Nov. 11 ARKANSAS: Killer's IQ figures in Parole Board plea The Arkansas Board of Parole has to decide if condemned murderer Eric R. Nance is a ruthless killer or too feebleminded to be held responsible for his actions. At a hearing Thursday, Nances federal public defenders argued that he was mentally retarded, horrifically abused as a child and ineptly defended during his trial. For these reasons, they said, his Nov. 28 execution should be commuted to a sentence of life without parole. At least the death sentence should be delayed until pending legal questions can be resolved, they argued. State prosecutors and family members of the victim said Nance is a coldblooded murderer with a history of violence who deserves to die before the month is out for the murder and attempted rape of Julie Heath, an 18-year-old Malvern woman whose throat was slashed and body dumped in the woods more than a decade ago. After listening to both sides, the 7 members of the board asked for additional documents and announced that they would not reach a decision Thursday. Today is a federal holiday so it is unlikely that their decision and the requisite documents will reach Gov. Mike Huckabee before Monday, said Rhonda Sharp, spokesman for the board. "But anything is possible. This is not normal. This is a death-penalty case," she said after the hearing. Nance was convicted in Hot Spring Circuit Court of the capital murder of Heath, who was found a week after she left Malvern to visit her boyfriend in Hot Springs in October 1993. Nance picked up Heath after seeing her beside her brokendown car on U. S. 270 on the way to Hot Springs. He slashed her throat with a box cutter and then dumped her body off Arkansas 171. A hunter scouting for deer found her body a week later. A few days before Heath's body was found, Nance checked into the State Hospital in Little Rock after having nightmares in which he heard voices. At his trial, his girlfriend testified that he had told her the voices said, "Let me go. Don't kill me." Hospital officials contacted police, and Nance was arrested shortly afterward. On Thursday, Nance didn't appear before the Parole Board, an absence that Chairman Leroy Brownlee criticized. "It's unfair to the board to try to make this decision without the inmate present," he said. Julie Brain, one of Nances public defenders, said she couldn't persuade Nance to attend the hearing. He was "overwhelmed by anxiety" about the importance of the hearing, she said. (source: Arkansas Democrat-Gazette) ********************* 'Paradise Lost' developments, installments keep coming In May of 1993, 3 Arkansas teens were accused of ritualistically murdering 3 8-year-old boys and subsequently convicted. Jason Baldwin and Jessie Misskelley are serving life terms in prison, and Damien Echols is on death row, but few would have ever heard of the so-called "West Memphis Three" were it not for "Paradise Lost: The Child Murders at Robin Hood Hills," the engrossing 1996 documentary from filmmakers Joe Berlinger and Bruce Sinofsky, only now out on DVD (Docurama, 1996, 2:30, NR, $26.95). "I'd get e-mail all the time from people who wanted to buy one," says Sinofsky of the still-strong interest in the long-unavailable film. "I think Joe and I had the last box of VHS tapes, and those were dwindling. The requests were voluminous." The "West Memphis Three" has gone on to become a touchstone case in the anti-death penalty movement, and "Paradise Lost" is frequently screened at law schools and cited by activists. Yet Berlinger actually began the project with Sinofsky as a death penalty supporter. "We went down really to make a real-life 'River's Edge,' a film about disaffected youth, but when we got down there, one plus one was not equaling two," Berlinger says. "Then we met the 3 guys and were utterly convinced that they didn't do it. Living that process fundamentally changed my view on the death penalty." Still, Berlinger and Sinofsky give equal time to the prosecution and defense in the film. "It's a balancing act," says Sinofsky. "The real work we do is enveloping all these relationships with people so that we can have that intimacy. We hope there's a trust between filmmaker and subject. If one door was open in a little town, all doors are opened. If one door is closed, all doors are closed." "We try to remove ourselves," Berlinger adds. "In order to continue to be objective chroniclers of the story, we don't get directly involved. Obviously, we think the three are innocent and we care deeply about this case. But we wanted to show all sides of the story and hope that the audience comes to the conclusion that we came to: that they deserve a new trial." One member of the trio, Echols, is married and an ordained Buddhist minister. He writes books and poems and is currently awaiting results of a DNA test he hopes will exonerate him. With that in mind, Berlinger and Sinofsky have begun work on a third installment of the