OFFICE OF THE ALTERNATE DEFENSE COUNSEL

Transcription

1 JUDICIAL BRANCH OFFICE OF THE ALTERNATE DEFENSE COUNSEL FISCAL YEAR BUDGET REQUEST Lindy Frolich, Alternate Defense Counsel Director

2 Table of Contents I. Executive Letter 2 II. II. III. IV. Agency Overview Background 4 Statutory Mandate 4 Mission Statement 4 Vision Statement 4 Organizational Chart 5 Objectives and Strategies 6 Core Objectives & Performance measures 7 Prior Year Legislation 17 Hot Issues 20 Cost Savings Measures 22 Cases that may Affect OADC 23 Work Load Indicators 25 Budget Overview Budget Summary Narrative 26 Summary of Budget Changes 28 Budget Change Details by Line Item 29 Schedule 7 - Summary of Supplemental Bills 31 Schedule 8 - Common Policy Summary 32 Salary Adjustments, STD, AED, SAED Request 33 Salary Adjustment Details 34 Long Bill Detail Schedule 2 Summary 35 Long Bill Overview by Line Item 36 Schedule 3 38 Change Requests Schedule 12 - Summary of Change Requests 47 # Case Load Redistribution 48 1

3 Lindy Frolich, Director State of Colorado Office of the Alternate Defense Counsel Denver Office Western Slope Office 1580 Logan Street, # Main Street Denver, Colorado Grand Junction, CO Phone: (303) Phone: (970) Fax: (303) Fax: (970) October 30, 2010 To the Citizens and Legislators of the State of Colorado: Each person accused of a crime has a constitutional right to be represented by counsel at each critical stage of the action against him or her. This right only has meaning if counsel is competent, effective, and zealous. This constitutional right applies not only to the wealthy in the United States, but also to the poor. The Office of the Alternate Defense Counsel (OADC) was created by the Colorado Legislature (C.R.S , et. seq) to provide state wide representation in criminal and juvenile delinquency cases when the Office of the Public Defender has a conflict of interest and therefore cannot ethically represent the indigent defendant. The OADC has become a national model for indigent defense assigned counsel programs. Both the director and deputy director have been invited to other states to present the Colorado model for court-appointed counsel programs, and have worked with other states to initiate similar programs. OADC continues to explore and implement strategies to control case costs while providing effective courtappointed counsel. Today, in every courtroom in Colorado, there are OADC contract lawyers available to accept court appointments. Before the creation of the OADC in 1996, there was no standardized method for court appointments. Lawyers were randomly appointed by the court and payments were administered by the Colorado State Public Defender s Office. An indigent defendant or juvenile delinquent might receive court-appointed counsel with little or no experience, or counsel with significant experience. There was no training, no oversight, and very little accountability. During its formative years the OADC focused on establishing the infrastructure needed to develop a systematic method for appointing counsel. As the agency began formalizing the process of courtappointed counsel, the priority was to insure competent, qualified counsel state wide. Since its inception the agency has strived to provide competent, effective representation for indigent defendants while keeping administrative costs low. From 1996 until 2006, the agency s case load increased from approximately 7,000 cases per year to more than 12,000. Once the infrastructure was well-established, the doors were open to explore ways to become more efficient. In order to keep administrative costs low, and use state resources to pay contractors directly, the OADC began developing its automated payment system, WEBPAY, in FY02. By FY05, all regular contractors were billing on line and continue to do so today. The agency continues to refine this system to further simplify contractor billing while improving data collection. 2

4 In order to continue improving its services, the agency reviews its operations in order to implement changes that increase efficiency and effectiveness as the demand for OADC services continue to increase. Since 2006, in a continuing effort to keep costs low, the OADC has broken new ground in the following areas: Appellate Paralegal - This pilot project that began in 2006, and was fully implemented in 2007 has recently been expanded. The initial project was to control attorney hours spent on perfecting the record on appeal and to streamline the initial appellate process. We have now taken these same skills and efficiencies and applied them to an otherwise unmanageable post-conviction process. We believe that this will lead to significant cost reductions in the next two to three years. Technology The utilization of technology has captured the interest of the OADC contractors. The OADC is in the vanguard of using electronic technology statewide. Our web portal enables us to increase the quality of representation and reduce costs. Examples of our increased use of technology include: A Brief and Motions Bank (2008), electronic discovery distribution (2006), accessing resources electronically (forms, documents, procedures, experts, etc.), electronic records and briefs ( ), and going paperless ( ). Oversight, Accountability, and Efficiency In 2006, the OADC developed and implemented a yearly systematic evaluation process for attorney contractors. This includes input from judicial personnel, face-to-face interviews, billing reviews, and courtroom observation. OADC has now begun contracting with a business analyst to look generally at efficiencies of private practitioners, and reviewing contractor billing. The OADC has more than a decade of data, experience, and institutional wisdom. There can now be a detailed analysis of not just the number and type of cases assigned to the OADC, but the cost, in detail, of each case. This allows the OADC to identify costs that are truly uncontrollable and determine areas that can be impacted by increased efficiencies. The OADC is continuing to provide quality representation at a reasonable cost. With the Colorado State budget shortfall the OADC is doing everything it can to contain the costs of representing indigent defendants in Colorado. We are no longer reimbursing attorneys for their travel mileage and we are restricting the use of experts as much as is constitutionally permissible. Our goal is to continue to explore new ways to reduce the cost of court-appointed counsel representation, while maintaining quality representation. Sincerely, Lindy Frolich Director 3

