hope you agree one falsely convicted innocent person is too many. I don’t have an opinion as to Mr. LaGuer.
http://bostonherald.com/news/regional/view/2011_0909laguer_gets_hearing_wants_deval_on_stand
is sad. The victim had a history of severe mental illness. Laguer was arrested by a second-rate police department in the era before DNA. He was defended by an attorney that wasn’t highly competent. One juror admitted to making racist statements about Puerto Ricans during deliberations. The prosecution or police seems to have withheld evidence. The victim’s rape kit provided no DNA evidence whatsoever, in spite of the fact that the victim claimed to have suffered a vaginal, oral, and anal assault lasting 8 hours. In the last 10 years, the biggest contention in the case is that our incompetent criminal science lab mixed Laguer’s and the victim’s possessions, thus contaminating the evidence.
In spite of the fact that Laguer could cop a plea and get paroled, he has refused to say he was guilty. I don’t know if they guy is innocent, but there is ample information for questioning whether or not justice was done in this case.
CPCS is *not* a “non-profit” — at least not in the sense that the term is usually used, to mean a corporate entity with the associated fiduciary duties of board members. CPCS is a state agency. One that for many years has overseen the provision of counsel to indigent people via a system in which upwards of %80 are represented by private attorneys. CPCS subcontracts the supervision of these attorneys to allegedly “non-profit” organizations whose boards of directors are comprised almost exclusively of lawyers who make their living providing the very representation they are supposed to be overseeing. I can’t think of a more clear example of people who are in a position to violate their fiduciary duties.
Don’t get me wrong, there is plenty wrong with the governor’s proposal to restructure the indigent defense system. But not that part. I am all for appointing someone concerned with administration and finance (who is, unlike everyone else involved in the oversight of CPCS operations, NOT A DEFENSE LAWYER) to take a critical look at the system.
goals, however flimsy.
I appreciate you sharing what so few of us understand, unless we’re suddenly confronted with the ‘system.’
The Governor continues to disappoint!
It’s a shame the source material is so… shameful. The governor should know better.
I would hope some enterprising reporters at our local papers and news agencies would be reading this and digging deeper, but sadly I doubt it.
It’s a bit depressing, but keep up the good work… it matters.