HOUSE COMMITTEE ON JUDICIARY

 

 

February 13, 2003   Hearing Room 357

1:00 P.M. Tapes  34 - 37

 

MEMBERS PRESENT:            Rep. Max Williams, Chair

Rep. Robert Ackerman, Vice-Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Jeff Barker

Rep. Bob Jenson

Rep. Jerry Krummel

Rep. Greg Macpherson

Rep. Floyd Prozanski

Rep. Lane Shetterly

 

 

STAFF PRESENT:                  Bill Taylor, Counsel

Nancy Massee, Committee Assistant

 

MEASURE/ISSUES HEARD:            Informational Meeting

                                                Oversight Hearing of the Extraordinary Expenses

                                                Associated with Indigent Defense

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

Tape 34, A

006

Chair Max Williams

Opens meeting at 1:10 p.m.  Welcomes audience.  Makes opening remarks regarding extraordinary indigent defense costs and submits January 13, 2003 letter to all district attorneys in Oregon (EXHIBIT A).

INFORMATIONAL MEETING

144

Bill Taylor

Committee Counsel.  Describes documents that the committee has for review. 

162

Ann Christian

Director, Indigent Defense Services Division.  State Court Administrator’s Office. Submits testimony and gives overview of the Division’s work (EXHIBIT B). Gives examples of extraordinary expenses. Describes who authorizes extraordinary expenses in indigent cases.   

280

Christian

Continues presentation on expenses.  Explains how extraordinary expenses are reviewed and pre-authorized. Explains reviewing the billing when responsibility is assumed.

335

Christian

Explains $75 million in costs related to indigent cases. 

TAPE 35, A

011

Christian

Continues explaining how decisions are made in spending on indigent defense.

015

Rep. Prozanski

Asks when the authorization took place.

025

Christian

Answers that prior to 1995 the statute did not say authorization.  A policy statement required it. 

037

Rep. Ackerman

Asks about “open authorization” and if there are any caps on hourly rates?

045

Christian

Responds that the policy statement provides certain rates.  The standard questions to ask of an expenditure:  is it necessary and is the amount reasonable? With regard to particular case types there are no caps.  Multnomah County has some. Policy guidelines determine hourly rates.

075

Gary Williams

District Attorney, Crook County.  President, Oregon District Attorneys Association (ODAA). Describes the district attorney’s role and submits testimony on indigent defense extraordinary expenses (EXHIBIT C).

132

Joshua Marquis

District Attorney, Clatsop County. Prosecuting attorney in State v. Jones.   Submits testimony and describes the cost issues in that case in Lincoln County (EXHIBIT D).

250

Michele Longo Eder

Lincoln County Attorney Submits testimony and describes her background in representing clients for the past 24 years (EXHIBIT E).  Describes the Jones case in which she was the defendant Sandra Jones’ attorney.

395

Chair Williams

Narrows focus of witnesses to extraordinary costs of indigent defense.

399

Vice Chair Ackerman

Comments on his personal experience in trial court cases.  Discusses remedies such as pre-trial conference with the judge to resolve the cases. 

431

Eder

Responds she is not informed of present criminal defense practices. However, there is time set for discovery and plea negotiation before pre-trial conference. States some investigations cannot be accomplished that quickly.

TAPE 34, B

048

Marquis

Supports settlement conferences between the court and attorneys.

058

Rep. Shetterly

Refers to substantial costs mentioned in Eder letter.

066

Marquis

Replies there was great rancor in the case. Relates what happened to Judge Hass. 

075

Vice Chair Anderson

Asks if the defense costs can be released.

082

Eder

Replies that information is not revealed until all appeals are concluded.

088

Vice Chair Anderson

Asks about defense and prosecution costs.

090

Eder

Replies that prosecution costs were substantially greater than the defense costs.   

110

Marquis

Responds in the Michael Jones case, the indigent defense cost was great.

124

Eder

Comments that the conduct of the prosecutors plays a significant role in costs of indigent defense.

139

Mike Dugan

Deschutes County District Attorney.   Describes the 1987 case State v. Guzek.

154

Joshua Marquis

Trial prosecutor in Guzek 2 and 3. Guzek is still under appeal. Discusses costs of psychologists that were called.Describes how a witness was flown from London at a great cost to support the defendant.

211

Duane McCabe

Defense attorney, Bend, Oregon. Submits expenses from the Guzek case (EXHIBIT F). Describes how death penalty cases are conducted.  Describes the needs of the defense side in trial. States there have been three trials on the Guzek case; each case with a different set of attorneys.  Describes the witnesses in the case.  Death penalty clients usually do not testify.  Explains that the witness flown in from London was paid for by the defense because the witness was not used.

310

Rep. Barker

Asks if the check was sent after the newspaper article.

320

McCabe

Replies afterwards.

336

Rep. Krummel

Asks about customary fees for psychologists.

330

McCabe

Answers there is not a customary fee. In indigent cases the expert witness usually charges less.

363

Vice Chair Anderson

Asks if it is normal to have seven different counsels on a case?

368

McCabe

Answers in a re-trial it is customary to have new attorneys.

375

Vice Chair Ackerman

Asks if upon authorization are there caps on an ultimate fee.