5 The Office of the Alternate Defense Counsel II. Agency Overview Background The United States and Colorado Constitutions provide every accused person with the right to be represented by counsel in criminal prosecutions. U.S. Const., amend. VI; Colo. Const., art. II, 16. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a possible penalty. The Office of the Alternate Defense Counsel (OADC) was established pursuant to C.R.S , et. seq. as an independent governmental agency of the State of Colorado Judicial Branch. The OADC is funded to provide legal representation for indigent persons in criminal and juvenile delinquency cases in which the State Public Defender has a conflict of interest. Statutory Mandate/Directive The Office of the Alternate Defense Counsel is mandated by statute to "provide to indigent persons accused of crimes, legal services that are commensurate with those available to non-indigents, and conduct the office in accordance with the Colorado Rules of Professional Conduct and with the American Bar Association Standards relating to the administration of criminal justice, the defense function." C.R.S (1) (emphasis added). Mission The mission of the Office of the Alternate Defense Counsel is to provide indigent individuals (adults and juveniles) charged with crimes the best legal representation possible. This representation must uphold the federal and state constitutional and statutory mandates, ethical rules, and nationwide standards of practice for defense lawyers. As a state agency, the OADC strives to achieve this mission by balancing its obligation to the criminally accused and the taxpayers of the State of Colorado. The OADC is committed to insuring that indigent defendants receive the best legal services available. Vision To create an environment that promotes thorough evaluation, training, and technology, such that the Office of the Alternate Defense Counsel is recognized as a national leader in the delivery of competent and cost-effective legal representation to indigent defendants. 4

6 Organizational Chart Judicial Branch Office of the Alternate Defense Counsel Supreme Court Alternate Defense Counsel Commissioners Alternate Defense Counsel Director Lindy Frolich 7.5 FTE $ 24,556,665 Deputy Director Budget Analyst/Controller Appellate Paralegal Evaluator/Training Director Staff Assistant(s) Admin Support July 1,

7 Objectives I. PROVIDE COMPETENT LEGAL REPRESENTATION STATE- WIDE. The OADC contracts with over 400 private lawyers across Colorado to represent indigent defendants where the public defender s office has a conflict of interest. Although each of these lawyers is an independent contractor, the OADC is committed to insuring that the representation is of the highest quality possible. The lawyer contractors utilize investigators, paralegals and experts, who are also independently monitored by the OADC. II. PROVIDE COST-EFFECTIVE LEGAL REPRESENTATION STATE- WIDE. The OADC has no control over the number of criminal cases filed or prosecutors charging decisions. However, the OADC is constantly seeking ways to maintain or reduce the average cost per case. An example of this is the continuation of the Post Conviction Pilot Project that began in FY10. This project is demonstrably reducing the cost of post conviction cases. Strategies Maintain current compensation rates for all contractors. Monitor and contain total hours per case and ancillary costs. Provide statewide training for lawyers, investigators, paralegals and court personnel. Maintain and expand the Brief and Motions Bank. Evaluate, monitor, and audit contractors on an ongoing basis. 6

8 Core Objectives & Performance Measures FY06 FY07 FY08 FY09 FY10 FY11 FY12 Performance Measure A. Actual Actual Actual Actual Actual Appr. Request Maintain current Target $55 $60 $68 $75 $75 $75 $75 compensation rates for contractors. Initial goal set in FY was to $47 $57 $60 $65 Status Actual Status Status reach competitive rates by No funding Quo Quo Quo received for FY of $75 per rate increase hour. The American Bar Association (ABA) standards require that court-appointed attorney compensation be reasonable and adequate. The federal courts have indicated that they believe courts should pay court-appointed attorneys a rate that covers overhead and provides reasonable remuneration. In FY2004, the Joint Budget Committee recommended that the judicial agencies work together to have Court Appointed Counsel hourly rates consistent within the judicial branch. In fiscal year , a judicial department study recommended an hourly rate of $71.00 per hour for attorney contractors. Because of the great disparity between $47 per hour and $71 per hour, the JBC recommended a five year implementation plan to secure a rate of $75 per hour. The agencies have continued to pursue these hourly increases as the general fund has allowed. The OADC is not requesting an hourly rate increase for fiscalyear , due to the current state of the economy, and the state s budget shortfall. As lawyers gain experience they are able to increase their private client base, where they may be paid anywhere from $150 to $350 per hour. This makes them less willing to accept court appointments. In an effort to retain qualified attorneys, the OADC is striving to maintain the current hourly rates by seeking alternative solutions to reduce its budget. These efforts include a contract fee for certain post conviction and appellate cases; curtailing some expert costs, increased monitoring of investigator and paralegal requests; and no longer reimbursing lawyers for travel mileage. However, the disparity between the private hourly rate and the OADC $65 hourly rate continues to deter some attorneys from contracting with the OADC. Evaluation of Prior Year Performance: For the last two fiscal years, the OADC did not request a rate increase due to the uncertainty of the economy and the anticipated state budget shortfalls. The minimal rate increases in prior years has assisted with recruitment and retention of competent lawyers. However, due to the ever increasing costs of overhead, including malpractice insurance, health care, support staff, utilities, etc., it is still not economically feasible for many attorneys to accept cases at the OADC rate. As of January 1, 2010, the federal government raised its court-appointed attorney s 1 hourly rate to $125 per hour; for capital crime (death penalty) cases, the new maximum hourly rate for federal appointments is $178 per hour. 1 Federal court-appointed attorneys are referred to as Criminal Justice Act (CJA) lawyers. 7