film. "We're going to follow the case to its conclusion," Berlinger says. "Once this DNA testing was approved, we thought that was a good access point. >From a social responsibility standpoint, we feel like we should continue to bring attention to the case. From a filmmaking opportunity, the 3rd film will ultimately be an amalgam of the 1st and 2nd films, plus whatever happens to its conclusion, whether it takes 15 or 20 years." Neither Berlinger nor Sinofsky have any expectations that the West Memphis Three will be freed, or even that Echols will avoid the death penalty. Yet even though they have no idea how things will turn out, they feel compelled to follow through on their early work. "It's a really interesting opportunity to cover a [controversial] case from the arrest to the original trial, through all of the appeals, through the end," Berlinger says. "Whatever `the end' means." (source: Chicago Tribune) CALIFORNIA: County may support execution moratorium California should impose a moratorium on all executions until 2009, giving legislators time to decide whether capital punishment is still a warranted sentence, according to a pending bill that one supervisor wants the county to support. Supervisor Rose Jacobs Gibson on Tuesday will ask the board to pass a resolution supporting Assembly Bill 1121, a proposal to temporarily halt executions while a bipartisan group known as the California Commission on the Fair Administration Justice finishes examining the state's system. If passed, the bill won't outlaw capital punishment but simply enact a "time out." Jacobs Gibson did not return a call for comment about the resolution or the impetus behind her request. Supervisor Jerry Hill said he wants to read the exact language and review information before committing to a decision on the resolution. Typically, pending legislation is reviewed by a board subcommittee but Jacobs Gibsons resolution is being brought straight to a vote, Hill said. A push for a moratorium has grown since Illinois Gov. George Ryan stopped all execution in the state and commuted the sentences of death row inmates. In California, the movement gathered steam with the January 2005 execution of Donald Beardslee, a San Mateo man convicted of murdering 2 young women, and the pending execution of Crips founder Stanley "Tookie" Williams. Williams' defense team just sent a clemency appeal to Gov. Arnold Schwarzenegger in an attempt to vacate his scheduled December execution. The board's decision carries no legal weight but does send a message to the county's legislative leaders, such as Assemblymen Joe Simitian, D-Palo Alto, Assembly Speaker Pro Tem Leland Yee, D-San Francisco, Assemblyman Gene Mullin, D-South San Francisco and state Sen. Jackie Speier, D-San Mateo. Both Santa Clara County and San Francisco passed similar resolutions supporting a moratorium in 2001. (source: San Mateo Daily Journal) ****************** Should Tookie Die? -- Williams jailhouse rehabilitation should spare him from the death penalty. Just about one month from now, at 12:01 a.m. on Dec. 13, the State of California will execute Stanley Tookie Williams. He will die by lethal injection in the death chamber of San Quentin State Prison, home to the nations largest death row. At every execution, small crowds gather outside the prison, some to protest, some to applaud. This time, thousands of people across the country - far more than is usual for an American execution - will be paying attention. Williams' story has reignited a conversation about capital punishment, galvanizing people - many of whom have never been outspoken opponents of the death penalty - to spare his life. Their ranks include a growing numbers of Jews. Indeed, the Williams case ought to force on Jews a hard look at what, exactly, our tradition says about the death penalty. For the past 24 years, Williams, 51, has lived on death row in San Quentin. He started down the path that put him there early on. In 1971, at the age of 17, Williams, who grew up in South Central Los Angeles, co-founded the Crips. It quickly became Los Angeles, and then the nations, most notorious street gang. In 1979, authorities charged Williams with the brutal murders, during 2 separate robberies, of 4 people who had no gang connections whatsoever: Albert Lewis Owens, a Whittier convenience store clerk in one incident; and, in the other, Tsai-Shai Yang, Yen-I Yang and Yee Chen Lin - a husband and wife and their adult daughter, owners of a Los Angeles motel. All were gunned down, execution style, in cold blood. Williams claimed that he did not commit the crimes, but two years later, a jury convicted him and a judge sentenced him to die. While it is not uncommon for capital defendants to claim innocence, serious questions about the testimony and evidence that convicted him were raised - and rejected - on appeal. Among them, Williams alleges that his trial was unfairly moved from Los Angeles to Torrance, where