1 The Role of the Defense Attorney in a Drug/Recovery Court By Ronald J. Fabian, Esq. PO Box 1363, Jackson MI
2 The Role of the Defense Attorney From Critical Issues for Defense Attorneys in Drug Court. Arguably, no player on the drug court team no judge, prosecuting attorney, probation bti officer or treatment provider has struggled more with his or her identity and often conflicted role more than the defense attorney.
3 Planning the Drug Court One defense attorney or many?
4 Social history Criminal history Addiction history Planning the Drug Court Who is eligible? Application Disqualification Policy Manual Rules Sanctions
5 Confidentiality Attorney/Client HIPPA Probation Reports Code of Federal Regulations
6 The Non adversarial role
7 Non legal Competence What is treatment? Understand the non adversarial role l Ability to recognize the need for treatment Knowledge of treatment
8 Non Legal Competence What are the local programs? Will the client be set up for failure? Is the treatment appropriate for this person? Understand the non adversarial role l Ability to recognize the need for treatment Knowledge of treatment What is best for this client?
9 Ability to Communicate EXPECTATIONS Non legal Competence
10 What is the client s culture? Ability to Communicate Awareness of cultural differences and issues Do not forget the prison culture. What are the client s experiences p which may hinder recovery?)
11 Non Legal Competence Can the client read? Are there language issues? Ability to Communicate Awareness of cultural differences and issues Awareness of disabilities
12 Non Legal Competence Make sure that the client understands the rules. Go over the rules with the client if the staff does not. Have the client sign an acknowledgement that he or she understands d the rules. Ability to Communicate Awareness of cultural differences and issues Awareness of disabilities Understanding the special drug court rules
13 LEGAL COMPETENCE EXPECTATIONS Legal Competence
14 Legal competence Legal Competence Knowledge of the classic adversarial system
15 Legal Competence Advising the client of regular court and drug court. Differences in due process Legal Competence Knowledge of the classic adversarial system Knowledge of the nonadversarial system
16 Legal Competence Choosing tests Challenging gtest results Evidentiary Rules Legal Competence Knowledge of the classic adversarial system Knowledge of the nonadversarial system Application of Sanctions Scientific basis for test results Keeping control of the judge
17 Legal Competence Tension between 12 step and 1 st Amendment 1 st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
18 12 Steps EXPECTATION Steps 3, 5, 6, 7, & 11 Legal Competence specifically state God or a Can clients be forced to attend AA/NA? higher power. Does the self definition of God or the higher power make a difference? Step 12 states [H]aving had a spiritual awakening. AA/NA states that God or the higher power e is self defined
19 Legal Competence The district court thought that the NA program escaped the "religious" label because the twelve steps used phrases like "God, as we understood Him," and because the warden indicated that the concept of God could include the non religious i idea of willpower within the individual. We are unable to agree with this interpretation. A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being. True, that God might be known as Allah to some, or YHWH to others, or the Holy Trinity to still others, but the twelve steps consistently refer to "God, as we understood Him." Kerr v. Farrey & Lind, 95 F 3 rd 472 (1996)
20 Legal Competence Providing Other Options Rational Recovery O'Connor v. California, 855 FS F.Supp. 303.D.Cal.1994), the court found no violation because the AA program was one of a variety of options available to the convicted driver, any of which would satisfy the condition of his probation.
21 Legal Competence What other areas will the client need help with? Can the court appointed defense attorney help the client with these issues? Non drug court legal problems Custody Support Parenting Time
22 Legal competence What standards are there for discharging a participant from the program? Termination from program Involuntary Voluntary Graduation What due process procedures and concerns are there?
23 Extra Functions Review of the drug court Assessing Continuing Education