9 Key Indicators: State of Colorado Felony Type Hourly Rate Effective 1/1/1991 Hourly Rate Effective 7/1/19991 Hourly Rate Effective 2/1/20031 Hourly Rate Effective 7/1/20031 Hourly Rate Effective 7/1/20061 Hourly Rate Effective 7/1/20071 Hourly Rate Effective 7/1/20081 Death Penalty Felony A Felony B Juv, Misd, DUI, Traffic $40 out court $50 in-court ($41.66) 2 $40 out court $50 in-court ($41.66) 2 $40 out court $50 in-court ($41.66) 2 $40 out court $50 in-court ($41.66) 2 $65 $60 $65 $85 $85 $85 $51 $46 $51 $60 $63 $68 $47 $42 $47 $56 $59 $65 $45 $40 $45 $54 $57 $65 1 In court and out of court are paid at the same rate. 2 Based on the ABA standard (for every 6 hours worked 1 hour is in-court and 5 hours are out-of-court). CJA Rates Hourly Rate Effective 1984 Hourly Rate Effective 1/2000 Hourly Rate Effective 4/2001 Hourly Rate Effective 5/2002 Hourly Rate Effective 1/2006 Hourly Rate Effective 5/2007 Hourly Rate Effective 1/2008 Hourly Rate Effective 3/2009 Hourly Rate Effective 1/2010 Death Penalty 4/24/96 $125 2/1/2005 $160 $163 $166 $170 $175 $178 Non- Capital $40 out court $60 in-court ($43.33) 2 $50 out court $70 in-court ($53.33) 2 $55 out court $75 in-court ($58.33) 2 $90 $92 $94 $100 $110 $125 State of Colorado Attorney General rate-blended rate for Attorney/Paralegal FY2003 FY2004 FY2005 FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 Legal Service Rate $59.80 $60.79 $61.57 $64.45 $67.77 $72.03 $75.10 $75.38 $

10 Performance Measure B. Contain the number of Attorney hours per case. Keep ancillary costs per case to a minimum. FY09 Actual FY10 Actual FY11 Projection FY12 Request Target Attorney hours Actual Target Ancillary $ $ $ $ Actual $ $ Strategy: The OADC reviews each individual contractor bill for reasonableness and accuracy. In an effort to increase the quality and efficiency of the OADC contract attorneys, the agency has implemented and will continue to seek out measures that will reduce billable contractor hours and associated ancillary costs. These measures include: 1. Continuing the in-house appellate project that streamlines the OADC appellate cases from inception through transmittal of the record on appeal. 2. Contracting with document management and paralegal professionals who specialize in organization and distribution of discovery in Colorado Organized Crime Control Act (COCCA) cases, death penalty cases, and other voluminous cases. 3. Attorney access to electronic court records pursuant to HB Expanding and promoting the Brief and Motions bank. 5. Evaluating contractor efficiency and auditing contractor billing. 6. Continuing to expand the Post Conviction pilot project. 7. Curtailing some expert costs. 8. Coordinating cost reduction methods for electronic discovery charged by individual district attorney offices across the state. Unfortunately, discovery costs for many jurisdictions continue to increase. Of particular note is the increase by the Denver District Attorney s office, from $.10 per page to $.50 per page, beginning FY Training paralegals and attorneys for electronic filing of appellate briefs. Evaluation of Prior Year Performance: Discovery: The OADC is continuing to explore cost savings in cases including electronic distribution of discovery. Contracting with document management and paralegal professionals has allowed the OADC to take several thousand pages of paper discovery (costing a minimum of ten cents up to fifty cents per page to reproduce), and reduce it to one or two compact disks, costing very little to reproduce. As one OADC contractor has commented: If it wasn't for the wonderful work of the document management and paralegal professionals in this grand jury case, I 9

11 would be running a freshly sharpened pencil (nobody uses those any more do they?) in one ear and out the other. The DA is using some phone calls at trial that were in a part of the case distant from where I have been concentrating my efforts, and I would not have found them for days if it wasn't for your processing and separating and filing and labeling everything--as it was it took me a couple of hours to bounce around and figure out what was going on...thank YOU FOR ALL YOU DO. In spite of a continued increase in discovery costs charged by each jurisdiction s District Attorney, the agency successfully reduced mandated costs throughout FY2010. This was accomplished by closer scrutiny of expert requests and in-house electronic distribution of discovery on multiple defendant cases. Electronic Access to Court Records: OADC lawyers continue to benefit from access to electronic court records. Appellate and Post-Conviction Cases: The agency has successfully reduced the number of attorney hours per case for appellate and post conviction appointments. This has been accomplished through expanding the agency s in-house paralegal duties to include postconviction cases. Where necessary, this has been augmented with contract services in various jurisdictions. Additionally, the agency has begun paying contract fees in appropriate post-conviction and appellate cases. Death Penalty: The Unitary Appeal Bill requires that a post conviction process be set in motion at the same time as the direct appeal. In actual dollars, this means that at least 2 separate teams of lawyers are working on one case at the same time with an inability to work together because of potential conflict issues. See C.R.S et. seq. and Crim. P The time limits of the Unitary Appeal Bill are very strict, requiring counsel to file an exhaustive post-conviction motion within 150 days of the advisement, and a direct appeal combined with an appeal of any denial of the post-conviction motion within two years of the date of sentencing. This requires more than full-time work by the post conviction and appellate teams. These cases are the most expensive cases in terms of lawyer hours and ancillary costs. There is currently one death penalty case pending on the trial court level. The defendant is represented by OADC contractors. There are two death penalty cases proceeding under the Unitary Appeal Bill, and the defendants are represented by OADC contractors. All of these death penalty cases arise out of prosecutions from the 18 th Judicial District. Evaluation and Auditing of Contractors: The OADC began to audit individual contractors to analyze their billing procedures and patterns. We have discovered inefficiencies in certain areas of practice, and we will be tailoring trainings to address these inefficiencies in order to reduce the number of hours per case. 10