all African Americans in the jury pool were dismissed, and the case was heard by an all-white jury. But even if Williams is, as he claims, innocent of the crimes for which he was convicted, let's be clear: He was, at the time of his arrest, a dangerous criminal who had done more than his share of reprehensible things. By all accounts, he had been involved in or connected to the kinds of terrible crimes for which he was tried. But Williams' story doesnt stop there. And what followed is not merely the familiar tale of a convicted killer trying to avoid execution through legal maneuvers. In prison, Williams began to rehabilitate himself. He publicly left the Crips, a position that involved risk to his family and to himself, even behind bars. He then apologized for creating the gang and perpetrating "black-on-black genocide" stating, "I pray that one day my apology will be accepted. I also pray that your suffering, caused by gang violence, will soon come to an end as more gang members wake up and stop hurting themselves and others. I vow to spend the rest of my life working toward solutions." This was no ordinary jailhouse conversion. Williams devoted himself to fighting gangs. He spoke out. He wrote nine children's books to steer children away from gang-banging, which he describes as "banging on your own people." One of these books, "Life in Prison" (Seastar, 2001), received an award from the American Library Association and is used in schools, libraries, juvenile correctional facilities and prisons throughout the country. Williams also recorded anti-gang public service announcements, and began meeting with young people from at-risk communities to tell them to stay away from gangs, and to describe for them the horrors of prison. He also started the Internet Project for Street Peace, which encourages gangs to stop fighting each other. He created a "Protocol for Peace," a model agreement to end gang feuds, and last year, the Crips and the Bloods in Newark, N.J., signed it, ushering in a truce that has remained in effect. This work led a 3-judge panel of the U.S. 9th Circuit Court of Appeals to state, in 2002, that Williams' anti-gang initiatives made him a strong candidate for clemency from the governor. This sentiment was supported by a deputy mayor of Newark, who, in a letter supporting clemency, cited a dramatic reduction in gang-related crime in his city following the signing of what is referred to as "Tookie's Protocol for Peace." His was too good a story for Hollywood to miss. In last year's made-for-TV movie, Jamie Foxx played Williams in "Redemption: The Stan Tookie Williams Story." Williams serves as an inspiration for a generation of vulnerable young people in our inner-cities, kids who are listening when he tells them not to throw away their lives like he did. But the story of Williams also speaks to us as Jews. Our tradition teaches that within every person, even the worst criminal, there exists a nekudah tovah, a point of pure goodness. The Jewish obligation is to work to uncover that point of goodness, in ourselves and in others, so that it can transform us through the process of teshuvah, the radical idea that we can change, that we can always be better than we are. The concept of teshuvah holds the promise that even the most wicked cannot be defined solely by their worst acts. The divine spark always contains within it the potential for change. This is, of course, the promise of the High Holidays, and just last month, many of us sat in shul on Yom Kippur, affirming our own capacity for transformation and listening to the Book of Jonah, which teaches that no matter how terrible our acts, we are capable of changing for the better, just like the inhabitants of Nineveh. But what about the death penalty specifically? Many American Jews, if they think about capital punishment at all, dont consider it a Jewish issue. Yet within Judaism, theres significant consensus: All major denominations of Judaism have taken stands opposing the death penalty or supporting a moratorium on executions. Getting to this point, however, has required a long, nuanced and fascinating evolution. Biblical law mandates capital punishment for no fewer than 36 offenses, from murder to the desecration of Shabbat to talking back to your parents. Of course, neither the letter nor the spirit of this law reflects current Jewish values. More broadly speaking, Jewish tradition offers three basic rationales for a death penalty: deterrence, retribution and the restoration of balance to a social fabric torn by a terrible crime-like murder. But how do these principles apply today? First, there is simply no evidence that capital punishment serves as a deterrent. In fact, in each year over the past decade, states without the death penalty have had lower murder rates than states that have capital punishment. And we now live at a time and in a society where retribution can be achieved by means other than capital