Smart Defense for Conflict Cases in Kentucky

• In Event: Legal Services for the Indigent: "Smart Defense" Strategies for Creating Fairer and More Effective Justice Systems

Abstract

The Kentucky Department of Public Advocacy (DPA) is the Commonwealth’s single statewide public defender organization. It is responsible for providing legal representation to all indigent persons accused of a crime. As the only statewide public defender organization, DPA must provide legal representation in conflict cases as well. In fiscal year 2014, 7.75% of DPA’s total cases involved a conflict of interest (over 12,000 conflict cases). Because of ethical, logistical and caseload issues most of DPA’s conflict cases are assigned to local private attorneys (the Contractors) as opposed to full-time DPA attorneys employed by DPA in local DPA offices throughout the Commonwealth.
DPA’s current conflict system is dependent on finding Contractors willing to accept conflict cases at well below-market rates. The current conflict system lacks any meaningful oversight by a centralized management system. Conflict Contractors are neither supervised nor systematically reviewed for quality and efficiency according to national standards. DPA’s fee structure is such that it encourages the Contactors to limit the time and effort that they are willing to spend on conflict cases. DPA’s present method of providing conflict counsel falls short of at least two of the “ABA: Ten Principles of a Public Defender Delivery System. The conflict system as it stands is arguably subject to constitutional challenge.

With the Grant funds, DPA has established a Conflict System Improvement Initiative that has introduced independent supervision to conflict cases and provides the Contractors with resources and training not previously available. The Conflict Supervisor provides mentoring, coaching and supervision to Contractors is a designated area of the state in which the need for such assistance was most urgent (the Target Zone). A two- day annual training conference is offered to all Contractors throughout the state.
The Initiative’s local research partner consists of faculty for the Department of Justice Administration from the University of Louisville. Using surveys, court records, self- assessment and interviews, baseline performance date has been gathered regarding the past performance of the Contractors in the Target Zone and outside of the Target Zone. Following the annual training, conferences, and assistance provided to individual Contractors by the Conflict Supervisor practice data will again be collected using similar methods employed to collect the baseline performance data. The collected data will been sent to the research partner for statistical analysis. The statistical analysis will use SPSS 20.0 and consists of evaluation of variance and t-test to determine if the training and supervision had the desired short–term and long-term effects.

Using the data collected and conclusions reached, new standards for supervision and education of the conflict Contractors will be recommended by the Conflict Supervisor. Dependent upon the data collected and statistical analysis outcomes, these standards will address hiring, firing, contracting, case assignments, caseload limits, supervision, education and case evaluation of conflict Contractors. The Conflict Supervisor and DPA Leadership, headed by the Public Advocate, will develop lasting Policies and Procedures addressing the needs and standards associated with conflict Contractors. The results of the Conflict System Initiative will also be provided to the state Legislature to advocate for increased funding is the area of conflict counsel representation.

Author

• John Delaney, Kentucky Department of Public Advocacy