August 30, 2004

"Sing me a song of my old Kentucky public defender home..."

Big thanks to Jeff Sherr and his Kentucky Department of Public Advocacy blawg for linking to me today. I've been a fan of DPA and the Ernie Lewis way ever since 1998 and NCDC (National Criminal Defense College - ask your boss to send you), when my partner was Elizabeth from the DPA LaGrange office.

Thanks also for the link to this spat, where the head PD (not from Kentucky) says that his office, not a judge, decides who is or is not represented, and the judge replies, "The public defender's office seems to do everything they can not to represent people. If they want to declare war on me, they've got it."

Uh-oh. Why any PD would get into this kind of pissing match is not immediately apparent.

1 Comment:

Anonymous said...

Hey, Skelly, great Blawg, particularly good library of links.

But hero? HERO??????

This guy Ernie Lewis, the Kentucky Public Advocate (public defender), ain't no hero, and it's not just me that says so. Look at the URL below to read the latest from our intermediary appellate court, and you'll get the public view of the iceberg of bureaucratic fascism that is the Kentucky system of implementing Gideon amidst dwindling budgets and little public support. First read what the Kentucky Court of Appeals says in Caldwell, et. al. v. Comm of KY, decided only July 30, 2004, about this 'hero' of yours:

"Budgetary constraints do not constitute a legitimate
excuse for the failure of Mr. Stutsman’s supervisors at OPA to
provide even a minimum level of acceptable oversight for those
attorneys who routinely fail to comply with the rules of
appellate practice. Their conduct with respect to Court orders
imperils the reputation of the Office and severely compromises
the competency of representation that their clients are entitled
to expect." Pg. 4.

"Finally, we reiterate our concern and belief that the
lack of appropriate supervision in the Office of Public Advocacy
has facilitated some of its attorneys in flagrantly disregarding
the rules of appellate procedure and in rendering what may very
well be considered ineffective assistance to its clients." Pg. 17.

A little backdrop, if you please. The case involves what can only be fairly described as wholesale violation of appellate court rules of procedure by the poor bastard who happened to get caught up in this, Stutsman. (BTW, he's a good man with a sterling history in civil and criminal litigation on behalf of the poor.) It all involved missed dates on which to file the Briefs for the convicted, the true starting point of the whole appellate case. Dennis got behind, indeed, some would say overwhelmed, trying desperately to meet impossible deadlines with his overwhelming caseload. He was held in contempt several times. In his defense, Stutsman complained that your hero, Ernie Lewis, was running a slave shop, dumping ever-higher numbers of cases on Dennis and the entire legal workforce, without adequate staffing to meet even national standards. But as the Court says so plainly in this case, too late and too bad.

(Fortunately for the clients in Dennis' cases, our appellate Courts, unlike the Virginia Courts noted in the WaPo series you link to eslewhere herein, don't just take the easy way out and dismiss the appeal. They rightly see that this problem is with the lawyers, not the accused, and they rarely if ever dismiss the appeal, choosing instead to punish the lawyer and permit the appeal to be filed outside the usual time limits).

Dennis Stutsman got fired, paid over $1000.00 in fines, and got referred to the Bar Association for ethics violations, most likely leading to disbarment or suspension. Your 'hero' Ernie Lewis and three of his management crew walked away with no punishment at all, just some straight talk 'bout Lewis' failure, some might say his sacrifice of labor resources, to run a government program to meet the minimal needs of the poor. Less than two weeks after this opinion was made public, Lewis was appointed by a new Governor to another 4 year term running Kentucky's statewide, full-time system of trial, capital, appellate, post-conviction public defenders.

He's had 8 years already. Your 'hero' was appointed and served under a progressive Democratic Southern Governor, and enjoyed a de facto special interest type of adequate funding back then. But we're facing surefire cutbacks here, with no end in sight, like so many public defender agencies around the country. Some folks were actually moved out of Commonwealth-financed nursing homes during the first round of cuts earlier this year. So how did this protege of this liberal Southern Governor manage to get re-appointed by a new Republican Governor, during a pure wave of budget cutting and conservative government? He made a deal to dump the increasing workload on the poor victims that work at the Agency, like Stutsman, knowing that they could never render truly quality representation with these numbers. This way, Lewis keeps his budget underfinanced and his mouth under control. Yeah, he speaks out about high caseloads, but the numbers just keep going up and people like Stutsman keep getting burned, as do the clients.

It's a government Agency fiefdom, run by a public defender who's made an unwholesome deal with a new Republican Governor. The deal is that the Agency will endure obviously inadequate funding, will indeed swear the Agency is functioning within its legislative mandate, despite reduced resources amidst skyrocketing caseloads. In return, your 'hero' got reappointed.

Your hero's first regulation after appointment prohibited any of the workers to speak an ill word, indeed any word, to the public or the press about how the Agency functioned, without prior Management approval. And that's enforced, strictly. Note my Comment is anonymous. I need the job. The money's good. I respect what I do for a living, who I am.

But 'hero' he ain't. This apparatchik gives cover to a legal fiction that is dangerous to indulge, dispite the heady intoxication of that cult of celebrity for the faculty that seems to envelope the experience of attending some of that heavy duty training where you say you met Lewis. It's a kind of 'hero worship', ain't it Skelly? Been there, done that. Fortunately, we can return to the reality of our homes and our practices, and see the truth when it stares us in the face, or maybe even when it looks straight out at us from the unanimous words of a three-judge appellate court. 'Hero he ain't'.

The legal fiction he provides, of course, is that everything is under control, that citizens are secure in their Sixth Amendment rights, despite the increased caseloads. He knows it isn't true. He knows his front-line litigators, of all types, are overwhelmed by numbers, that they are forced to make shortcuts that put them on the edge of ineffectiveness, perhaps like Stutsman, even over the edge. But did you note in the litany of disobeyed appearance and filing orders in the Court's opinion that Lewis, your 'hero', attempted to avoid any personal appearance before the Court to offer any comment on whether Stutsman was overwhelmed, or why? He tried to send a designee to the hearing that resulted in the quoted opinion. The Court wouldn't let him hide, made him appear, and their final orders changed all court procedure for so long as Lewis is running this Agency. The orders from this opinion impose extraordinary steps to force Lewis to be responsible for the function of the office, to be responsible to the indigent, most of whom in this level of their case are citizens in prisons, serving sentences.

If it's this bad at the appellate level, a relatively cushy job since Kentucky doesn't require their appellate lawyers to even personally meet with any client while representing them, how bad do you think it actually is down at the ordinary, everyday felony trial level? It's bad. No, not a 'hero', Skelly. Not an intentional villain, maybe, but not a hero.