punishment. Long prison sentences - especially life without parole - unavailable in biblical and talmudic times, can now fulfill the retributive inclination of Jewish law. At the same time, it guarantees that the ultimate nightmare - the execution of an innocent - does not occur. Finally, long prison sentences also serve to remove the murderer from society, allowing for the restoration of the social fabric that would be at risk if dangerous criminals were returned to the streets. In the Williams case, those calling for clemency are arguing that he should be spared, not freed. The very things that make so many of us uneasy about the death penalty today also concerned the rabbis 2,000 years ago. While they could not write the death penalty out of the Torah, they erected almost insurmountable procedural and evidentiary safeguards and obstacles that essentially ensured that a Sanhedrin, a Jewish court, would never hand down a death sentence. For example, the rabbis ruled that 2 witnesses were required to testify not only that they witnessed the murder for which a criminal was being condemned, but also that they had warned the perpetrator beforehand that, if he carried out the offense, he would be executed, and that he accepted this warning and nevertheless stated his willingness to carry out the act. Jewish unease with the capital punishment also informed the decision of the State of Israel not to have a death penalty except in the case of convicted Nazi war criminals. To date, despite its ongoing battle with terrorism, only one person, Adolph Eichmann, has been tried and executed by the Jewish State. In the United States, despite decades of trying, the justice system has proven unable to create a foolproof death penalty. In Jewish tradition, this alone would be reason enough to oppose capital punishment. But the rabbis make an even more profound claim. Mishna tells us that those appearing as witnesses in capital cases were instructed: One who destroys a single soul, it is as if he has destroyed an entire world. And one who sustains and saves a single soul, it is as if that person sustained a whole world (M Sanhedrin 4:5). In other words, even when confronted with a person who is accused of horrendous crimes, we are still obligated to recognize the value and inestimable worth of every human being. We are compelled to consider the potential contribution the condemned might make if spared. Who, at the time of his conviction in 1981, would have thought that Williams would be capable of work that, in 2001, led to him being nominated for the Nobel Peace Prize? Judaism also abhors an inequitable dual system of justice, especially in capital cases. The Levitical demand for "one standard for the stranger and the citizen alike" is reinforced in the Talmud (B Sanhedrin 32a) to ensure procedural fairness in capital proceedings. The fact that the death penalty in the United States disproportionately impacts the poor and people of color serves to underscore its incompatibility with Jewish values. Whether or not Williams received a fair trial and sentencing, it is horribly clear that many people, who, like him, are poor and black, do not. My Jewish values convince me that the capital punishment system in our state and in our country is beyond repair. I could cite the example of Illinois, where a Republican governor, a man who is a conservative Christian and once ardently supported the death penalty, ordered a halt to executions. He then commuted all death sentences to life sentences. Ethically, he had little alternative after students at Northwestern University discovered that more people on Illinois death row were innocent of the crimes for which theyd been sentenced to death than the number of people Illinois had executed since the death penalty was reinstated in the 1970s. More recently, the state of Georgia apologized for what it now acknowledges was the "grievous error" of executing Lena Baker, a black woman, in 1945. And a Missouri prosecutor just reopened an investigation to determine whether, as many now fear, the state mistakenly executed Larry Griffin in 1995. And the Supreme Court, as far back as 1987, acknowledged what we all know - that if you are poor or a person of color - you are far more likely to get the death penalty than you are if you are white or a person of means. And Californias system of justice is as overburdened and flawed as that of many other states where such problems arise. So if we begin in December a Texas-style run of executions (in addition to Williams, two other death row inmates have received their execution dates) we, too, will risk killing innocent people. We, too, will create dual systems of capital justice: one for the poor and blacks and Latinos, and one for those privileged by having white skin or money. But even death-penalty supporters are speaking up to save Williams. They, too, recognize that something is terribly wrong when a state can execute a man