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TRUSTEES OF FREEDOM
Dedicated to the Right to Counsel in Louisiana	December 16, 1997 Vol 5, No. 9

THE FIVE YEAR PLAN THAT WENT TWENTY YEARS

by G. Paul Marx

LaPDA Executive Director

Nearly 20 years ago, fresh out of Law School and determined to be my own boss, I signed up to accept appointed cases from the Lafayette Indigent Defender Office. For the first few months, I was the best lawyer they ever had, because the handful of files on my desk were re-worked every two weeks. But I had plans. Another lawyer taking these cases had been in a big Lafayette firm. Over lunch one day we talked about how this indigent stuff was a phase of building a practice.

We considered this phase would be something to do for about five years, until we could take over some big banking work or rack up on personal injury cases. We were pretty confident that the IDO would be a foundation to build on.

Now, nearly 20 years later, the plan for a foundation has endured, and in fact the indigent client is the majority of my practice. Not that there aren't some retained cases, some Bankruptcy work and a few other Civil matters. But as I go on, I'm beginning to see that perhaps there is a profession called "Public Defender". In large part its due to the efforts of people like Sam Dalton, who 20 years ago were treating it like a profession. And later, people like LACDL, who first saw the injustice in a lack of funding. But most of all, its due to the years of hard work at doing things right, put in by people like me.

Long before this was somebody else's cause, people in my District noticed that Public Defenders really are good lawyers. That same thing has happened all over the State. Steve Thomas, Sam DiLeo, Wilson Rambo, Gerry Block, Alfred Boustany, John Simmons, Ken Rodenbeck, Tom Lorenzi and others paid their dues at the local level. Over the last 20 years I've seen the attitude of the bar change greatly. Public Defenders are respected. That five year plan has turned into a career.

But there is some planning yet to do. How do we address the challenge of maintaining effective funding? How do we improve professionalism among public defenders? How do we raise the compensation of a Public Defender so that it compares with other elements of our profession? These are the issues for the next five year plan.

We've done pretty well in an environment that's damn hostile to Public Defenders. But, as Roseanne Roseanna Danna used to say on SNL, "...its always something". The challenge is constant. Don't expect to win. Just ask Sam Dalton. He's been at it a lot longer than 20 years. Or ask me. I'm on the 18^th year of a five year plan!

CRIME IS FOUGHT ON THE STREET, NOT THE COURTS, AND PEOPLE LOVE IT

Our publicly funded Louisiana District Attorneys' Association is starting to lose the "spin" battle on crime. LDAA wants people to think the front line on crime is the Courthouse. Its full time lobbying effort talks fear and loathing and keeps the money flowing. But the truth has a way of seeping through.

New York and now New Orleans are showing that the real crime fighting goes on in the street, and the front lines are the police, not the D.A.s.

The 9^th annual CRIMINAL LITIGATION SEMINAR was well received by over 200 criminal defense attorneys. Ratings for the program were all in the 90% good to excellent range, and for the first time Juvenile Defense had an entire program of its own.

The Success of the Juvenile track, chaired by Peggy Sullivan, has led to a decision to include Juvenile Defense as a regular part of the annual program. With a big push from the ABA, Juvenile Justice will be getting additional attention nationally and state wide. Next year's program will include a separate Juvenile track with recent developments and other useful elements.

PICOU RECEIVES FIRST TRUSTEE OF FREEDOM AWARD

Racehorse Hains has called Public Defenders "The Trustees of Freedom". The point is, in every totalitarian society, it is the absence of a lawyer for the people the state wants to put away that makes oppression possible. In the ancient script, "Let's kill all the lawyers" is in fact the first cry of those who want to end any system of government based on law. That's why LaPDA's newsletter is named for this ideal, and that's why the Board of Directors decided to recognize outstanding contributions to Justice. The award recognizes those who receive it as "Trustees of Freedom".

In the last several years, the LaPDA could find no one more deserving that Jelpi Picou, the staff director for LaIDB. Jelpi has been a bridge builder, a peacemaker, an advocate, a manager and a friend. Its not that the award changed anything. It simply confirmed what we've known for several years: Jelpi Picou is indeed a "TRUSTEE OF FREEDOM".

24^th Takes Writs on IDO Funds and RETAINED CASES

Jefferson Parish is taking up the question of how and when the IDO has to provide expert and other assistance to retained counsel. LaPDA members recall that the 15^th JDC Public Defender lost the issue at the Third Circuit and the Supreme Court denied Writs.

Presently, the law is that Public Defender funds must supplement any AKE requests, even in a retained case, if the client is indigent. Thus, in third party pay cases, retained counsel can increase net fees by having IDO pay for experts. This has become a sales pitch by prospective counsel, in the sense that a third party can "save" those funds.

LAPDA proposed legislation to address concerns that the current setup could be abused, but it died in the Session. Until something is done, private counsel is entitled to expert funding from the IDO.

FOUR SENTENCED TO DEATH AFTER REJECTING PLEA TO LIFE IN 1997

The tragedy of a homicide is all the more sad when society decides that another killing is necessary. But from the point of view of defense strategy, its even more tragic to find that at least four death sentences handed down by Louisiana Juries this year were totally unnecessary. In those cases, the State had offered a plea to life.

Fundamentally, counsel must have enough of a relationship with the defendant to "sell a plea" when that's in the client's best interest. Not every client can understand the need to do so. But counsel's duty includes be able to effectively "counsel", and that may include advice that the case is unwinnable and life is the best possible result.

Sometimes, despite the best efforts of counsel, a client simply won't accept a plea. But at the outset, counsel has a duty to be careful about encouraging a strategy that is hopeless. In a death penalty case, a life sentence is usually the best case result. Hopefully in the four cases on death row now, its a bad decision by the client, not his lawyers, that put them there.

PROFESSIONALISM REQUIRED CLE IN 1998

The CLE Committee of the Louisiana Bar Association and the Supreme Court have mandated a new requirement. Effective for 1998, lawyers must have at least one full credit hour (50 minutes) of Professionalism.

This is not Ethics. It must be a separate hour, and you cannot combine the two or count an extra Ethics Hour for Professionalism. It is a new course completely and although you still need only 15 hours CLE, starting next year, you will have to have 15 hours, including one hour of Ethics and one hour of Professionalism.

Louisiana is following the lead of several other states, including Georgia, which have this requirement. LaPDA will include the required course in the annual Criminal Litigation Seminar, and will offer some other opportunities to gain the CLE Credit.

Professionalism may be described as "good manners", or ethics short of the mandatory rules of the bar. In other words, courtroom demeanor, proper treatment of the opposition, respect for others and things that make for conduct becoming a professional. At this point, it appears that no rulebooks exist for professionalism. But the effort appears to be to make attorneys aware of some general concept that we should be civil and professional in our dealings with one another.

CLE FINES FOR LATE REPORTING

Plea of Guilty waives all non-jurisdictional defects, including any claim of insufficient evidence. Defendants claims of fabrication of charges would not be considered on Appeal, and had to be raised on Post Conviction.

Trustees of Freedom is the membership newsletter of the Louisiana Public Defenders Association, P.O. Box 82394, Lafayette, La. 70598-2394.