President's Page

Jan 22, 2008

Giant Steps

When I first began to practice law fifteen years ago in Nogales, Arizona, serving primarily Mexican National clientele, the first important phrase I learned in Spanish was this: "Pues, vamos aver." Roughly translated this means, "We shall see what we shall see." While I won't put into print the second phrase I learned, both applied to the past year I was privileged to work as President of this historic organization.

Coming into the term, I was well aware of the challenges faced by defense attorneys and our clients across the state, and I set out to create a plan, a road map to what I hoped to accomplish during this year and beyond. With the help of many people, we put together a Long Term Plan to address our organizational priorities in both the short and long terms. Some of our goals, such as the abolition of capital punishment, may not happen in one year or even two; nevertheless, we as an organization made significant strides toward educating the public about the follies of both the punishment and the process we use to inflict it. Other goals were more immediately achievable, and I took a moment this morning to review that Long Term Plan so I can now report back to you on our progress.

Mission Accomplished

• Challenge low-bid, flat-fee contracts in Maricopa and other counties and municipalities.

It is essential that we create an indigent defense system in which the financial incentives of indigent defense service providers are in line with the interests of our clients. Flat fee contracts do not work: they put pressure on an attorney to resolve cases too quickly - before the attorney has an opportunity to zealously defend legal and factual allegations. When an attorney makes $750 for a case that proceeds to three days of trial, there is no way to support an office. Thus an inherent conflict exists between the lawyers' interest as business owners, which is to maximize profits, and the lawyers' duties to the client. Of course defense attorneys are generally altruistic by nature, but the system must not be allowed to exploit our gentle natures by failing to fund indigent defense adequately. The pressure is particularly acute in the context of flat fees in capital cases, as an attorney cannot simply resolve one case quickly in order to devote more time to another. Instead, in the flat fee system that existed in Maricopa County in 2006, attorneys were forced to accept more capital cases to generate revenue.

This past year AACJ worked closely with County officials to negotiate hourly rates for attorneys and staff representing capital defendants. Thus attorneys are able to work fewer cases more diligently while still allowing them to support their office expenses on a monthly basis. Additionally, AACJ has worked for many years to force implementation of a quality assurance committee to monitor indigent defense service providers. While we have successfully placed several AACJ members on the committee to review capital attorney applications in Maricopa County, we still have a way to go. We continue to meet with County leadership to promote fair wages for a fair days work; we continue to stress the need for quality assurance review; and we will continue to pursue both diplomatic and judicial remedies.

We remain diligent. Counties across Arizona are predicting significant shortfall in their projected revenues. As a result, some counties are requiring cuts to already overburdened indigent defense offices. AACJ member Diane Meyers is currently representing the Mohave County Public Defender Dana Hlavac, as County officials are refusing to provide funds for indigent defense. In Mohave County more than 30 defendants go unrepresented, and Michael Terribile has organized a contingent of AACJ attorneys to represent these defendants in the same litigation. The case in Mohave County has been designated "Historic", so all records of the matter will be sent to the State archive to be preserved in perpetuity. The Mohave County litigation promises to be the template for future statewide litigation and sends a message to every other county that we will stand together and we will stand tall.

• Determine the feasibility of hiring an event planner and/or additional staff for special events and seminars. Negotiate and/or litigate appropriate funding and quality assurance standards and enforcement for indigent representation.

• Develop a national seminar to accentuate the high levels of expertise of our members and the natural attractions of our State.

Arizona attorneys have long been in the vanguard on issues of criminal defense. (See Miranda, Ring, etc., etc.) We are now taking the opportunity to showcase our legal talent and our amazing state by sponsoring a national seminar in March of 2008 in conjunction with Cactus League Spring Training. We have an all-star team of local and national speakers. We owe a special thanks to Debbie Hill for her effort organizing the seminar in the early stages and to suggesting Karolyn Kiburz, our event planner who has done such a wonderful job with the State Bar convention for so many years.

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• Create discussion forums by specialty area. Check.
  