who is literally saving the lives of others every day that he lives. Innocent or guilty, victim of a flawed trial or not, Williams is set to die in one months time: a young criminal who evolved into something more, someone more than even the sum of some truly horrible crimes. Was his transformation entirely sincere? I believe it was. But in the end, the worth of his contribution does not depend on how much of him is truly redeemed versus how much his pursuit of good works is spurred on by his fear of death. He is now a force for good in the world, keeping others from making the same mistakes he made. His appeals have been exhausted, and time is almost up. The only way Williams' life will be saved is if Gov. Schwarzenegger decides to spare him. If we believe the things that we pray and the things that we say, if we are committed to the values that we claim to treasure, we do not have the luxury of complacency when confronted with what we are about to do to Tookie Williams. Because lets be clear: if the State of California executes this man, it will do so in our name. We will stand as his executioner in the death chamber next month. Whether you are for or against the death penalty, there are two questions that we - as Jews, Californians and Americans - have to answer: Does the man deserve to die? And do we want to be the ones to kill him? (source: The Jewish Journal Of Greater Los Angeles (Daniel Sokatch is the executive director of the Progressive Jewish Alliance and part of a multifaith coalition seeking to stop the execution of Stanley Tookie Williams.) NORTH DAKOTA: Speaker addresses the death penalty, forgiveness Forgiveness is not for wimps, said Marietta Jaeger Lane, speaking to an overflow crowd of students Thursday at the University of Mary. It took her more than a year and the greatest diligence of her life, but Jaeger Lane stayed the course that she believes God was guiding her along, and was able to forgive the man who murdered her 7-year-old daughter. After Jaeger Lane's daughter was kidnapped from a campground in Montana during a family trip in 1973, the family was not to know for 15 months what had become of her. During that time, she wrestled with God, she said. The family waited through an excruciating intensive law enforcement search, which turned up nothing. One day, pushed to the every brink by the sight of circling search planes and the heart-stopping moments when the boat dragging the river would pull up their nets, she allowed herself to get in touch with her rage. Truthfully, at that moment, she felt she could have taken the kidnapper's life:"I could kill him, and I meant that with every fiber of my being," she said. At that moment, she heard clearly, "But that's not how I want you to feel," she said. "I knew God was calling me to forgive, but I couldn't. "God kept after me," she said. "I argued, struggled, defended my stance. I wrestled with God." Finally, she said, "I surrendered and did the only thing I could. Igave permission for God to change my heart." Over the next year and more, the family's hopes for Susie's recovery were raised and dashed, over and over, she said. Then came the anniversary phone call. A year - to the minute when Susie had been taken, according to the kidnapper - he called her in the middle of the night in response to an interview she had given, saying she wished to talk to Susie's kidnapper. "I'm the one who took her," he said, very smug and nasty, she said. As if standing outside herself, she said, "I saw that something incredible was happening inside me. In God's eyes, the man was just as precious as my little girl. He was a member of God's family and of the human family. "I had to think of him in respectful terms." Despite the fact it was obvious the call was being traced, her attitude so stunned the kidnapper that he remained on the phone with her for more than an hour before hanging up. "He was undone by what God had done for me," she said. When she told him she had been praying for him, he sobbed, she said. In her reading of the Bible from cover to cover, she said, she believes "I was called to pray for my enemies. He needed to experience love and blessing in his life.The more I prayed, the easier it became." The call ended; Jaeger Lane was left holding the phone. The trace didn't work, but with the recording of the conversation, he had revealed enough to be found. He had been one of the original suspects, but had initially passed a lie detector test. He was eventually arrested and became a suspect in at least four murders and possibly more. When authorities searched an abandoned ranch, they there found remains later identified as Susie's: She had been murdered a week after she was taken. "Now was the time for justice," Jaeger Lane said. "I'd spent 15 months thinking about the death penalty." Her conclusion? "God's justice is not in punishment, but in restoration," she said. "I came to realize that to kill somebody in