12 Key Workload Indicators: The following table includes trial, appellate, post conviction and special proceedings grouped by felony class type. Actual Actual Actual Actual Actual Actual Estimate Budget FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 Death Penalty Cases Attorney Hours 1,269 1,984 9,371 13,516 20,521 23,972 25,985 25,985 Type A Felonies Cases 1,770 1,922 2,062 2,142 2,065 2,121 2,139 2,097 Attorney Hours 78,498 94,689 94, , , , , ,305 Type B Felonies Cases 6,727 7,539 7,767 6,758 6,374 6,176 6,256 6,166 Attorney Hours 97, , , ,954 97, ,578 98,532 97,115 Adult, Misd, Juv Cases 2,597 2,842 3,244 3,169 4,024 4,284 4,360 4,353 Attorney Hours 21,291 22,221 26,699 23,610 29,141 31,091 31,915 31,864 Total Cases 11,106 12,315 13,089 12,082 12,474 12,594 12,766 12,627 8,500 8,000 7,500 7,000 6,500 6,000 5,500 5,000 4,500 4,000 3,500 3,000 2,500 2,000 1,500 1, ,767 7,539 6,461 6,727 6,758 6,374 6,176 6,256 6,166 2,880 2,842 2,597 1,758 1,782 1,934 2,078 Case Load by Felony Type 4,284 4,360 4,353 4,024 3,244 3,169 2,155 2,134 2,150 2,076 2,108 FY04 FY05 FY06 FY07 FY08 FY09 FY10 Proj FY11 Budget FY12 Class A Felony Class B Felony Juv & Misdemeanor Linear (Class A Felony) Linear (Class B Felony) Linear (Juv & Misdemeanor) 11

13 Performance Measure C. Sponsor X number of trainings annually for attorneys, investigators, paralegals, and court personnel. FY09 Actual FY10 Actual FY11 Approp. FY12 Request Target Actual Strategy: Based on the Performance audit of 2006 the agency recognized the need for additional evaluation, monitoring and training of contractors. Since then the agency has developed three basic components to its training program. 1. Assess and determine the types of training needed for OADC contractors and court personnel. 2. Organize and present continuing legal education training for OADC lawyers, investigators, and paralegals. 3. Facilitate access to trainings by in-person attendance, DVD reproduction, and web broadcasting. Evaluation of Prior Year Performance: The OADC met and exceeded its training program target. The attendance at the trainings surpassed expectations and feedback was excellent. The agency was able to train on a variety of subjects that concern its contractors. For contractors who were unable to attend in-person, most trainings are Webcast and accessible to anyone with a high speed internet connection. DVD reproductions of several training sessions were also created. 12

14 Key Workload Indicators: Death Penalty Training Appellate Training Client-Centered Representation Ethics for Lawyers Veterans Advocacy Trial Practice Institute Juvenile Training Mental Health Training Post Conviction Training Gang Training Courtlink Training Making the Record Effective Representation post-padilla GLBT issues in Domestic Violence Cases Legislative Update Investigator Training Technology for Advocates Sentencing Persuasive Advocacy Forensics Time Management/Efficiency Habitual Criminal Trial Paralegal Training Actual Actual Actual Estimate Budget FY08 FY09 FY10 FY11 FY12 15 hours 20 hours 16 hours 20 hours 16 hours 50 Attendees 50 Attendees 50 Attendees 50 Attendees 50 Attendees 7 hours 54 Attendees 6 hours 120 Attendees 14 hours 170 Attendees 6.5 hours 60 Attendees 25 hours 35 attendees 7 hours 75 Attendees 6 hours 70 Attendees 6 hours 130 Attendees 6 hours 75 Attendees 10 hours 250 Attendees 6 hours 60 Attendees 14 hours 100 Attendees 12 hours 100 Attendees 6 hours 75 Attendees 16 hours 160 Attendees 25 hours 35 Attendees 4 hours 35 Attendees 6 hours 50 Attendees 4 hours 60 Attendees 1.5 hours 40 Attendees 2 hours 30 Attendees 1.5 hours 35 Attendees 14 hours 100 Attendees 6 hours 75 Attendees 25 hours 35 Attendees 7 hours 75 Attendees 6 hours 50 Attendees 12 hours 120 Attendees 2 hours 50 Attendees 6 hours 60 Attendees 8 hours 80 Attendees 16 hours 120 Attendees 6 hours 90 Attendees 6 hours 75 Attendees 12 hours 100 Attendees 12 hours 150 Attendees 6 hours 45 Attendees 6 hours 60 Attendees 6 hours 75 Attendees 6 hours 50 Attendees 6 hours 50 Attendees 13

15 Performance Measure D. FY09 Actual FY10 Actual Maintain and expand web based Brief and Motions Bank. Target Actual Develop format and web structure (50 % of total project) Format and web structure completed 1,416 Motions/Briefs/Re search Materials Increase content/ materials by 20%. Contractors trained in its use. Over 2,300 documents. The bank has been accessed over 2,000 times. FY11 Approp. Maintain and increase content materials by 10%. Ongoing training. FY12 Request Update and maintain bank, and link to C.R.S. and C.R.Crim. P. Strategy: In an effort to continue increasing the quality and efficiency of OADC contractors, the agency recognized the need for developing a Brief and Motions Bank. The agency created the infrastructure for the Brief and Motions Bank and it interfaces with the OADC web site. The agency continues to maintain and expand the Brief and Motions Bank in the following ways: 1. Continue to gather briefs and motions and upload to the Bank. 2. Expand to include transcripts of experts and police officers. 3. Train contractors to access and use the Brief and Motions Bank in order to increase contractor use of this valuable tool. 4. Upload court opinions as they are issued. 5. Insure regular updating and indexing of content. In FY2011 and FY2012, the agency will add a section on criminal jury instructions that will be linked to the table of contents by subject matter. In addition, links will be created in the table of contents that will allow the attorneys to retrieve the text of the most recent Colorado Revised Statutes (C.R.S.) or Rules of Criminal Procedure (C.R. Crim. P.) on any issue. Evaluation of Prior Year Performance: The Brief & Motions Bank was launched early in 2009 with about 250 documents. The Bank was created with two different search capabilities. A contractor can enter search words or phrases, much like a Google search which will then retrieve and place on a list any document within the Bank containing the word or phrase. The second search capability is called the browse feature. This is a comprehensive Table of Contents where some of the best briefs and motions on a given subject can be automatically retrieved by clicking on a subject matter heading in the Table of Contents. 14