• Prepare an amicus brief to the Arizona Supreme Court in Reynaga to preserve the remedy of reinstatement of plea agreements when a client receives ineffective assistance of counsel at the plea negotiation stage (Donald). Check.

• Co-sponsoring joint seminars, especially "Mini-CLEs" on timely and relevant topics.

This year we worked with Gary Kula at the City of Phoenix Public Defender's Officer to present a year-end Ethics CLE. We also sent attorneys to the Mohave County Public Defender's and the Maricopa County Public Defender's to present sessions to their new attorney training classes and to offer first year public defenders one year free membership to AACJ.

• Develop our working relationships and mutual assistance with the following organizations:

Arizona Public Defender Association. We participated in a joint session of our governing boards to discuss areas of common interest and to plan for future working projects.

Arizona Capital Representation Project. We maintain a seat on the Board of this important organization with capital defense attorney John Canby as our representative.

Arizona Death Penalty Forum.

Arizona American Civil Liberties Union. AACJ has worked with both the local and national ACLU on immigrant rights issues and is in the process of assisting with issues related to freedom of speech and assembly.

Mexican Consulate Legal Assistance Project. Greg Kuykendall, an AACJ member, is currently the national director of this program, and two AACJ members act as staff counsel.

This past year, AACJ also forged additional alliances with the following agencies:

Arizona Society of Professional Journalists. Again with the initiative of Debbie Hill, AACJ sponsored a joint program with SPJ to educate the press on several issues important to the defense community. We contemplate holding additional sessions in the future.

Arizona Brain Injury Association. Several of our members have graciously volunteered to offer pro bono legal services to help guide defendants who suffer from brain injuries and their families through the often confusing criminal justice system.

Mexican American Legal Defense and Education Fund. AACJ has worked with this national organization to secure immigrants their rights to due process of law - not an easy task, especially in Arizona.

Arizona Trial Lawyers Association. AACJ found common ground with ATLA, who joined our successful efforts to defeat draconian legislation proposed last year that would have eroded defendant's rights in capital defense and in presenting evidence of mental illness.

• Modify the current cash basis accounting to an accrual basis.

We have reorganized our accounting system to comply with industry standards. This completes a long process of recovery after our fiscal crisis several years ago. We have expenses under control; revenue is relatively steady; there are regular reports to the executive committee and to the board regarding our financial status.

Now that we are healthy, we can take the next steps to increase our financial strength. With a strong Executive Director, we will be able to increase our traditional revenue streams, and we will be able to develop additional revenue, such as sponsorships at our seminars, advertisers in our publication; we will be able to pursue grants and conduct special fund raising events. With more resources, we will be able to offer more to our members and to push forward our agenda throughout the state.

Work to Be Done

• Create a work plan for the Executive Director.

• Develop a peformance evaluation plan for the Executive Director.

For many years, our Executive Director as acted more like an Executive Secretary. We can do more. Our Executive Director should be the face of the organization. A good ED can contribute to the Defender; a good ED can educate the defense bar and even the general public about our organization; a good ED can monitor important issues in the Courts and at the legislature. We are an organization of volunteers, and we need an ED who can work effectively with both our membership and the legal community. In short, we need to re-define the position of Executive Director in order to maximize our effectiveness. While I have attempted to accomplish this goal as set out in the long term plan, it is my hope that we do not lose track of the important duties of this position.

• Abolish Capital Punishment in the State of Arizona.

• Modify Mandatory Minimum Sentencing

In the immortal words of John Lennon, "You may think I'm dreaming, but I'm not the only one." We can accomplish anything we decide to do. But we need a vision. We need to define the end goal, create a strategy, and work effectively together toward that goal. We are in good hands as we go into the future: Jim Belanger will be at the helm; Treasure Van Druemel, a long time leader in the criminal defense community has been elected to the Board of Governor's; and we have seen the emergence of the next generation of leadership in the election of Tracy Friddle and many others. We have taken giant steps toward our destination, but our journey is not over yet.

I want to thank everyone again for the opportunity to serve. It has been the experience of a lifetime; I would gladly do it again, and I would recommend it to every one of you. You too have the chance to play a major role in our organization.

My parting advice to you - take it.

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