Susie's name would be to profane her sweetness. Susie was worthy of a higher moral principle." Jaeger Lane asked for life imprisonment as an alternative to the death penalty, which was granted. She also visited the kidnapper's mother, a devout Baptist. "We embraced and wept in each other's arms," she said. "And so it was over. But I wasn't the same person." In the 30 years since, Jaeger Lane has worked against the death penalty and for other social justice issues. "People who retain vindictiveness give the offender another victim," she said. After an execution, they are left "empty, unhealed and unsatisfied." Victims' families have every right to their rage. It's appropriate to be angry," Jaeger Lane said. "But laws should not be based on gut-level retribution." There are lots of reasons to oppose the death penalty, she said. The appeals process is more expensive than life incarceration, she said. "It's racism and capricious in its application. It's only for the poor." And innocent people have been executed, she said. The money spent on death penalties cases could be addressed to the root problems of violent crime, such as poverty and lack of education, she said. Jaeger Lane is a speaker for Murder Victims Families for Human Rights, a national support group which advocates for alternatives to the death penalty, and programs and policies which reduce violent crime and promote healing for victims' families as well as offenders. Her appearance on campus is part of activities examining capital punishment done in coordination with the school's production of "Dead Man Walking." (source: Bismarck Tribune) MISSOURI: Public defender system in crisis, report finds Missouri ranks 47th in public defense funding, and caseloads are soaring 80 % above standard. As he sits in the Boone County Jail awaiting next week's sentencing, John Winingar hesitates to say he has received unfair representation from his public defender. Still, Winingar, 35, arrested 9 months ago for robbery and forgery, said there have been problems. He said he usually learns about developments in his case five minutes before he appears before a judge. Budget cuts prohibit his attorney from accepting collect calls, and the direct phone line from the jail to the public defenders office often goes straight to an answering machine. So he has sent letters. When those phone messages and letters go unanswered, Winingar said he tries to keep in mind that his public defender has a crushing caseload - it's a tough situation for everyone. A Massachusetts-based consultancy hired by the Missouri Bar Association to study the state's public defender system calls it in crisis. In a report the Spangenberg Group will present to a bar task force today, the consulting firm lists a myriad of problems that prevents the system from operating according to the principles of the American Bar Association. "Public defenders throughout the state are struggling on a daily basis with high caseloads, low salaries, frequent exodus of colleagues and low morale," according to the report. "In short, the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day." The yearly caseload handled by the Missouri Public Defender system has increased from nearly 76,000 in the year 2000 to more than 88,000 in 2005. The legislature approved no new employees to handle the 12,000 new cases, and the department took a half-million dollar budget cut in 2004. Now, each trial division public defender averages 298 cases each year while the state-established limit - the Ashcroft Standard set in 1989 - is 235. The department asked for a budget increase of $20 million for this fiscal year; the legislature approved an increase of $750,000. While public defender systems across the country are generally cash-strapped, the situation in Missouri is particularly bleak. The Spangenberg Group reported that Missouri is the only statewide public defender system that failed to get funding increases for 5 years; the departments budget would need to increase by $16 million to meet the average per capita spending of the rest of the southern states; and Missouri ranks 47th in the nation in per capita spending on indigent defense. J. Marty Robinson, director of the Missouri State Public Defender system, said the numbers make it easy for lawyers to unintentionally violate Missouri's ethics code for attorneys. "(Clients) are not getting competent, effective, constitutional representation in all cases," Robinson said. The Sixth Amendment of the Constitution guarantees the right to counsel. Ever since the 1963 Supreme Court decision Gideon v. Wainwright, criminal courts have had to provide attorneys for people too poor to afford private counsel in state crimes that carry a possible penalty of incarceration. Still, public defender systems throughout the nation remain underfunded. "There is a huge disparity across the country, which really isn't surprising if you consider political reality," said Cathy