16 The OADC started constructing its Brief and Motions Bank in FY2008 to allow hundreds of OADC contractors in the OADC statewide network to share legal research and written materials. The idea was to prevent duplicative billing as each attorney re-creates the wheel for a similar motion or engages in the same research in different parts of the state. During FY2010, the Bank has grown to over 2,300 documents, including more than 800 motions and 200 briefs. The most significant enhancement now allows access to the bank via handheld devices, such as, the I-phone. This gives each contractor quick access to relevant legal research everywhere, including in court. The Bank was expanded to include a section specific to juvenile law practitioners. This new juvenile law section includes over 425 motions and briefs. The Bank now also includes every opinion published by both the Colorado Supreme Court and the Colorado Court of Appeals in the last 12 months. The opinions are linked to the browsing table of contents feature so that an attorney can retrieve the most current case law by simply clicking on a subject heading again this can be done via hand held device in court. As one OADC contractor commented: A few weeks ago I was preparing motions in a case involving a grand jury, and I haven't done any grand jury motions in years...i thought I had better check the NACDL (National Association of Criminal Defense Lawyers) brief bank because all those lawyers active in the national organization are so smart and prolific...their brief bank doesn't hold a candle to what ADC has put together...i was shocked...and I found the ADC motions bank really helpful and the index was a great way to review what motions might be filed... Key Workload Indicators: As noted above. 15

17 Performance Measure E. Interview contract applicants; evaluate contractors prior to contract renewal date, and ongoing performance monitoring. Contract with investigators. FY09 Actual FY10 Actual FY11 Approp. FY12 Request Target Attorney 100% 100% 100% 100% Actual 99% 99% Target Investigator 50% 50% 100% 100% Actual 50% 25% Strategy: Pursuant to the state performance audit of 2006, the OADC began a process to insure that all OADC lawyers and investigators are under a current contract. This process includes interviewing and evaluating all attorney contractors and contracting with investigators. To accomplish this, the agency has developed 7 basic components: 1. Maintain a tracking system with all attorney and investigator vendors including contract renewal dates. 2. Contact and request renewal applications from attorney contractors, interview and evaluate contractor, and renew contract if appropriate. 3. Receive feedback from judicial districts concerning OADC lawyers. 4. Verify attorney status with the Office of Attorney Regulation. 5. Monitor and evaluate lawyer court room practices. 6. Request applications from current investigators and secure a current contract. Contact investigators regarding contract renewal and renew when appropriate. 7. Conduct audit and time-efficiency studies of select OADC contract attorneys. Evaluation of Prior Year Performance: As the numbers above indicate, the agency has essentially interviewed and approved or denied contracts with all contract attorneys. All attorneys are on a contract renewal cycle. The agency also has a procedure in place to process applications from new attorneys. In FY09, the OADC began the process of contracting with investigators, and the majority of investigators are now under contract. Key Workload Indicators: Lawyer Contracts (New/Renewed) Actual Actual Actual Estimate Budget FY08 FY09 FY10 FY11 FY Investigator Contracts Formal Complaints (against OADC contract Lawyers)

18 Prior Year Legislation Commission on Criminal and Juvenile Justice Reform (CCJJ) The results of the CCJJ for legislative year 2010 have not provided the relief from oppressive and long prison sentences that the indigent defense community had hoped. Although there were some minor changes in various crimes and sentencing options, it is unclear what the fiscal impact of these legislative changes will be on the OADC budget. Legislative Changes from the 2010 legislative session The following chart outlines the legislative changes that occurred during the 2010 legislative session relating to criminal law. This is being provided for informational purposes. TITLE/SUBJECT BILL # DESCRIPTION OF CHANGE/LEGAL ADDITION Two Prior Felony Rule HB 1338 Changes rule to require the District Attorney s (DA) consent to probation in instance of two prior felonies ONLY IF a prior is for 1 st or 2 nd Deg. Murder, Manslaughter, 1 st or 2 nd Deg. Assault, 1 st or 2 nd Deg. Kidnap, Sex Offense, 1 st Deg. Arson, 1 st or 2 nd Deg. Burglary, Robbery, Agg. Robbery, or a felony Controlled Substances ; ; ; Escapes (1) and (5) (1.5) Public Indecency HB 1352 HB 1373 HB 1334 against a child Use of any Controlled Substance is an M-2 (eliminates the use deferred); Moves possession out of and creates a new subsection related to possession; adds Ketamine to ; Possession of a Schedule I or II drug, Flunitrazepam or Ketamine, EXCLUDING METHAMPHETAMINE: 4 g. or less is an F-6; more than 4 g. is an F-4. Possession of Methamphetamine: 2 g. or less is an F-6; more than 2 g. is an F-4. Possession of Schedule III, IV or V (except Flunitrazepam & Ketamine): M-1. Adds to : (7) distribution to a person under 18 by a person 18 or over and at least 2 years older than the purchaser is a special offender crime. Adds an exception to the attempt escape statute that provides that if the person is serving a direct sentence to community corrections or is an ISP (parole) client, it is an F-5 rather than an F-4. Concurrent or consecutive sentencing is discretionary. The provisions regarding minimums, probation and suspended sentences apply to this exception. Adds a provision to the concurrent and consecutive statue that allows the judge to sentence concurrently to the underlying offense if the escape occurs from a direct sentence to community corrections or on intensive supervision parole. Deletes the subsection regarding deviant sexual intercourse. Specifies lewd exposure must be of an intimate part, not including the genitals, with intent to arouse or satisfy sexual desire. Changes an act of masturbation to knowing exposure of genitals under circumstances likely to cause affront or alarm. Public Indecency is a petty offense, except if it is committed subsequent to the affront or alarm section (or violation of any 17