384

McCabe

Answers there is a cap on fees.  It is based on hourly charge.

402

Marquis

Describes the State v. Harned murder case in Astoria in 2000. States that a social worker visited the teenage Harned 48 times in jail and sat next to him during the trial to settle him down.

439

Rep. Shetterly

Comments how some defendants are very disruptive.  

TAPE 35, B

040

Marquis

Describes how the prosecution does not have unlimited means in these cases and expert witnesses have never cost more than $2,000 in a case. States that the prosecution is consistently outspent by the defense.

067

Laura Graser

Defense lawyer.  Represented Harned who was a mentally disturbed 16-year-old at the time.  States that Harned’s behavioral problems caused the need for the social workers’ presence. Describes Harned’s violence in the jail.

135

Joshua Marquis

Prosecutor in State v. Simpkins (1998). Clatsop County DA. Describes Garner and Simpkins in the murder of a woman on a boat.  Simpkins was acquitted. The discovery phase can be expensive. An example of expert witness costs are shown by Dr. Cunningham’s notes. Describes the boat model built by the defense at a great expense and was not used. Describes witness Mark Nelson, who provided a telephone survey at the cost of $9,000 for the purpose of changing venue.     

315

Marquis

Continues describing the costs of indigent defense in Simpkins.  Refers to the “team” of lawyers and investigators and their cost. Refers to the cost of “associates.”

341

Peter Fahy

Benton County attorney. Formerly DDA Lincoln County. Was the defense attorney in Simpkins. Explains the boat model that was built at a cost to defense.  Submits testimony and (EXHIBIT G).  

TAPE 36, A

017

Fahy

Continues describing cost of indigent defense in the Simpkins case.

050

Fahy

Describes why the telephone survey was needed. Clatsop County residents’ opinions were needed to determine a change of venue. Explains the cost of $5,000 to have the boat model built and it was not used.

142

Fahy

Describes an expert witness, a criminologist, called in from Seattle and that cost. A forensic scientist was needed in this case.  

178

Vice Chair  Anderson

Asks if pictures or video of the boat model could have been used in court, instead of the model.

190

Fahy

Answers that the close quarters of the cabin needed to be portrayed by the model and it was felt this could not be done with pictures.  The authorization was by Ms. Christian.

208

Rep. Krummel

Asks what is a mitigation specialist. 

213

Marquis

Says Mr. Frasier from Coos Bay is not available tomorrow.

228

Chair Williams

Says the Gannon case will be done today since some witnesses are not available tomorrow.

244

Paul Frasier

Chief Deputy District Attorney, Coos County. Prosecutor in the Gannon case.  Found out experts were called in by the defense only a week before trial. Explains a “sleep study” which was authorized. Did not use the sleep study which cost $1,500. There was also a “confession” expert called in. Questions the cost of experts.  

321

Christian

(Alan Goldman, attorney for Gannon, is absent.) Christian authorized expenses in this case. Describes the affidavit provided to her supporting the possibility of a sleep disorder in the defendant.

TAPE 37, A

008

Edmond Caleb

Klamath County DA. Prosecutor  State v. Manzo-Hernandez (1992) Hernandez was a drug dealer who was accused of murdering a state policeman. Cost of Hernandez case was $996,000. The mitigation and aggravation experts cost a total of $170,000; more extraordinary expenses were for psychological, $23,000; forensic $18,000, and other experts which came to $44,000.  Special interpreters were hired, but Hernandez spoke English very well. 

052

Duane McCabe

Deschutes County. Indigent Defense Lawyer. Explains the extraordinary expenses incurred by the defense. Testifies Hernandez spoke some English but an interpreter was needed. Describes complicating factors; some witnesses who were involved with police.  Describes mitigation experts called. Because the client was a non-citizen; background and family investigation was done out of the area and in Mexico. Intercultural cases must be tried in detail to avoid possible mistrials.

163

Caleb

Explains how the defense costs were affected by Justice Department.

188

Vice Chair Anderson

Asks what ways they suggest in cutting expenses in indigent defense cases.

180

Caleb

Explains Klamath County’s handling of cases. Suggests negotiating a budget with the counties for indigent defense cases other than death penalty.

198

McCabe

Suggests the expenses would not be so high now that the Mexican Consulate has a Portland office and they can now pick up some of the investigations. Hernandez was a unique case.

239

Bill Taylor

Committee Counsel. Asks what the hourly rate was for investigators.

242

McCabe

Answers, probably $25 an hour at that time.

233

Chair Williams

Thanks participants in the hearing.  States that tomorrow the remaining cases will be discussed along with more disclosure on authorization and payment from the state.

288

Chair Williams

Adjourns meeting at 3:45 p.m.

 

 

EXHIBIT SUMMARY

 

A – Informational, letter by Rep. Max Williams, 2 pp

B – Informational, written testimony and audit (1995), Ann Christian, 55 pp

C – Informational, written testimony, Gary Williams,  1 p

D – Informational, written testimony and letters, Joshua Marquis, 21 pp

E – Informational, letter from Michele Eder, 4 pp

F – Informational, letter and receipt, Duanne McCabe, 3 pp

G – Informational, letter from Peter Fahy, 7 pp