Kelly, Missouri State Public Defender training director. "There's not a lot of political cache in getting on the stump and saying, 'I'm going to provide more money for providing lawyers for accused criminals.'" The report faults the Public Defender Commission and the public defender system for failing to educate the public, engage the mainstream media and win allies in their quest for funds. The commissions seven members are appointed by the governor to oversee the public defender system. Robinson disagrees. "The commission has engaged the bar and the legislature," he said. "We didn't get here overnight. That caseload creeps up on you. We have been slow to get a serious response from the legislature." State Rep. Jim Lembke, R-St. Louis County, said he first heard about the public defender caseload problems 2 years ago as vice-chair of the appropriations committee. "Marty Robinson made it very clear to our committee that it was at a critical point," he said. Lembke said finding funds during tight budget years is difficult and noted that the departments budget stayed flat through 2 administrations. "It's not a popular issue among my colleagues and the public," Lembke said. "For the past 5 years, they've ignored the problem." Lembke became chair of the appropriations committee in 2005. "We had to take $70 million out of budgets this year and I didnt recommend that one dime of that come out of the public defender budget," he said. He said he is open to increasing the public defender budget during the next session. Missouri Bar Association President Doug Copeland said Robinson first alerted the bar to the problem in the spring of this year. In response, the bar asked private attorneys to donate their time to represent poor people charged with minor traffic violations. A task force was also formed to identify long-term solutions involving Missouri State Public Defender commissioners, legislators, judges, prosecutors, Missouri Bar Association board members, representatives from the Attorney General's office and others. Doing the math In 1989 Missouri formed a statewide public defender system. Then-Gov. John Ashcroft set a standard of 235 cases annually per attorney, which determined how many lawyers the state needed on the payroll. As caseloads increased throughout the 1990s, the legislature added attorneys and then stopped in 2000 when the budget flat-lined. For fiscal year 2007, which begins July 1, 2006, the public defender system wants 124 more full-time trial division attorneys to comply with the Ashcroft Standard based on projected caseloads. "It's simple mathematics," Robinson said. "The numerator in this equation is the caseload, the denominator being the lawyers that handle them." Although Missouri's code of ethics for lawyers prohibits accepting new clients if doing so would compromise the quality of representation an attorney can provide, public defenders cannot refuse to accept cases assigned to them. "The law keeps piling on the cases," Robinson said. "You still have the same ethical duties, but there's no way to say no." For example, in an office in Hannibal, four attorneys, one secretary and an investigator handled 1,692 criminal cases spread over 6 counties last year. That adds up to 423 cases per attorney, 80 % more than the recommended annual caseload. "I always fear I'm not spending enough time to be as thoroughly prepared as I should be," said Hannibal District Defender Raymond Legg, who often works 12-hour days. "It's crisis management. I'm running from courthouse to courthouse, jail to jail." The typical public defender working in the trial division, which does not include death penalty or appellate cases, Robinson said, can afford to spend an average of 5 hours and 38 minutes on each case, based on dividing the number of cases by total attorney work hours. Almost half of all cases represented by a public defender result in a guilty plea. Only 786 trials came out of last years closed caseload of 84,801. "We would hope there would be more trials," Robinson said, but they take more of attorneys time. "They have a whole file cabinet of clients they have to worry about." The consulting firm found that the jury trial rate for felonies in Missouri adds up to less than 1.5 %. Pleading guilty Teola Wright, who is in the Boone County Jail and awaiting sentencing for felony stealing, thinks her public defender worked too closely with the prosecutor. "When they work together, it's what the prosecutor wants, not what I want," Wright said. But Wright's case was disposed of quickly because she pleaded guilty on the advice of her public defender who managed to have one charge against her dropped. She has been in jail since Sept. 29 and will be sentenced next week. In some instances, a defendant can get out of jail more quickly through a plea bargain or guilty plea than waiting for a public defender because of the backlog of cases since 2000. Last year, the trial division opened 