19 TITLE/SUBJECT BILL # DESCRIPTION OF CHANGE/LEGAL ADDITION comparable offense from any other state or the feds). Adds Public Indecency (2 nd offense in 5 years or 3 rd offense) to the list of sex offenses. Indecent Exposure DUI/DWAI HB 1334 HB 1347 Adds language that provides that genital exposure that will cause affront or alarm must also be with the intent to arouse or satisfy sexual desire of any person. Moves masturbation from Public Indecency and requires circumstances likely to cause affront or alarm. Defines masturbation. Change to the law so penalty is determined by number of convictions. First offense: DUI-- 5 days minimum mandatory and one year monitored abstinence required. DWAI 2 days minimum mandatory. (These sentences may be suspended See ). For offenses where there is a BAC above.20, the court must impose 10 days jail. Second offense: Within 5 years 10 days minimum. Must be served consecutively without earned or good time and without trustee status. Shall receive credit for time served. Work release allowed only if available in county, and client already has job or education in place. Outside of five years 10 days minimum, served consecutively with same restrictions EXCEPT that alternative programs, such as general work release and home detention are allowable. Third and Subsequent offenses: 60 days jail mandatory, served consecutively, no good or earned time or trustee status, shall receive credit for time served, sentencing alternatives allowed, but not for the first 60 days of the sentence. Work release only allowed on the first 60 days if available in county, and client already has job or education in place. They must also be participating in Level II treatment program. Creates a drug court model of incarceration for probation violations. DUR Juvenile Direct File HB 1090 HB 1413 Eliminates the 5 day minimum mandatory sentence for nonalcohol related DUR Repealed and reenacted the statute. The age for direct file increased from 14 to 16 years old for certain offenses. Allows direct file for 14 & 15 year olds accused of Murder 1 or 2; a sex offense pursuant to (5)(a) (defendant aided by one or more person, serious bodily injury, or deadly weapon, real or simulated) or that is a crime of violence. ( ); Sex assault on a child (with a prior felony adjudication in the past two years; or any felony sex offense if they are determined to be a habitual juvenile offender. Allows direct file for a child 14 or older if they have been direct filed or transferred to adult court in the past, except that if the prior results in acquittal, the subsequent case SHALL be sent back to juvenile court; AND if the conviction in the prior case results in a conviction for a charge that could not have been direct filed originally, the subsequent case MAY be sent back to juvenile court. The new law requires the DA to consider the criteria that the court must consider for transfer. The statute lists the criteria in (3)(a). After considering the factors, the DA must file with the court 18

20 TITLE/SUBJECT BILL # DESCRIPTION OF CHANGE/LEGAL ADDITION and counsel or the juvenile a notice that they are considering direct file. Juvenile will then be advised of right to counsel within 48 hours. After notice filed, the juvenile has 14 days to provide information negating the factors. Juvenile may not plead guilty in juvenile court during the 14 day period without DA consent to plea. Encourages DA to meet with the juvenile s counsel to discuss factors. This 14 day requirement does not apply to murder or eligible sex offenses. When charges are direct filed, DA must also file a written statement of the factors upon which the decision to direct file was made. Sets forth sentencing options, including allowing Youth Offender System (YOS) sentencing except for F-1s, some sex offenses, clients who have been sentenced to YOS/Department of Corrections (DOC) in the past. Allows YOS sentencing for F-2s if the original charge was an F-1. Money Laundering Invasion of Privacy for sexual gratification/ Eavesdropping HB 1081 Moves this to Offenses Involving Fraud. Adds Money Laundering to the definition of Racketeering activity in the COCCA statutes. SB 128 Adds a new crime. Knowingly observes or photos another person s intimate parts without consent and for sexual gratification is an M-1, extraordinary risk crime. It becomes an F-6 (extraordinary risk) if there is a prior for unlawful sexual behavior or if the person photographed is under 15 and the defendant. is four years or more older than the subject. Adds live feed to Invasion of Privacy. Reduces Eavesdropping from an F-6 to an M-1. Clarifies crimes for which the court must give a consent jury instruction and includes new crime. Adds new crime to definition of unlawful sexual behavior and sex offense. Human Trafficking SB 140 Repeals (adults) and moves it to new section. Repeals (children) and moves to new section. Repeals (involuntary servitude) and moves to a new section. Adds all of these crimes to the definition of Racketeering activity. Civil lawsuits against ADC Lawyers 10SB-63 limits civil liability for attorneys who contract with the Office of the Alternate Defense Counsel. (Eff. 8/11/10) Temporary modification to the contributions rates for Public Employee s Retirement Association 10SB-145. For the state s fiscal year , the employer rate is reduced 2.5%, from 10.15% to 7.65% and the member rate is increased 2.5%, resulting in a new employee contribution rate of 10.5%. 19