951 more cases than it closed. The year before, 2,560 cases did not get resolved and 4,849 were carried over from the year before. "I get letters regularly about people that are sitting in jail waiting 13 months to go to trial," Robinson said. When clients decide to stick it out in jail, the public defenders struggle to find time to make the monthly appointments guaranteed to each client by Missouri State Public Defender guidelines. One public defender said he visits only those people in the two closest correctional facilities in his jurisdiction, which includes 18 jails and prisons, according to an anecdote in the draft report. "One judge commented that the court has a difficult time accepting pleas from public defender clients because, during the plea colloquy, defendants often complain about the lack of contact from the public defender," according to the draft. Delays dont just harm the defendant, Kelly said. "The longer a case languishes the more likely it is that the witness might move away or the witness may die or the memory is not as clear and the added cost if they are confined of keeping them locked up that long." A drawn-out legal process also raises the risk that the lawyer representing the client will leave in the midst of the case, so Kelly trains the lawyers to document everything they do to ensure evidence does not slip through the cracks. Lawyers leaving The draft report cites two positives in the public defender system - its employees and the training they receive. "They are hard-working, overloaded with cases, underpaid and under-appreciated by management," the draft states. About 1/5 of the system's employees have quit in each of the past 5 years. The result is that the public defenders office has become a training ground for newly minted lawyers who then move on to more ucrative careers in private practice and even the prosecutors office. "ou have more and more cases handled by less and less experienced lawyers," Robinson said. "When we replace a lawyer, it's typically someone right from law school." While an attorney working in the Boone County prosecutor's office earns $45,898 to $68,847, public defender salaries range from $33,792 to $52,452, the drafts authors point out. Sometimes the choice to leave is motivated by student loan debts that can reach $100,000. "I remember one lawyer, when she figured out what she had left after she paid her student loans off, she had $300 out of her paycheck to live on in a month," Kelly said. Prosecutors have also historically fared better in receiving student loan assistance from the federal government, though loan assistance to prosecutors has diminished in recent years, Robinson said. To keep staff from leaving, the department wants to increase the budget to give the staff raises as well as hire more attorneys. Meanwhile, legislators at the federal level are sponsoring bills that would, if passed, help public defenders pay off their student loans. Lack of support Compounding the problems of the public defender system is the lack of support staff - including secretaries and investigators. "Look at what the state (the prosecution) has - the case is basically all worked up be it through the sheriff, the police, the FBI, the highway patrol, the CIA," Robinson said. "Any number of government agencies investigate, take statements, pull it all together and give it to the prosecutor who might then have an investigator on their staff." The public defenders average one investigator per five attorneys, which means one investigator must handle hundreds of cases. "Obviously, it's a triage," Kelly said. "Which cases do we think are going to go to trial, which cases have the most serious consequences, those are the cases that were going to put some investigation resources into." And the scarcity of secretaries means that many attorneys "write their own letters and motions, answer phones, copy all required documents and serve subpoenas," the report says. The solutions the report proposes are easier said than done: Public defenders must request a large increase in funding, withdraw from minor cases, ask the state to decriminalize minor misdemeanors or sue the state. "We have to give options to the legislature," bar president and task force chair Copeland said. "Either they have to reduce what the public defenders are required to do or they have to increase resources." Last year, Lembke sponsored a bill that failed late in the session to help the public defenders decrease their caseload. Now, he is a member of the task force, which will use the report to try to persuade the legislature that the systems needs are quite real. Lembke said his support is purely constitutional. "I have no great compassion for the people the public defenders are defending," Lembke said. "We have a constitutional responsibility to defend those who can't afford to defend themselves, to give them access to a competent defense." (source: Columbia Missourian)