21 HOT ISSUES DEATH PENALTY: Unitary Review in Death Penalty Cases (Unitary Appeal Bill): These statutes and rules apply to all death penalty cases. They require that a post conviction process be set in motion at the same time as the direct appeal. In actual dollars, this means that at least 2 separate teams of lawyers are working on one case at the same time with an inability to work together because of potential conflict issues. See C.R.S et. seq. and Crim. P The time limits of the Unitary Appeal Bill are very strict, forcing post-conviction counsel to file an exhaustive post-conviction motion within 150 days of the advisement, and appellate counsel to file a unitary appeal within two years of the sentence being imposed. This requires more than full-time work by the post conviction lawyers. The OADC will be responsible for assigning counsel to all cases where a death sentence is imposed, including those defendants represented by the Public Defender s Office, unless the defendant waives the right to raise issues of ineffective assistance of counsel. There is currently one death penalty case pending on the trial court level. The defendant is represented by OADC contractors. There are two death penalty cases proceeding under the Unitary Appeal Bill, and the defendants are represented by OADC contractors. DNA TESTING: Due to advances in DNA technology, there has been a steady increase in DNA testing in criminal cases. The nationwide movement toward permanent storage of physical evidence will result in even more DNA testing. Even as DNA analysis becomes more competitive it remains very expensive. The OADC is working toward having criminal defense lawyers who are specially trained in DNA science involved in cases that include DNA testing rather than training every lawyer in DNA testing procedures and outcomes. COLD HIT CASES: This describes cases that are unresolved, often for years or decades, until DNA samples are submitted to a nationwide database of DNA samples collected from persons arrested and/or convicted of crimes. When a match is found, charges are filed. Often the only evidence in the case is the DNA match. This database is steadily increasing with the addition of categories of persons required to submit to DNA testing. Legislation further extended DNA testing requirements to all adults arrested for or charged with a felony. It appears that the number of these cases will steadily increase. These cases depend heavily on expert testimony and are therefore expensive. 20

22 ACTUAL INNOCENCE: Since the 2008 case of Tim Masters, the OADC has continued to have a procedure in place to deal with Actual Innocence claims, understanding that these cases are time and expert intensive and therefore expensive. The OADC applied for a federal DNA grant to provide funds for postconviction DNA testing in actual innocence cases. Unfortunately, this grant request was denied, however the Colorado Attorney General did receive a $1.2 million grant for post-conviction DNA testing and the OADC is referring its cases to the Attorney General s office for DNA testing. To date, no OADC cases have been accepted for DNA testing. LOCAL AND STATEWIDE GRAND JURY INDICTMENTS AND MULTIPLE CO- DEFENDANT CASES: The use of local and statewide grand jury indictments is a continuing statewide trend that is now in its sixth year. In addition, OADC contractors are being appointed to more cases involving multiple co-defendants. OADC has been working across the state with local prosecutors, judges and clerks to encourage the sharing of as much information as is lawful about imminent indictments or filings to efficiently and effectively appoint counsel. OADC has a contract paralegal who has a list of qualified lawyers, and works with the clerks, calls the lawyers, and makes the arrangements for timely appointment of counsel. OADC also has a contract document manager who specializes in organizing and distributing electronic discovery in complex cases. This includes transitioning from paper to electronic discovery. In this process several thousand pages of paper discovery (costing a minimum of ten cents per page to reproduce), becomes one or two compact disks, costing very little to reproduce. The OADC is continuing to explore cost saving methods for these cases. IMMIGRATION: The number of post conviction cases due to inadequate advisement regarding immigration consequences has increased, especially in light of Padilla v. Kentucky, 379 U.S. 759, 130 S.Ct (March 31, 2010) The Padilla case requires criminal defense lawyers to properly advise defendants of the possible immigration consequences related to their case. Immigration law is highly technical and specialized. In addition it is constantly changing. Judges, prosecutors and defense lawyers are inadequately prepared to keep abreast of all the immigration consequences in criminal cases. The OADC is utilizing a criminal defense lawyer who specializes in immigration law to consult with OADC contractors to insure compliance with Padilla. The OADC is also working in conjunction with the Colorado Criminal Defense Bar to provide statewide training in this area. INCREASED HABITUAL CRIMINAL FILINGS: There continues to be an increase in the filing of habitual criminal counts by elected prosecutors around the state. This makes cases more expensive by requiring an increase in attorney hours. In addition, the Public Defender s office often has a conflict of interest in attacking a prior conviction, thus requiring that an OADC lawyer be appointed specifically to raise any and all claims as to the prior conviction. 21

23 COST SAVING MEASURES PAPERLESS DISCOVERY: The OADC is using many forms of technology to better manage discovery. This technology is utilized in state wide grand jury cases, Colorado Organized Crime Control Act cases, and other large complex cases. However, in most other cases, district attorney offices across the state dictate how and in what form discovery is disseminated and what price is charged for this discovery. Just recently, a small number of district attorney s offices have proposed changing to paperless discovery. These projects are in the planning or pilot stages but hopefully they will decrease the cost of discovery for all appointed counsel. MILEAGE SAVINGS: In July, 2009, the OADC changed its payment policy to only reimburse investigators and paralegals for case work mileage and not attorneys. The agency saved $383,000 in FY2010 with this change. The agency is continuing this policy in FY2011 and FY2012. It is anticipated that this administrative policy change will save the state approximately $410,000 in each fiscal year. POST-CONVICTION (35(c)) PROJECT: In August 2009, the OADC launched a pilot project aimed at reducing the cost of post conviction cases. Although it is still early to calculate the actual cost savings from this project, it appears that this project will decrease the cost of post-conviction cases. This project has several components: 1. Once the OADC is contacted by the court regarding a post-conviction appointment, arrangements are made to scan the court file to a pdf document. 2. The OADC in-house paralegal creates an electronic index of the court record. 3. The electronic record is then reviewed and triaged based on specific guidelines. 4. When appropriate the case is then contracted out for a flat fee rather than an hourly rate using a short list of ADC contractors who specialize in post conviction work. 22

24 CASES THAT MAY AFFECT OADC Rothgery v. Gillespie County, Texas, 128 S. Ct U.S., (June 23, 2008). In Rothgery, the United States Supreme Court held that a criminal defendant's initial appearance before a judge marks the beginning of the proceedings against him and triggers the defendant's Sixth Amendment right to counsel whether or not a prosecutor is aware of or involved in that appearance. Padilla v. Kentucky, 397 U.S. 759, 130 S.Ct (March 31, 2010) A habeas petitioner can bring a claim for ineffective assistance of counsel where he would not have pled guilty but for the failure of his attorney to advise him of the immigration consequences of the plea. An attorney s duties include advising a defendant about the collateral consequences of the plea. The attorney's failure to advise a non-citizen defendant of the immigration consequences of pleading guilty to a crime can constitute ineffective assistance of counsel under the Sixth Amendment. Graham v. Florida, U.S., 130 S.Ct (March 17, 2010) The Eighth Amendment prohibits imposition of a life without parole (LWOP) sentence on juvenile offender who did not commit a homicide. States are not required to release juvenile offenders during their lifetime; however, when juvenile non-homicide offenders are sentenced to LWOP, states must provide a meaningful opportunity for release. People v. Bergerud, 223 P.3d 686 (Colo. Jan. 11, 2010). Counsel cannot concede defendant s guilt (in opening statement) over his express objection, because this compromises his right to testify, and waives his right against self-incrimination. Counsel usurps a defendant s right to testify if they tell the defendant that they plan to completely contradict his testimony, and/or that they plan to present evidence specifically to undermine the believability of his testimony. People v. Shari, 204 P.3d 453 (Colo. March 30, 2009) The Colorado Supreme Court reversed the trial court s order disqualifying the public defender office. The Court found that the public defender s office does not automatically have an imputed conflict whenever a state s witness was represented by a public defender office in the past. The Court further found that even if there is a conflict, it is waivable. Silva v. People, 156 P.3d 1164 (Colo. April 23, 2007). Reversing summary denial of postconviction motion without a hearing. The Colorado Supreme Court holds that defendants have a limited statutory right to post-conviction counsel, and to effective assistance of post-conviction counsel. The right is triggered by a determination by both the post-conviction court and the state public defender's office finding that a defendant's Crim. P. 35(c) motion has arguable merit. Defendant was also entitled to an evidentiary hearing to determine whether he was justifiably excused for failing to file his second pro se post-conviction motion within 3 years of the mandate on direct appeal. Melendez-Diaz v. Massachusetts, 129 S.Ct (June 25, 2009). Applying its prior pronouncements in Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court concluded that the analysts affidavits/certificates were in fact testimonial, and that the analysts, therefore, were witnesses subject to confrontation and cross-examination under the Sixth Amendment. Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court case which ruled that the Confrontation Clause of the Sixth Amendment required an opportunity to cross-examine 23

25 before testimonial hearsay could be admitted against a criminal defendant. Its impact on state cases continues, on both the trial court and appellate levels. Richter v. Hickman 578 F.3d 944 (9 th Cir. 2009) Certioran granted by Harrington v. Richter, 130 S. Ct (2010). The 9 th circuit granted a California defendant s petitions alleging ineffective assistance of counsel based on counsel s failure to consult experts in the field of serology and blood spatter. The Court opined that Strickland v. Washington, 466 U.S. 668 (1984) requires counsel to engage experts at various stages of the case and adjust the theory of the case accordingly. Certioran granted by the US Supreme Court and the case was argued on October12,

26 Work Load Indicators Additional information not previously noted: Total Case Load and Case Type: Actual Actual Actual Actual Actual Actual Estimate Budget FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 Trial Case Types: F1 - Death Penalty F1 - W/O Death Penalty F2-F F4-F Juvenile Misd DUI Traffic Other * Total Trial Cases 9,443 10,467 11,066 9,955 10,168 10,304 10,396 10,306 Appeal Cases Post Conviction Cases Special Proceeding ,049 1,040 1,097 1,079 Total Cases 11,106 12,315 13,089 12,082 12,474 12,594 12,766 12,627 % Inc/(Dec) Prior Year.1% 10.9% 6.3% (7.7%) 3.2%.9% 1.37% (1.09%) *Note Adult probation, 35b, and 35c #'s are included in Other Total Case Payment Transactions Processed by the Agency: Actual FY04 Actual FY05 Actual FY06 Actual FY07 Actual FY08 Actual FY09 Actual FY10 Estimate FY11 Budget FY12 Case Load 11,083 11,103 12,314 13,089 12,082 12,474 12,594 12,766 12,627 Payment Transactions 21,698 25,527 29,601 34,795 38,390 41,524 42,819 44,426 44,573 Avg. Case Transactions

27 II. BUDGET OVERVIEW OFFICE OF THE ALTERNATE DEFENSE COUNSEL Fiscal Year 2012 Budget Summary Narrative FY Total Budget Appropriation 6.8% 3.8% 89.4% Conflict Contractors Mandated Costs Admin, OH & Common Policy The total FY budget request is for $24,100,483 general funds, and $20,000 cash funds. This represents a decrease of 1.8% of general funds from the FY appropriation, in spite of an increase in common policy items. The Office of the Alternate Defense Counsel (OADC) has made every attempt for fiscal year to prepare a budget request to the Joint Budget Committee that accurately and completely reflects our agency s operations. During this economic down turn, the OADC has worked diligently to contain costs that it does have control over while striving to meet its performance measures and insure the continued provision of cost effective and quality representation to indigent defendants. The agency has implemented the following cost-saving measures starting in FY through the current FY budget request, resulting in a budget reduction of approximately 3.45 percent: The agency is no longer reimbursing attorney travel mileage; The agency has implemented a post conviction pilot project; Implementing and training on electronic use of documents; Restricting the use of experts as much as is constitutionally permissible; Unfortunately, these reductions are not enough to offset the high cost of death penalty representation. The OADC has long suggested to the JBC that, although we cannot control the caseload or capital filings, we can work to make the agency and contractors more cost effective through structured efficiency efforts. 26